Plain Error To Revoke Supervised Release Based On Wrong Drug Type, But Not Prejudicial

US v. Dennison: Dennison was on supervised release following a drug conspiracy conviction. His probation officer filed a petition to revoke his release that alleged, among other things, that Dennison committed new criminal conduct by possessing crack cocaine with intent to distribute it. An investigation into alleged drug dealing (including crack) led to a search warrant being executed at Dennison’s house. Dennison was found “in the bathroom with his hands up” while officers heard “a toilet flush and water running.” Officers recovered four bags of marijuana and two bags of powder cocaine (confirmed as such by subsequent testing), but no crack (although the officer found packaging consistent with crack distribution). The district court found the allegations of possession of drugs with intent to distribute proven and sentenced Dennison accordingly, but didn’t address the crack/powder disparity between the petition and proof.

On appeal, the Fourth Circuit concluded that the district court’s decision did not rise to plain error. The court had “little reluctance in concluding that there was error and it was plain” because the “record contains no evidence that the drug involved in the violation was crack cocaine.” However, the court concluded that Dennison “cannot show that the error affected his substantial rights or changed the outcome of the proceedings” and therefore couldn’t clear the prejudice hurdle of plain error review. That was because whether the drug involved was crack or powder the evidence was sufficient to show Dennison possessed it with intent to distribute it and would have resulted in the same outcome in the end.