In United States v. Dennis, Case No. 21-10316 (Feb. 16, 2022) (William Pryor, Jordan, Anderson), the Court affirmed Ms. Dennis’s revocation sentence.
The issue addressed on appeal concerned the notice that a probationer must receive before her probation can be revoked. Ms. Dennis was serving a sentence of 24 months probation when probation filed a petition to revoke her probation for violating her conditions of supervision. The petition alleged that she had committed a felony (willful obstruction of law enforcement by threats or violence), and two misdemeanor offenses (simple battery on a police officer and theft of services). At her revocation hearing, Ms. Dennis argued that she did not commit felony obstruction, which requires something more than misdemeanor obstruction, for which she was not charged. She argued that she was entitled to written notice of the allegations against her, and that because there was no allegation of misdemeanor obstruction, she could not be found to have committed that offense. The district court rejected Ms. Dennis’s argument, found that she had committed the act of misdemeanor obstruction, and sentenced her to 2 years of supervised release.
On appeal, this Court affirmed. At issue was whether the petition to revoke Ms. Dennis’s probation constituted written notice of the claimed violations of her probation. Ms. Dennis argued that she had been deprived of notice and an opportunity to contest the finding that she had committed misdemeanor obstruction, in violation of the Due Process Clause and Fed. R. Crim. P. 32.1. The Court disagreed, finding that in being warned that she was charged with committing the felony-level offense, she received adequate notice to defend against the misdemeanor-level offense. This is so because the processes and rights to which one is entitled in revocation proceedings are less rigid and plentiful than the processes and rights to which one is entitled in criminal prosecutions, and because the process due to defendants even in criminal prosecutions does not require the specific identification of less included offenses in charging instruments if the greater offense is adequately identified and explained.
As such, the Court held that a district court may find that a defendant committed a lesser included offense of a greater offense that was expressly mentioned in the petition for revocation, and that misdemeanor obstruction is a lesser included offense of felony obstruction.