     Case: 18-60273      Document: 00515358399         Page: 1    Date Filed: 03/25/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                    No. 18-60273                         March 25, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JUDY HARMON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:16-CR-38-10


Before WIENER, COSTA, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Judy Harmon appeals her sentence for conspiracy
to possess methamphetamine with intent to distribute. Harmon raises two
issues on appeal. She first complains that the district court procedurally erred
in holding her accountable for 60 pounds of methamphetamine, contending
that the trial testimony regarding drug quantity was inconsistent with
notations in ledgers kept by her co-conspirators to track her drug purchases.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-60273

She expressly contends that the district court did not sufficiently scrutinize the
testimony and the ledgers and failed to provide a rationale for accepting the
testimony over the ledgers.
      Harmon does not dispute the Government’s assertion that the ledgers
cover only a portion of her nearly year-long involvement in the drug conspiracy.
Her co-conspirator, Gerardo Lima, testified that the notations in a ledger
detailing Harmon’s activity during a single month were a low representation
of the amount of drugs that she generally obtained from him and sold to her
customers. The ledgers are not inconsistent with Lima’s testimony that he
generally provided Harmon with nearly 10 pounds of methamphetamine a
month for almost a year. Lima’s testimony as to the amount of drugs he
supplied to Harmon was consistent with the testimony of Harmon’s customers
regarding the quantities they purchased. In light of the record as a whole, the
district court’s factual finding of 60 pounds was plausible and does not amount
to clear error. See United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.
2005).
      Next, Harmon insists – for the first time on appeal – that, contrary to
Federal Rule of Criminal Procedure 32, the Due Process Clause, and U.S.S.G.
§ 6A1.3, p.s., the district court erred in failing to provide her with notice of its
intention to rely at sentencing on evidence outside the record. She complains
specifically of the court’s consideration of Lima’s testimony from the sentencing
hearing of another co-conspirator, Thomas Scruggs, in making its factual
finding of drug quantity.
      Notwithstanding the absence of notice, the offense conduct contained in
Harmon’s presentence report, which was based on Lima’s testimony at
Harmon’s trial, sufficiently supports a drug quantity finding of 60 pounds and
a resulting offense level of 36. Harmon “ha[d] actual knowledge of the facts on



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                                 No. 18-60273

which the district court base[d]” her offense level assessment, so she has failed
to show that the district court committed clear or obvious error. United States
v. Garcia, 797 F.3d 320, 323 (5th Cir. 2015) (internal quotation marks and
citation omitted). Even if the court had plainly erred, Harmon cannot show a
reasonable probability that, but for any error, she would have received a lower
sentence. See United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). She
thus cannot show an impact on her substantial rights. See id.
      AFFIRMED.




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