                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                                                        F I L E D
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT                          December 28, 2004

                                                                    Charles R. Fulbruge III
                                                                            Clerk
                                  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.




     *
       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this opinion should not be published and is not precedent except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.
     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 improperly on false returns for

which he was not charged.

      We review evidentiary rulings for abuse of discretion.                         See

FED. R. EVID. 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.                        FED. R. EVID.

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

outweighed by the danger of undue prejudice.                  See FED. R. EVID. 403;

United States v. Beechum, 582 F.2d 898, 911 (5th Cir. 1978) (en

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

     When reviewing an insufficient evidence claim, we determine

“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”. United

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

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

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elements of the charged tax crimes beyond a reasonable doubt.

Testimony by Internal Revenue Service (IRS) employees and taxpayers

for whom Pruitt 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.              See United States v.

Clark, 139 F.3d 485, 489 (5th Cir.), cert. denied, 525 U.S. 899

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

Government to call every signatory from every fraudulently filed

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

call additional witnesses to disprove every 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.     See     U.S.S.G.


                                        3
§ 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 2004) (No. 04-5263).

Pruitt raises the issue only to preserve it for possible Supreme

Court review.

                                                        AFFIRMED




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