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United States v. Nickell

United States District Court, Sixth Circuit

September 23, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
RUSSELL DAVID NICKELL, Defendant.

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

EDWARD B. ATKINS, Magistrate Judge.

I. INTRODUCTION

This matter came before the Court for a final revocation hearing on September 18, 2013, as a result of a Supervised Release Violation Report dated May 15, 2013. The report outlined four (4) violations of Defendant's supervised release, which included conditions such as, requiring the Defendant to: 1) refrain from excessive alcohol and drug use; 2) not to commit another federal, state, or local crime; 3) participate in a substance abuse treatment program; and 4) submit to periodic drug and alcohol testing. Violation Worksheet. 1, May, 2013. A subsequent addendum outlined two additional violations, including an additional federal crime violation and the use of drugs. Addendum to Supervised Release Violation Report, 1, Aug., 2013. At the final hearing, Russell David Nickell (herein after, "Nickell") was present and represented by retained counsel, C. David Mussetter, and the United States by and through Assistant United States Attorney, Edwin J. Walbourn. Crim. Mins. 1, Sept. 18, 2013.

Nickell stipulated to the six (6) violations as outlined in the report, waived his right of allocution before a United States District Judge and requested that the United States Magistrate Judge recommend a sentence by written order. [Record No. 100, 101]. The United States and the Defendant advised the Court of a binding agreement for the Court's consideration in this matter which would impose a twelve (12) month sentence of imprisonment for the said violations to be immediately followed by a twenty four (24) month period of supervised release. Nickell will also have to pay for and successfully complete a drug rehabilitation program during supervision as part of this agreement. The matter now stands submitted for a recommendation from the undersigned. For the reasons that follow, the undersigned will recommend that Nickell be found guilty of the six (6) violations as outlined in the report and addendum to the report, and that the Court adopt the agreement made between Nickell and the United States.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On December 29, 2006, Nickell appeared before the Court and was sentenced to time served followed by three (3) years of supervised release following a guilty plea to Conspiracy to commit check fraud by making and passing counterfeit organization checks in violation of 18 U.S.C. § 371. Supervised Release Violation Report. 1, May 15, 2013. Nickell was ordered to pay restitution and was given the standard conditions adopted by the Eastern District of Kentucky, along with additional special conditions, including: 1) no gun or destructive weapon ownership; 2) giving the probation office access to his financial information; 3) inability to open any lines of credit; 4) participation in a mental health treatment; 5) participation in a drug treatment program along with submitting to drug testing; and 6) abstaining from use of alcohol. Id.

On June 29, 2012, Nickell began his term of Supervision through the Probation Office in Ashland, Kentucky. Id . Three (3) days later, Nickell violated the conditions of his supervised release when he admitted to taking "4-MEC, " a form of bath salts. Id . A violation report was submitted and he was then allowed to continue his supervised release as originally ordered. Id.

In August, Nickell submitted to a urinalysis and the results came back positive for designer stimulants. Id. at 2. Initially, Nickell denied the use of the substance, but later admitted to buying "Bliss" packaged as plant food and consuming it approximately three (3) times a week. Id . Nickell explained at the time that he had been experiencing anxiety in crowds and problems sleeping which led him to consuming "Bliss". Id . A report was submitted and Nickell was placed on home detention with location monitoring for a period of three (3) months, followed by supervision. Id.

The violations which form the basis of the current action then arose in April of 2013. At that time, Nickell violated two (2) different conditions of his supervised release when a urinalysis came back positive for Alpha-Pyrrolidinopentiophenone (a-PVP), a Schedule I controlled substance. Id . Upon testing positive for the substance, Nickell denied its use. Id . At the final hearing in this matter, he admitted his use and possession, agreeing that all facts contained in the violation report were correct. Therefore he violated both the condition prohibiting drug and alcohol use and not to commit another crime (in this case, possession of a Schedule I substance in violation of 21 U.S.C. § 844(a), a Class E Felony). Id.

On July 17, 2012 pursuant to a special condition of Nickell's supervised release, Nickell was referred to mental health counseling. Id . His recommended monthly treatment sessions were increased to two (2) sessions after a positive drug test and self-reported anxiety. Id . Nickell admitted before the Court that from October of 2012 through April of 2013, he missed a total of ten (10) of the fourteen (14) sessions he was mandated to attend, in violation of the condition requiring participation in a mental health program. Id . During this time Nickell was also referred to substance abuse counseling, where he failed to attend seven (7) of the ten (10) sessions he was required to attend, in violation of the condition to participate in a substance abuse treatment program. Id.

Nickell's final violations all stemmed from an arrest in Huntington, West Virginia, on August 1, 2013. At that time, Nickell was found in a hotel room by members of the CUFFED task force. Addendum to Supervised Release Violation Report, 1-2, Aug., 2013. The hotel room contained approximately two hundred (200) grams of synthetic cocaine, a set of digital scales, along with baggies, aluminum foil, wine coolers, and a bottle of vodka. Id . Nickell was arrested and charged with Possession of Controlled Substances with Intent to Deliver. Id. at 1. At the final hearing, Nickell admitted to conduct as alleged in the violation report addendum placing him in violation of the conditions of his supervised release which prohibited the possession of a controlled substance and possession of drug paraphernalia. Id. at 2.

III. ANALYSIS

Rule 32.1 of the Federal Rules of Criminal Procedure provides that a Court's disposition of a supervised release violation is governed by 18 U.S.C. § 3583. Fed. R. Crim. P. 32.1(d). Pursuant to 18 U.S.C. § 3583, the following standard is applicable to proceedings to revoke a defendant's supervised release:

The Court may... revoke a term of supervised release, and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release... if the Court... finds by a preponderance of the ...

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