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United States v. Dennison

United States Court of Appeals, Fourth Circuit

May 29, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
EZEKIEL DENNISON, a/k/a OG, Defendant-Appellant.

          Argued: March 21, 2019

          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:

          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.

          Before GREGORY, Chief Judge, NIEMEYER, and MOTZ, Circuit Judges.

          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. After a Rule 35(b) motion, however, 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 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 ...


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