NOT RECOMMENDED F OR P UBLICATION File Na me: 11a0547n.06 No. 10-3340 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v.

GREGORY L AMONT PRUDE, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE SOUTHERN D I STRI CT OF OHI O

Be fore : KENNEDY , SI L ER, and McKEA GUE, Circuit Judges. SILE R , Circuit J udg e. Def endant Gre g ory Prude pleade d g uilty to conspirac y to distribute

an d possess with intent to distribute marijuana , in violation of 21 U.S.C. §§ 841 and 84 6 , an d conspirac y to commit money launder ing, in violation of 18 U.S.C. § 1956. At sentenc ing, the district court found be tween 1,000 a nd 3,000 kilogr ams of marijuana wer e rele vant to the offe nse, re ly ing in part on testimony from a separ ate hear ing. Prude now appea ls, arg uing that the district court err ed when it consider ed that testimony . For the re asons stated be low, we AF F IRM

. I

. At his plea hear ing, Prude admitted that, from late 20 0 6 t h ro u gh 2 007, he supplied coco n s pirator Donald Dailey and others with marijuana

. He also admitted that he issued ch ec k s t o Dailey draw n from t h e acc ount of his contra cting business in exchang e for cash derive d from Dailey ’s sale of marijuana

. The parties ag ree d that the conspirac y involved at least 50 kilogr ams ofNo. 10-3340

United States v. Prude marijuana , but intended to arg ue the total amount of marijuana that should be attributed to Prude at the sentenc ing he aring

. The district court conducte d an evidenti ar y h ea ri n g in 2009 to deter mine the amount of marijuana that should be attributed to Prude. Artis Everma n, who pl eade d g uilty

to conspirac y to distribute marijuana , implicated Prude in at lea st 1,104 pounds of marijuana. D ailey testified t hat he observe d Prude acquir e 100 pounds of marijuana on one occa sion; that he saw Prude with 1,200 pounds of marijuana on another occa sion; and that he sold Prude 350 pounds of marijuana a month fo r 1 8 m onths, totaling 6,300 pounds. Dailey also testified that Prude allowed him to u s e h i s

war ehouse two or

three times to unload 800 to 1,200 pounds of marijuana f rom trucks. Ag ent S tephen Blunk testified t hat, during surveillance of Prude’s wa rehouse , a truck was

s ea rc hed and $100,000 in cash was found. He also testified that a sear ch of a van leaving the

war ehouse reve aled approximately 1,200 pounds of marijuana

. During the evidentiar y hear i n g, Blunk rela

y ed the truck drivers’ testimony from the trial of a van occupa nt, stating that “[t] he truck drivers indicated during their testimony that they had delivere d at least four ti me s to th a t w a rehouse .” Blunk also testified t hat, during t he earlier trial, one of the t ruck drivers identified Prude as b ei n g prese nt dur ing a prior delivery

. Prude admitted that he sold some marijuana , but he denied that he allowed the va

n occupa nts to deliver marijuana

to his warehouse

. The court conducte d a sentenc ing hear ing about six months later. I n deter mining the amount of m arijuana attributable to Prude as rele vant conduct, it specifi cally set forth all of t he testi mony discussed above , including that Dailey testified that he sold Prude what amounted to 2,800 kilogr ams of m arijuana

. The dist rict court acknow ledg ed that it had the benef it of hear ing the truck drivers’ - 2 -No. 10-3340

United States v. Prude testimony from a prior hearing and noted that t h e t ru ck drivers testified t hey made four deliveries
to Prude’s war ehouse, including one wher e Prude was prese nt. I t expressly “incor porate [d] the testimony that it pr eviously hear d in those trials as well as Spec ial Ag ent B lunk’s testimony about what he observe d g oing on at this war ehouse.” The district court t h u s fo u n d that Prude was responsible for 1,000 to 3,000 kilogr ams of marijuana as rele vant conduct, resulting in a Guidelines rang e of 108 to 135 months. During allocution, Prud e denied knowing Everma n or dealing with the persons who wer e

arr ested with marijuana afte r leaving his war ehouse. The district court responde d , “[ B] u t d o y ou understand that Mr. Dailey ’s testimony alone place s y ou in the 2800 rang e . . . that alone is enoug h
to place y ou in this highe r rang e? ” I t then sentenc ed Prude to 100 months’ imprisonment. Prude did
not object to his sentenc e. He now appea ls, challeng ing the district court’s use of the truck drivers’ testimony from the se para te trial. I I

