United States v. Bykovny

          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 On December 28, 2015, Defendant's bond was revoked based on his stipulation that he had violated the conditions of his pretrial release by removing his GPS monitoring unit without permission, absconding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 ...