United States v. Ezekiel Dennison

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 18-4010
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
EZEKIEL DENNISON, a/k/a OG,
Defendant – Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Florence. Terry L. Wooten, Senior District Judge. (4:05-cr-00889-TLW-1)
Argued: March 21, 2019 Decided: May 29, 2019
Amended: August 21, 2019
Before GREGORY, Chief Judge, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by published opinion. Chief Judge Gregory wrote the opinion, in which
Judge Niemeyer and Judge Motz joined.
ARGUED: Mario A. Pacella, STROM LAW FIRM, LLC, Columbia, South Carolina,
for Appellant. Lauren L. Hummel, OFFICE OF THE UNITED STATES ATTORNEY,
Florence, South Carolina, for Appellee. ON BRIEF: Sherri A. Lydon, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South
Carolina, for Appellee.
GREGORY, Chief Judge:
Appellant Ezekiel Dennison appeals the district court’s order revoking his term of
supervised release and sentencing him to 36 months’ imprisonment. Reviewing for plain
error, we conclude that there was error and it was plain. Because the error did not affect
Dennison’s substantial rights, however, we affirm the judgment of the district court.
I.
On January 30, 2006, Dennison pleaded guilty to conspiracy to possess with the
intent to distribute narcotics in violation of 21 U.S.C. § 841. He was initially sentenced
to 192 months’ imprisonment, followed by a 10-year term of supervised release.
Dennison’s sentence was reduced in February 2013 to 150 months’ imprisonment, and
the sentence was reduced again in May 2015, this time to 140 months, after a Sentencing
Guidelines amendment. Dennison began serving his supervised release term on
December 4, 2015.
On January 31, 2017, Dennison’s probation officer petitioned the court to revoke
his supervised release on the basis that Dennison illegally used cocaine and associated
with a convicted felon. The court found him guilty of both Grade C violations and
modified the conditions of his supervised release to include 120 days of home
confinement with electronic monitoring. On October 27, 2017, the probation officer filed
another petition to revoke Dennison’s supervised release, alleging the following
violations: (1) new criminal conduct—possession with intent to distribute crack cocaine
(Grade A violation); (2) new criminal conduct—simple possession of marijuana (Grade C
2
violation); (3) illegal drug use—cocaine (Grade C violation); (4) association with a
convicted felon without permission (Grade C violation); (5) failure to submit to drug
testing as instructed (Grade C violation); and (6) failure to comply with home
confinement (Grade C violation). At issue here is only the Grade A violation for
possession with intent to distribute crack cocaine.
On December 19, 2017, the district court held an evidentiary hearing on the
allegations that Dennison violated the terms of his supervised release. The evidence
showed the following.
On August 31, 2017, Officer Chad O’Riley of the Myrtle Beach Police
Department (“MBPD”) and other members of the MBPD street crimes unit were
surveilling a Food Lion in response to several anonymous complaints about drug deals
taking place in the parking lot. During this surveillance, Officer O’Riley testified, he
watched a blue minivan pull into the parking lot and saw several people who had been
waiting by their cars run over to the van and engage in “a hand-to-hand exchange of
money for something else which was consistent with narcotics sales.” The van
eventually left the parking lot, and the officers conducted a traffic stop a short time later
after observing the vehicle commit a traffic infraction. Officer O’Riley testified that the
officers arrested the three individuals in the vehicle for unrelated offenses and that one of
the individuals “had a large quantity of narcotics, specifically, crack and heroin on his
person.”
After transporting the individuals to Myrtle Beach Jail, the officers conducted
post-Miranda interviews with two of them. According to Officer O’Riley, these
3
individuals explained that “Zeek” “would purchase vehicles and register them in other
people’s names for the primary use to transport narcotics and distribute narcotics.”
Officer O’Riley testified that he showed the individuals “a DMV photo of Mr. Ezekiel
Dennison, at which time they positively identified him as Zeek who they knew.” Officer
O’Riley said he also spoke with several other subjects during his investigation and that
these individuals gave him information about Dennison and his work as “a drug supplier
in the Myrtle Beach area.”
On October 16, 2017, the officers conducted a trash pull at Dennison’s residence.
