United States District Court, E.D. Kentucky, Northern Division, Covington
REPORT AND RECOMMENDATION
Candace J. Smith United States Magistrate Judge.
On
April 25, 2018, this matter came before the Court for a Final
Revocation Hearing on the United States Probation
Office's Reports that Defendant Roben Casey Bykovny had
violated conditions of his supervised release. Defendant was
present in Court and represented by David Fessler, and the
Government was represented by Assistant United States
Attorney Wade Napier. U.S. Probation Officer Robert Cooper
was also present for this proceeding.
Upon
call of this matter at the Final Revocation Hearing, the
parties informed the Court that they had reached an agreement
on the pending violations. Specifically, Defendant agreed to
admit to the violations set forth in the January 22, 2018
Violation Report and April 17, 2018 Addendum and, in
exchange, the Government agreed to a recommended sentence of
14 months of imprisonment with no supervised release to
follow. For the reasons that follow, the parties'
agreement is an appropriate disposition of this matter and,
therefore, it will be recommended that
Defendant's supervised release be
revoked and that he be sentenced to a
14-month term of imprisonment, with no supervised release to
follow.
I.
Procedural 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 made
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Defendant's bond was revoked based on his stipulation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 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. § 1033b(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 seven 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 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
returned 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, Officer
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 the Probation Officer'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 medicine-assisted substance abuse treatment
at the Lindner Center of Hope intensive outpatient program.
(Id.). In April 2017 Defendant was brought before
this Court on allegations that he had violated the terms of
his supervised release by testing positive for marijuana,
methamphetamine, and amphetamine as well as being in
possession of those substances. Defendant subsequently
admitted at the final revocation hearing to using
methamphetamine the day prior to his March 1, 2017 drug
testing at the U.S. Probation Office in Cincinnati. The
undersigned issued a Report and Recommendation (R. 343) and
the presiding District Judge on April 17, 2017, found
Defendant to be in violation of the terms of his supervised
release, which was ordered revoked. (R. 344). Defendant was
sentenced to an 8-month term of imprisonment, with a 28-month
term of supervised release to follow. (R. 344; R. 345).
Defendant was to serve the first three months of supervised
release at a halfway house as directed by the U.S. Probation
Office. (Id.).
Defendant
was released from custody on December 1, 2017 to commence his
28-month term of supervised release. He was released from
Bureau of Prisons custody to the Talbert Halfway House
program. On January 22, 2018 Probation Officer Cooper
submitted a Petition for Warrant for Offender Under
Supervision, notifying that Defendant had not complied with
certain conditions of his supervised release. (R. 351).
Officer Cooper recommended that a warrant issue for
Defendant's arrest. A warrant was issued, and Defendant
was brought before the undersigned to answer for the alleged
violations. (R. 353; R. 354).
Defendant
now stands before this Court charged with three violations of
his supervised release conditions. These violation charges
were presented to the Court via the Probation Officer's
January 22, 2018 Violation Report (R. 355) and April 17, 2018
Addendum (R. 358). As discussed above, during the Final
Revocation Hearing counsel informed the Court that the
parties had reached an agreement: Defendant was prepared to
admit to the violations as set forth in the Violation Report
and Addendum, and the parties agreed on a recommended
sentence of 14 months with no supervision to follow.
At his
initial appearance, the undersigned explained to Defendant
the statutory maximum terms of incarceration and new term of
supervised release as well as the applicable Sentencing
Guidelines range. The undersigned further explained during
the Final Hearing that while a recommendation of an
appropriate sentence will be made to the presiding District
Judge, it is ultimately the decision of Judge Bunning as to
the final sentence to be imposed. Defendant acknowledged his
understanding and stated it was his desire to plead guilty to
the violations set forth in the Reports of the U.S. Probation
Office. Specifically, Defendant admitted to the following
violations of his supervised release and the factual
circumstances set forth below:
Violation No. 1: You 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)
Upon
his release by the BOP, Defendant was instructed to report to
the Warren County Pretrial Office weekly to address three
charges for which he had been indicted on March 20, 2017 in
the Warren County Common Pleas Court. Defendant had been
charged with Possession of Drugs (F5), Drug Abuse Instrument
(M1), and Possession of Drug Paraphernalia (M4). Officer
Cooper spoke with the Defendant's Warren County pretrial
officer and was informed Defendant was reporting to her
office weekly until his trial date was set. On January 9,
2018 Defendant reported to the Warren County pretrial office
and provided a urine screen that tested positive for
methamphetamine. Defendant was arrested by the Warren County
pretrial office and terminated from the Talbert Halfway House
program on January 9.[1] On January 10, 2018 the Warren County
pretrial officer contacted Officer Cooper and informed of the
positive drug screen and Defendant's arrest. The pretrial
officer informed Office Cooper that Defendant was contesting
the positive drug screen and would be held in custody until
the results could be verified by the laboratory. On January
18, 2018 the laboratory results were positive for
methamphetamine. Defendant was scheduled for a January 25,
2018 trial in Warren County, and remained in the Warren
County Jail. On March 28, 2018 Defendant was sentenced to
three years of community control and required to serve 90
days after being convicted of the underlying charges in the
Warren County Common Pleas Court. Defendant was released to
the federal supervision warrant following his service of that
sentence and then appeared before this Court.
At
Final Revocation Hearing, Defendant admitted to having tested
positive for methamphetamine upon drug screen performed
January 9, 2018 and admitted that his use of methamphetamine
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