* Pursua nt to 5 T H C IR

. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

December 28, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

04-60113

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CRAIG ALLEN PRUITT,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Mississippi

(1:02-CR-136-ALL)

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM: *

Craig Allen Pruitt, a paid tax preparer, appeals his

conviction and sentence. He was convicted for 17 counts of aiding

or assisting in the filing of fraudulent federal tax returns in

violation of 26 U.S.C. § 7206(2). A jury found Pruitt filed tax

returns asserting false or fraudulent deductions for business and

bad-debt losses, and the district court, employing the United

States Sentencing Guidelines, imposed a 63-month sentence.2

Pruitt contends: the district court abused its discretion by

admitting evidence of a 1987 conviction for filing fraudulent

federal tax returns; the evidence presented at trial was

insufficient to support a conviction; and, his sentence was

calculated incorrectly and based improp erly on false returns for

which he was not charged.

We review evidentiary rulings for abuse of discretion. See

F ED

. R. E VID

. 103; e.g., United States v. Peters

, 283 F.3d 300, 307

(5th Cir.), cert. denied sub nom Edmonson v. United States

, 535

U.S. 1071 (2002). The district court did not abuse its discretion

by admitting evidence of Pruitt’s 1987 conviction. This crime was

essentially identical to the charged offense, and evidence of

Pruitt’s prior crime was relevant to, and probative of, his

knowledge and intent to commit the present offense. F E D

. R

. E VID

.

404(b). The probative value of the 1987 conviction was not

outweighed by the danger of undue prejudice. S ee F ED

. R. E VID

. 403;

United States v. Beechum

, 582 F.2d 898, 911 (5th Cir. 1978) ( e n

banc ), cert. denied , 440 U.S. 920 (1979).

When reviewing an insufficient evidence claim, we de termine

“whether, after viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt”. U nited

States v. Pena

, 949 F. 2d 751, 755 (5th Cir. 1991). Based on the

evidence before it, a rational jury could have found the essential3

elements of the charged tax c rimes beyond a reasonable doubt.

Testimony by Internal Revenue Service (IRS) employees and taxpayers

for whom Pr uitt prepared the fraudulent returns provided the

evidentiary basis for a rational jury to determine that Pruitt

willfully aided in the preparation and presentation of documents

that were materially fraudulent or false. S ee United States v.

Clark

, 139 F.3d 485, 489 ( 5th Cir.), c ert. denied

, 525 U.S. 899

(1998). Pruitt’s claim that the Confrontation Clause requires the

Government to call every signat ory from every fraudulently filed

tax return is misplaced, and the Government was not obligated to

call additional witnesses to disprove eve ry possible theory of

defense. E.g., United States v. Williams , 264 F.3d 561, 576 (5th

Cir. 2001).

We review for clear error a district court’s factual

determinations and imposition of a sentence and de novo its legal

conclusions for applying the Sentencing Guidelines. E.g., United

States v. Hooten

, 942 F.2d 878, 880 (5th Cir. 1991). The district

court properly based Pruitt’s sentence on all relevant conduct

pursuant to the Sentencing Guidelines § 1B1.3. An IRS agent’s

detailed testimony established Pruitt’s preparation of many other

false returns. Despite Pruitt’s contention, the claimed tax loss

did not need to be calculated at 28% of the disallowed deductions

because it was based on the IRS’ “more accurate determination” of

actual loss as shown by disallowed refunds. S ee U.S.S.G.4

§ 2T1.1(c)(1) (comment. n.(B)) (Nov. 1998). The loss amount was

not clearly erroneous. See Clark , 139 F.3d at 490.

Pruitt also asserts the Sentencing Guidelines are

unconstitutional under Blakely v. Washington

, 124 S. Ct. 2531

(2004). As he concedes, however, this court has held otherwise.

United States v. Pineiro

, 377 F.3d 464, 473 (5th Cir. 2004),

petition for cert. filed

, (U.S. 14 July 20 04) (No. 04-5263).

Pruitt raises the issue only to preserve it for possible Supreme

Court review.

AFFIRMED