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United States v. Bykovny

United States District Court, E.D. Kentucky, Northern Division, Covington

April 17, 2017

UNITED STATES OF AMERICA PLAINTIFF
v.
ROBEN CASEY BYKOVNY DEFENDANT,

          REPORT AND RECOMMENDATION

          CANDACE J. SMITH UNITED STATES MAGISTRATE JUDGE.

         On April 11, 2017, this matter came before the Court for a Final Revocation Hearing on the United States Probation Office’s Report that Defendant Roben Bykovny had violated certain conditions of his supervised release. (See R. 339). Defendant was present in Court and represented by Attorney David F. Fessler, and the Government was represented by Assistant United States Attorney (AUSA) Elaine K. Leonhard. The proceedings were electronically recorded and are contained in the Court’s audio file at KYED-COV2-15-cr-36-DLB-CJS-20170411-132816; the official record of these proceedings was certified by Linda Tierney, Deputy Clerk.

         Upon call of this matter at the Final Revocation Hearing, defense counsel informed the Court that Defendant was prepared to admit to the violations set forth in the April 4, 2017, Supervised Release Violation Report and proceed with a determination of an appropriate sentence. After taking Defendant’s plea and hearing argument of counsel regarding an appropriate sentence for the admitted violations, the undersigned advised counsel and Defendant that she intended to recommend a term of incarceration of eight (8) months, followed by a new term of supervision in the range of 24 to 30 months. Upon hearing the undersigned’s recommendation, counsel for Defendant conferred with his client and informed that Defendant wished to accept the recommendation and waive his rights to allocute before the District Judge and appeal any sentence insofar as it is consistent with the Report and Recommendation (R&R) of the undersigned. Both parties also waived the 14-day period to file objections to this R&R. Therefore, for the reasons that follow, it will be recommended that Defendant’s supervised release be revoked, and that he be sentenced to a term of imprisonment of 8 months followed by a 28-month term of supervised release, with the special condition that immediately upon his release he be placed in a halfway house program for the first 3 months of supervision.

         I. Background

         On September 10, 2015, a federal grand jury returned an Indictment charging Defendant and eleven others with aiding and abetting co-Defendant Charles Whitney Benson with insurance fraud by cashing checks issued on false claims against automobile insurance policies. (R. 1). While awaiting trial, Defendant was released on an Own Recognizance Bond with conditions. (R. 53; R. 55). On December 28, 2015, Defendant’s bond was revoked based on his stipulation that he had violated the terms and conditions of his pretrial release by removing his GPS monitoring unit without permission, absconding supervision, and failing to contact the Warren County Probation Office or the U.S. Pretrial Office in Cincinnati until he was located and arrested on or about October 21, 2015. (R. 136).

         On February 25, 2016, Defendant pleaded guilty to three counts of aiding and abetting insurance fraud, in violation of 18 U.S.C. §§ 1033(b)(1)(A) and 2. (R. 181). On May 13, 2016, Defendant was sentenced to time served (the 138 days he had been incarcerated following revocation of his bond) with a 3-year term of supervised release to follow. (R. 240). Defendant was released from prison immediately following his sentencing and placed on home detention with electronic monitoring for the first 7 months of his supervised release. (R. 235). Defendant reported to the U.S. Probation Office in Cincinnati, Ohio on May 23, 2016, at which time U.S. Probation Officer (USPO) Robert Cooper reviewed the conditions of supervision with Defendant to ensure he understood them. Defendant agreed that he understood the conditions, signed all of the appropriate documents, and was placed on electronic monitoring. (R. 339).

         On June 24, 2016, Defendant was administered a drug test which tested positive for Suboxone. (Id.). Defendant was not prescribed Suboxone at the time and admitted that he received the Suboxone from a friend to help him with his craving for heroin. (Id.). On July 1, 2016, USPO Cooper submitted a petition to the Court recommending the Court take no action against Defendant and instead allow him an opportunity to attend treatment. The Court entered an Order concurring with USPO Cooper’s recommendation. (R. 281).

         Defendant began to take the necessary steps to obtain treatment but was unable to attend due to issues with transportation and housing. (R. 339, at 2). In October 2016, Defendant did eventually begin a medicine-assisted substance abuse treatment at the Lindner Center of Hope intensive outpatient program.[1] (Id.).

         On March 3, 2017, USPO Cooper submitted a Petition for Warrant for Offender Under Supervision, notifying the presiding District Judge that Defendant had failed to comply with conditions of his supervision and requesting a warrant issue so that Defendant could be brought before the Court to answer the allegations. (R. 332). The presiding District Judge granted the request, and a warrant issued. (R. 332; R. 333). On April 4, 2017, Defendant was arrested in Martinsville, Ohio, and brought before the Court for initial appearance, at which a Final Revocation Hearing was set for April 11, 2017, and Defendant was remanded to custody. (R. 336; R. 338).

         As discussed above, at the Final Revocation Hearing, defense counsel informed the Court that Defendant was prepared to admit to the violations contained in the April 4, 2017, Violation Report. Defendant confirmed this was his intention. Prior to taking his plea, the undersigned explained to Defendant the statutory maximum term of incarceration and supervised release as well as the applicable Guidelines range. The undersigned further explained that while a recommendation of an appropriate sentence will be made to the presiding District Judge, it is ultimately the decision of District Judge Bunning as to the final sentence to be imposed. Defendant acknowledged his understanding and stated that he was prepared to admit to the violations in the Violation Report. Defendant also acknowledged that he understands he will not be permitted to withdraw his admission to the violations if the final sentence should differ from what he seeks.

         Accordingly, after being placed under oath, Defendant admitted and entered a guilty plea to the violations of his supervised release as set out in the April 4, 2017, Supervised Release Violation Report of the U.S. Probation Officer. Specifically, Defendant admitted to the following violations of supervised release and the factual circumstances set forth below:

Violation No. 1:The Defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any narcotic or other controlled substance, or any paraphernalia related to such substances, except as prescribed by a physician. (Grade C violation).

         On March 1, 2017, Defendant reported to the U.S. Probation Office in Cincinnati, Ohio and provided a urine specimen which tested positive for marijuana, methamphetamine, and amphetamine. (R. 339, at 2). Defendant admitted to using “ICE” (methamphetamine) the day before with a friend. (Id.).

Violation No. 2:The defendant shall not commit another federal, state, or local crime (Grade B violation).

         Defendant admitted to using a controlled substance, which is equivalent to possession and therefore considered a violation of ...


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