                                                          United States Court of Appeals
                                                                   Fifth Circuit
                                                                F I L E D
                                                                  July 27, 2005
                    UNITED STATES COURT OF APPEALS
                             FIFTH CIRCUIT                  Charles R. Fulbruge III
                                                                    Clerk

                             No. 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)


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:*

     This court affirmed Craig Allen Pruitt’s conviction for aiding

or assisting in the filing of fraudulent federal tax returns, in

violation of 26 U.S.C. § 7206(2), and his 63-month sentence.

United States v. Pruitt, 04-60113, 2004 WL 2988568 (5th Cir. 28

December 2004).     The Supreme Court granted Pruitt’s petition for

writ of certiorari and for leave to proceed in forma pauperis


     *
        Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
(IFP); vacated our previous judgment; and remanded the case for

further consideration in the light of United States v. Booker, 543

U.S. ___, 125 S. Ct. 738 (2005).         Pruitt v. United States, 125 S.

Ct. 1668 (2005).    We requested, and received, supplemental briefs

addressing the impact of Booker.        Having reconsidered our decision

pursuant to the Supreme Court’s instructions, we reinstate our

judgment affirming the conviction, but vacate the sentence and

remand to the district court for re-sentencing in accordance with

Booker.

      Pruitt contends he preserved Booker-error in district court

when he objected to the Presentence Investigation Report (PSR) used

to calculate his sentence and contended his sentence was based

improperly on false returns for which he was not charged and to

which he did not plead guilty.           Therefore, Pruitt asserts his

sentence should be vacated and remanded to the district court for

further consideration.     See United States v. Akpan, 407 F.3d 360,

376-77 (5th Cir. 2005).     The Government concedes Pruitt preserved

Booker-error in district court, but urges our court to review for

harmless error.    Although Pruitt never explicitly mentioned the

Sixth Amendment or Blakely v. Washington, 124 S. Ct. 2531 (2004),

until his appellate brief (he was sentenced several months before

Blakely was rendered), we are satisfied that his objections in

district court adequately appraised the court that he was raising

a   Sixth   Amendment   objection   to    the   basis   for   the   sentence

                                    2
calculation     because   the    court       considered    fraudulent     returns

attributable to Pruitt but neither pleaded to nor proved to a jury

beyond a reasonable doubt (he claimed such use was “fundamentally

unfair”).     See Akpan, 407 F.3d at 376.

      “[I]f either the Sixth Amendment issue presented in Booker or

the issue presented in Fanfan is preserved in the district court by

an objection, we will ordinarily vacate the sentence and remand,

unless we can say the error is harmless under Rule 52(a) of the

Federal Rules of Criminal Procedure.”            United States v. Mares, 402

F.3d 511, 520 n. 9 (5th Cir. 2005); see also United States v.

Olano, 507 U.S. 725, 734 (1993) (noting that harmless error applies

when a defendant makes a timely objection to an error).                Rule 52(a)

states:     “Any error, defect, irregularity, or variance that does

not affect substantial rights must be disregarded”.                  FED. R. CRIM.

P.   52(a).     “An   error     affects      substantial    rights    (i.e.,   is

prejudicial) if it affects the outcome of the district court

proceedings.    Consequently, an error is deemed harmless if it did

not affect the outcome of the district court proceedings.”                 United

States v. Pineiro, 410 F.3d 282, 285 (5th Cir. 2005) (internal

citations omitted).

      The Government bears the burden of showing that the error was

harmless.     Olano, 507 U.S. at 734.             To meet this burden, the

Government must demonstrate, beyond a reasonable doubt, that the



                                         3
error did not affect the defendant’s sentence.             Akpan, 407 F.3d at

377.

       The district court committed Booker error by basing Pruitt’s

sentence, under a mandatory guidelines regime, on a greater number

of fraudulent returns than the jury found him responsible.                   See

Booker, 125 S. Ct. at 756.      Accordingly, we must decide whether the

Government   has   met   its   “arduous     burden”   of   showing    beyond a

reasonable doubt that the district court would have imposed the

same sentence absent the error.           Pineiro, 410 F.3d at 287.

       The Government contends the record establishes harmless error

beyond a reasonable doubt.        The Government maintains the district

court found that the evidence, adduced at trial and submitted in

the PSR, sustained the sentence imposed.               The Government also

asserts: the 63-month sentence imposed is less than the statutory

maximum possible for two of the counts for which Pruitt was

convicted; nothing in the sentencing transcript indicates the

district court     would   have   imposed     a   lesser   sentence    had   the

Guidelines not been mandatory; the district court found there was

no reason to depart from the Guidelines; and the sentence is

reasonable because it falls within the Guidelines range.               (Pruitt

does not address harmless error, instead contending, under Akpan,

that his sentence should be vacated and remanded.)

       The Government does not meet its “arduous burden”.             It points

to no record evidence that proves, beyond a reasonable doubt, that


                                      4
the district court would not have sentenced Pruitt differently

under an advisory regime.

            CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED




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