. Be cause Prude did not object to the district court’s use of the truck drivers’ testimony from the separ ate hear ing, we revie w for plain err or. United States v. Mee ker , 411 F.3d 736, 741 (6th Cir. 2005). Under Fe dera l Ru l e o f Criminal Procedur e 32, the s entenc ing court m ust disclose m ost of the i nformation upon which it relies. United St ates v. H a ye s , 1 7 1 F. 3 d 389, 392 (6th Cir. 1999). Rule 32 g ives the defe ndant “t h e ri gh t to revie w other information relied on by a court at sentenc ing,” id. , and require s that the defe ndant have an opportunity “to comment on the probation office r’s deter

minations and other matters rela t ing to an appropr iate sentenc e,” Fe d. R. Crim. P. - 3 -No. 10-3340

United States v. Prude 32(i)(1) (C). We need not decide whether Rule 32 was violated in this case beca use, even if it wer e, it did not affec t Prude’s substantial rig hts. I n the Rule 32 context, we g ener ally will not reve rse if “the other evidenc e alre ady befor e the
sentenc ing judge and a part of the prese ntence rec ord fully supported the judge ’s ultimate finding .” United States v. Patrick , 988 F.2d 641, 648 (6th Cir. 1993). Also, if the defe ndant has acc ess to the information in prepa

ring his appea l, he must explain how he could have “ef fec tively rebutted” that evidenc e. Mee ker , 411 F.3d at 742. Thus, “whe re a defe ndant has had an opportunity to revie w the evidenc e relied upon by the district court, an explanation of how the defe ndant was p re j u d i ce d is require d.” Id. I n addition, a Rule 32 err or i s harmless if advanc e noti ce would not have provide d the defe ndant “with any

additional incentive or ability to c halleng e the acc urac y of the evidenc e.” Patrick , 988 F.2d a t 648. Her e, the “other evidenc e alre ady befor e the sentenc ing judge and a part of the prese ntence

rec ord” from Prude’s evidentiar y hear ing “fully supported the judge ’s ultimate finding .” Id. I ndeed,
t he district court acknow ledg ed that “Da iley ’s testimony alone place s [P rude] in the 2800 [ k i l o ] rang e” and “that alone is enoug h to place [P rude] in this highe r rang e.” Thus, reg ardle ss of the truck drivers’ testimony , there was ample evidenc e to support the di strict court’s determination t hat t he amount of marijuana

exceede d 1,000 kilogr ams. Also, Prude never ex plained how he would have rebutted the truck drivers’ t estimony had he known that the district court was g oing to consider all of it. See Mee ker , 411 F.3d at 742. Transc ripts of the testimony of the two t ru ck d ri vers wer e filed in the rela ted case on Aug ust 14, 2009, befor e Prude’s evidentiar y and sentenc ing hear ings. Prude could have acc essed these publicly

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United States v. Prude available documents and asce rtained what the outside information said. Cf. Haye s , 171 F.3d at 394 (re versing wher e the defe ndant had no way of seeing the evidenc e relied upon by the district court). Be cause he had an opportunity to revie w the truck drivers’ testimony when prepa ring his appea l, Prude was require d to e x plain how he wa s prejudice d. See M eek er , 411 F.3d a t 742. Prude failed
to do so and there fore did not meet his burden of demonstrating that his substa n t i al rig hts wer e aff ecte d. See id. Fin al l y , ad v ance notice would not have provided Prude “with any additional incentive or ability to challeng e the acc urac y of the evidenc e.” Patrick , 988 F.2d at 648. Since Prude knew that the amount of marijuana involved in the offe nse was at issue, he had “ade quate incentive to prese nt any evidenc e or arg uments he could” to minimi ze the amount of marijuana that could be attributed
to him. Id. Moreove r, Prude knew that the district c ourt could consider some of the truck drivers’ testimony beca

use i t was elicited throug h Blunk at the evidentiary hear ing. Prude was then given the opportunity to contra dict the truck drivers’ testimony by deny ing that he knew his war ehouse was being used for marijuana deliverie s. There fore , the truck drivers’ testimony from the separ ate trial was “ subject to the same a rg uments in rebuttal” a s evidenc e of w hich Prude wa s awa re. Id. I n sum, Prude was not prejudice d by failing to rec eive advanc e notice that the district court would consider all o f t h e truck drivers’ testimony from the prior trial. See id. Thus, any err or committed by

the district court did not aff ect Prude ’s substantial rig hts. AF F IRMED

.

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