In the trash can marked for “Unit 1,” Dennison’s unit, Officer O’Riley found 11 or 12
plastic sandwich bags with the corners ripped off—a common practice, he said, “for drug
dealers who are packaging specifically crack cocaine.” Officer O’Riley further explained
that he observed in one of the bags a white powder substance that field-tested positive for
cocaine. He also found, in the same bag, a handwritten receipt signed by “Ezekiel
Benson” and a crack pipe. A day after this trash pull, Officer O’Riley obtained a search
warrant for Dennison’s residence.
On October 18, 2017, the day after obtaining the warrant, MBPD officers and
SWAT team members executed it. Austin Cox, an MBPD officer who was assisting with
the operation, testified that the SWAT team rammed in the door of Dennison’s residence
after conducting a knock-and-announce. According to Officer Cox, SWAT team
members found Dennison in the bathroom with his hands up, and they also heard a toilet
flush and water running in the bathroom. Officer Cox said that another person was
4
discovered in the dining room. Both Dennison and this person were detained and
escorted outside the home.
During the search of the residence, Officer O’Riley discovered contraband in the
bedroom that was adjacent to the bathroom in which Dennison was found. Specifically,
Officer O’Riley testified that he saw a candle sitting on a shelf above a nightstand and
that in this candle he spotted in plain view six plastic bags of suspected controlled
substances—four of marijuana and two of cocaine. Officer O’Riley explained that the
packaging for the suspected “cocaine or cocaine base” was similar to the packaging he
found in the trash pull. In his search of the bedroom, Officer O’Riley also discovered
mail belonging to Dennison, sandwich bags, rubber bands, cell phones, digital scales, and
about $7,500 in cash. 1
Officer O’Riley field-tested both of the substances he found in the bedroom. The
suspected marijuana tested positive for THC, and the “white rock-like substance”
testified positive for “cocaine or cocaine base.” As relevant here, Officer O’Riley placed
the two cocaine substances in a SLED B.E.S.T. pack and sent them for testing.
Courtney Johnson, a forensic chemist with the Horry County Police Department
who was admitted as an expert in forensic chemistry and drug analysis, testified about the
substances she received from Officer O’Riley. Johnson reported without objection that
the two substances tested positive for cocaine, weighing 0.9 grams and 0.3 grams. She
1
According to Officer O’Riley, one of the cell phones had about 200 missed calls
within a four- or five-hour period—evidence, in his experience, that Dennison was using
a dispatch number to facilitate drug dealing.
5
confirmed on cross-examination that both substances were powder cocaine, not cocaine
base or crack. Officer O’Riley, for his part, similarly recognized that the two bags he
confiscated contained powder cocaine. At the same time, he acknowledged that the
warrant in this case “was for possession with intent to distribute cocaine base or . . . crack
cocaine,” rather than powder cocaine.
At the close of the evidence, the district court found Dennison guilty of each of the
violations by a preponderance of the evidence. The court devoted most of its discussion
to Violations 1 and 2—possession with intent to distribute crack cocaine and simple
possession of marijuana, respectively. In finding that the government established these
violations, the court noted that a utility bill connected Dennison to the searched apartment
and that he was found near the bedroom in which law enforcement discovered drugs
packaged for sale, baggies, rubber bands, cell phones, scales, and a large amount of
cash—all evidence that Dennison intended to distribute the drugs. The court also
considered the contents of the trash pull, including the sandwich bags with cut corners,
the white powder substance in one of the bags, and the crack pipe. Based on this
evidence, the court held that the government met its burden and proved by a
preponderance of the evidence that Dennison “possessed drugs with the intent to
distribute those drugs, specifically, cocaine, and [he], in fact, possessed marijuana.” The
court did not discuss the crack/cocaine issue that surfaced during the hearing—
specifically, it did not address the fact that the petition for revocation alleged that
Dennison possessed crack cocaine with the intent to distribute it but the evidence at the
hearing established that the substance involved was powder cocaine.
