United States District Court, Eastern District of Kentucky, Northern Division
November 7, 2014
UNITED STATES OF AMERICA, PLAINTIFF,
RONDA NIXON, DEFENDANT
For USA, Plaintiff: Laura Klein Voorhees, U.S. Attorney's Office - Ft. Mitchell, Ft. Mitchell, KY.
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Edward B. Atkins, United States Magistrate Judge.
This matter came before the Court for a final revocation hearing on November 4, 2014, as a result of a Supervised Release Violation Report dated October 9, 2014. The report outlines five (5) violations of Defendant's Supervised Release. At the final hearing, Nixon was present and represented by appointed counsel, Michael Fox, and the United States by and through Assistant United States Attorney Laura Voorhees. During the hearing, Nixon stipulated to the five (5) violations as outlined in the report, waived her right of allocution before a United States District Judge and exercised her right of allocution before the undersigned. The matter now stands submitted for a recommendation from the undersigned. For the reasons that follow, the undersigned will recommend that Nixon be found guilty of the five (5) violations as outlined in the report, and that the Court impose a sentence of ten (10) months incarceration with three (4) years of supervised release, less any period of incarceration, to follow.
FINDINGS OF FACT
At the hearing on November 4, 2014, Nixon admitted that she has failed to pay the special assessment and restitution as ordered by the Court at the time of sentencing. In addition, she did not provide the probation officer with access the her financial information as required by failing to disclose truthful financial information on the Declaration of Defendant or Offender Net Worth and Cash Flow Statement and her monthly report forms. She admitted that she provided false information by failling to fully disclose all expenditures in excess of $500.00, and failed to disclose receiving and spending $24, 456.00. Finally, she opened an additional line of credit at ColorTyme Rent a Center in Ashland, where she entered an agreement to rent to own a kitchen talbe and two electronic tablets, after which time she pawned the tablets for $250.00. The stipulated conduct establishes, by a preponderance of the evidence, that the Defendant has violated the following conditions of supervised release:
(1) Supervised Release Condition: Failure to pay restitution. (Grade C violation);
(2) Supervised Release Condition: Failure to pay restitution. (Grade C violation);
(3) Special Condition: The defendant shall provide the probation officer with access to any requested financial information. (Grade C violation);
(4) Supervised Release Condition: The defendant shall not commit another federal, state, or local crime. (Grade B violation); and
(5) Special Condition: The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless she is in compliance with the installment payment schedule. (Grade C violation).
In making a recommendation regarding the imposition of sentence, the undersigned has considered the following factors set forth in 18 U.S.C. § 3553:
(i) The History and Characteristics of the Defendant, and the nature and circumstances of the offense.
Nixon is a well educated individual with an Associates Degree in Paralegal studies and almost one year of law school. She related to the Court that she has a past diagnosis of depression, and Bi-polar disorder, for which she has taken anti-depressant medication. However, the defendant and counsel represent that she is competent both in her ability to understand the nature and consequences of the proceedings against her and to assist in her defense.
The underlying felony charges in this matter were for Wire Fraud, in violation of 18 U.S.C. § 1343; Bank Fraud in violation of 18 U.S.C. § 1344, and Aggravated Identity Theft in violation of 18 U.S.C. § 1028A(a)(1). As a result of these charges, to which the Defendant plead guilty, the Court sentenced Nixon to 54 months imprisonment and ordered restitution to victims of her offenses in the amount of $55, 236.30, and a special assessment of $1, 6000.00. She began her five year term of supervised release on August 30, 2013. On November 4, 2013, Nixon deposited $24, 456.00, into a PNC checking account that she co-owned with her daughter, a minor. She admits that afterward, she and her daughter went on shopping sprees, purchased a vehicle, purchased various household goods, clothes, and " personal pampering" at Regis hair salon, among other things. During this time, Nixon either failed to report or falsely reported her financial circumstances, and failed to make payments toward special assessment or restitution obligations. In addition, she opened a line of credit with ColorTyme Rent a Center, where she entered a " rent-to-own" agreement for a kitchen table and two electronic tablets. She then pawned the tablets for $250.00. Although at the final hearing Nixon assured the Court that ColorTyme Rent a Center had secured possession of the tablets, it came to light that ColorTyme Rent a Center did in fact acquire the tablets after going to the pawn shop and paying to retrieve them. Thus, not only has Nixon failed to make any effort to address the rights of those victimized by her underlying offenses, she has engaged in deceptive practices resulting in financial harm to additional victims.
(ii) The need for the sentence to reflect the seriousness of the offense; to promote respect for the law; to provide just punishment for the offense; to afford adequate deterrence to future conduct; and to protect the public from further crimes of the Defendant.
The Court notes that in light of the defendant's history and characteristics, the offenses committed so soon after beginning supervised release, recommends a period of 10 months incarceration. In addition, the Court believes that a period of supervised release of four years is necessary to act as a deterrent to future criminal conduct, and to protect the public from further crimes.
(iii) The sentencing guideline recommendation for imprisonment and statutory limitations.
In the instant matter, the most serious of the violations committed by the Defendant is a Grade B violation, and under § 7B1.1, based on the Defendant's criminal history category of I, the guideline range of imprisonment would be four (4) to ten (10) months. The maximum statutory period of imprisonment would be a term of not more than three years. See 18 U.S.C. § 3583(e)(3). The maximum period of supervised release would be 36 months, less any term of imprisonment imposed upon revocation. 18 U.S.C. § 3583(h). The Guidelines are, of course, advisory in nature, to be considered by the District Judge along with all relevant factors in exercising his sentencing discretion.
The undersigned in making a recommendation, has considered the facts set out above in accordance with controlling law, the Defendant's past and persistent criminal conduct, the serious nature of the instant violations, and the parties' arguments regarding the appropriate length of the Defendant's sentence.
For the reasons stated herein, IT IS RECOMMENDED AS FOLLOWS:
(1) That the Defendant be found to have committed the five (5) violations outlined above, based on her stipulation; and
(2) That the Defendant be sentenced without delay to ten (10) months incarceration, with four (4) years of supervised release, less time served, to follow. Based upon counsel's request, and considering the Defendant's history of suffering from depression, the undersigned recommends that while on supervision, if deemed advisable by probation, the defendant take part in mental health counseling.
Specific objections to this Report and Recommendation must be filed within fourteen (14) days from the date of service thereof or further appeal is waived. United States v. Campbell, 261 F.3d 628, 632 (6th Cir. 2001); Bituminous Cas. Corp. v. Combs Contracting Inc., 236 F.Supp.2d 737, 749-750 (E.D. Ky. 2002). General objections or objections that require a judge's interpretation are insufficient to preserve the right to appeal. Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004); Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).