6
After noting that Dennison committed a Grade A violation—possession with
intent to distribute a controlled substance—the court explained that his policy statement
range was 37 to 46 months given his criminal history category of IV. The court then
revoked Dennison’s supervised release and sentenced him to 36 months’ imprisonment,
with no supervision to follow. The criminal judgment that was issued reflected that
Dennison had been found guilty of possession with intent to distribute “crack cocaine.”
Dennison’s counsel initially filed an Anders brief, arguing that the appeal
presented no meritorious issues but questioning the sufficiency of the evidence
supporting the “crack cocaine” violation. See Anders v. California, 386 U.S. 738
(1967). 2 Specifically, counsel argued that the evidence was insufficient to show
possession, intent to distribute (given the small drug quantity), or that the drug involved
was crack cocaine.
After reviewing the Anders brief and the record in this case, we concluded that the
appeal presented a nonfrivolous issue stemming from the fact that Dennison was found
guilty of a violation involving a specific drug (crack cocaine) that was not the drug
actually involved in the violation (powder cocaine). We therefore directed counsel for
2
Under Anders, “if counsel finds his case to be wholly frivolous, after a
conscientious examination of it, he should so advise the court and request permission to
withdraw.” 386 U.S. at 744. “That request must, however, be accompanied by a brief
referring to anything in the record that might arguably support the appeal.” Id. It then
becomes the court’s responsibility to determine, “after a full examination of all the
proceedings,” whether the case is wholly frivolous. Id. If the court so concludes, it may
grant the request to withdraw. Id. But if the court determines that nonfrivolous
arguments exist, it must afford the defendant assistance of counsel to argue the appeal.
Id.
7
Dennison and the government to submit merits briefs on whether there was sufficient
evidence to show that the drug involved in Violation 1 of the criminal judgment was
crack cocaine. We also invited Dennison’s counsel to brief any other nonfrivolous issues
supported by the record. The arguments presented in this briefing are now before us.
II.
Dennison contends that the district court erred because the evidence was
insufficient to support a finding of guilt for possession with intent to distribute crack
cocaine. He argues primarily that the evidence does not establish that the drug involved
was crack cocaine rather than powder cocaine and that the district court failed to make
the findings required to sustain a supervised release violation based on crack cocaine.
This Court generally reviews a district court’s decision to revoke a defendant’s
supervised release for abuse of discretion, and we review the factual findings underlying
a revocation for clear error. See United States v. Padgett, 788 F.3d 370, 373 (4th Cir.
2015). But because Dennison did not object to the revocation of his supervised release
on the basis identified in this Court’s supplemental briefing order, we review only for
plain error. See United States v. Olano, 507 U.S. 725, 732–34 (1993). Under this
standard, Dennison must show (1) an error, (2) that is plain, and (3) that affected his
substantial rights, which typically means that the error “must have affected the outcome
of the district court proceedings.” Id. at 734. We will correct the error, moreover, only
“where not doing so would result in a miscarriage of justice, or would otherwise seriously
affect the fairness, integrity or public reputation of judicial proceedings.” United States
8
v. Whitfield, 695 F.3d 288, 303 (4th Cir. 2012) (quoting United States v. Robinson, 627
F.3d 941, 954 (4th Cir. 2010)).
We have little reluctance in concluding that there was error and it was plain. The
record contains no evidence that the drug involved in the violation was crack cocaine.
The forensic chemist testified that the substances recovered were powder cocaine rather
than crack cocaine, and Officer O’Riley likewise confirmed in his testimony that the
substances turned out to be powder cocaine. Based on this testimony and other evidence,
the district court concluded that Dennison possessed “cocaine” with the intent to
distribute it, but the court did not address the fact that the petition for revocation
described the violation as involving “crack cocaine.” See J.A. 16 (petition listing
“Violation Number 1” as “possession with intent to distribute crack cocaine”). In
revoking Dennison’s supervised release, moreover, the district court entered a criminal
judgment showing a violation involving crack cocaine despite the lack of evidence of
crack cocaine presented at the revocation hearing. It was thus error for the court to enter
an order revoking Dennison’s supervised release on the basis that he possessed crack
cocaine with the intent to distribute it.
Despite this plain error, however, Dennison cannot show that the error affected his
substantial rights and changed the outcome of the proceedings. See Olano, 507 U.S. at
732–34. As an initial matter, ample evidence supports the district court’s conclusion at
the hearing that Dennison possessed cocaine with the intent to distribute it. See 18
U.S.C. § 3583(e)(3) (district court need only find a violation of a condition of supervised
release by a preponderance of the evidence); United States v. Copley, 978 F.2d 829, 831
9
(4th Cir. 1992) (same). As the district court recognized, the amount of cocaine
discovered was indeed small at only 1.2 grams, but the evidence otherwise strongly
indicated that Dennison possessed drugs with the intent to distribute them—he was found
in his own residence near a bedroom where officers discovered in plain view drugs
packaged for sale, sandwich bags, rubber bands, several cell phones, scales, and a large
sum of cash. The trash pull from Dennison’s residence yielded additional evidence,
including sandwich bags with cut corners, one of which contained a white powder
substance that tested positive for cocaine. This record supports the conclusion that
Dennison violated a condition of supervised release by possessing cocaine with the intent
to distribute it. 3
Dennison’s violation for possessing and intending to distribute cocaine—like such
a violation for crack cocaine—constitutes a Grade A violation of supervised release
requiring the district court to revoke his supervised release term. See U.S.S.G.
§ 7B1.3(a)(1) (“Upon a finding of a Grade A or B violation, the court shall revoke . . .
supervised release.”); id. § 7B1.1(a)(1) (explaining in part that Grade A violations
include conduct constituting a federal, state, or local controlled-substance offense
punishable by an imprisonment term exceeding one year); S.C. Code §§ 44-53-370(a)(1),
(b)(1), § 44-53-375(B) (providing that cocaine and cocaine base are controlled substances
and that possessing either with the intent to distribute constitutes a felony). No matter
3
Dennison suggests that the evidence was insufficient to show such a violation in
part because his sister was willing to sign an affidavit saying the drugs were hers. No
such affidavit came before the district court, however, and in any event the evidence
overwhelmingly tied Dennison to the drugs.
10
whether the substance was cocaine or crack cocaine, then, the outcome would have been
the same—Dennison committed a Grade A violation of his court-ordered supervised
release term by possessing a controlled substance with the intent to distribute it. See
United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006) (explaining that the
Sentencing Commission, in debating how to sanction violations of supervised release,
chose “to focus punishment on violations of a court order rather than on the particular
conduct giving rise to the revocation”); see also U.S.S.G., Ch. 7, Pt. A, Introductory Cmt.
3(b) (adopting an approach toward sanctioning supervised release violations under which
a violation constituted a “breach of trust”). That Grade A violation required the district
court to revoke Dennison’s supervised release, and it appropriately did so.
Central to our conclusion is the fact that the district court’s error caused Dennison
no prejudice in preparing his defense. The revocation petition that provided notice of the
alleged supervised release violations, though formally misidentifying Violation 1 as
possession with intent to distribute “crack cocaine,” specifically indicated in the conduct
description that the violation was based on the discovery in Dennison’s home on October
18, 2017, of “two bags which contained a white rock powdery substance” that
“field[-]tested positive for the presence of cocaine.” Dennison was thus on notice from
the start of the proceedings that the government would seek to establish at the revocation
hearing that he possessed and intended to distribute the cocaine found in his home on
October 18. This notice was crucial to ensuring that Dennison received the process he
was due as part of the revocation proceedings. See Morrissey v. Brewer, 408 U.S. 471,
11
489 (1972) (due process requires written notice of claimed supervised release violations
among other procedural safeguards).
On this record, Dennison cannot show that the error affected his substantial rights.
We accordingly affirm the judgment of the district court. 4
III.
For the foregoing reasons, we affirm the district court’s order revoking Dennison’s
supervised release.
AFFIRMED
4
We note, however, that the district court retains authority under Federal Rule of
Criminal Procedure 36 to correct at any time the oversight in its judgment—i.e., the
erroneous reference to “crack cocaine” rather than “cocaine” or “powder cocaine.” See
Fed. R. Crim. P. 36 (“After giving any notice it considers appropriate, the court may at
any time correct a clerical error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight or omission.”).
12