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United States v. Kadik

United States District Court, E.D. Kentucky, Southern Division, London

December 11, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT M. KADIK., Defendant.

          ORDER

          GREGORY F'VAN TATENHOVE UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendant Scott M. Kadik's violation of supervised release. Mr. Kadik has been charged with four violations. Magistrate Judge Hanly Ingram issued a Recommended Disposition pursuant to Defendant's violation. [R. 77.] Judge Ingram recommended incarceration for a period of twenty-one months with no supervised release to follow. [Id. at 11.]

         I

         A

         Judge Ingram's Recommended Disposition accurately sets forth a more detailed account of the factual and procedural background of the case. Except for what the Court summarizes in its discussion below, the Court incorporates his discussion of the record and the standard of review into this Order.

         This Court entered a judgment against Mr. Kadik on October 9, 2014, for possession of multiple unauthorized or counterfeit devices. [R. 42.] He was sentenced for thirty-six (36) months imprisonment followed by a three-year term of supervised release. [Id. at 2-3.] Defendant Kadik began his initial term of supervised release in Little Rock, Arkansas on August 1, 2016. [R. 59-2.] He first violated the conditions of his supervised release on December 30, 2016 and was transferred to the Eastern District of Kentucky to continue his supervision. [Id.] Since Mr. Kadik was transferred, no action was taken except a referral to a substance abuse treatment program and the intensity of his supervision. [R. 45.] He violated the conditions of his supervised release a second time on May 15, 2018 and was sentenced to ten (10) months of incarceration, followed by a two-year term of supervised release. [R. 56.] Defendant began his second term of supervised release on February 16, 2018. [R. 77 at 2.]

         Defendant Kadik recently violated his supervised release on April 27, 2018 by submitting a urine sample tested positive for methamphetamine. [R. 59-2 at 1.] Defendant violated the Mandatory Condition #3 that requires him to refrain from any unlawful use of a controlled substance. [Id. at 2.] This is a Grade C violation. [Id.] This conduct is also a violation of Mandatory Conditions #1 and #2, which prohibit the Defendant from committing another federal state, or local crime and unlawfully possessing a controlled substance. [Id.] This is a Grade B Violation. [Id.] On August 10, 2018, the USPO issued an addendum that charged Defendant with Violation #3, which includes a second violation of the mandatory condition that requires the Defendant to not commit another federal, state, or local crime. [R. 77 at 2.] On October 17, 2018, Mr. Kadik was convicted in Jefferson District Court of attempted theft of identity of another without consent, in violation of K.R.S. § 514.160. [Id. at 2-3.] This is a Grade C violation. [Id. at 3.] On August 14, 2019, the USPO filed another addendum that included an additional violation that alleges Defendant violated the condition that prohibits him from knowingly leaving the Eastern District without permission from the Court or the USPO. [Id.] This is also a Grade C violation. [Id.]

         Defendant's criminal history category is VI and his admitted conduct is a Grade B[1]Violation. [Id. at 7.] According to the U.S. Sentencing Guidelines Manual § 7B1.4(a), Defendant's guideline range is twenty-one to twenty-seven months. Under 18 U.S.S.G. § 3583(e)(3), the maximum revocation sentence becomes twenty-one to twenty-four months.

         Defendant entered a stipulation to the charged violations at a final hearing on September 5, 2019, conducted by Judge Ingram. [Id. at 3.] The parties presented a joint recommendation of twenty-one months of imprisonment with no supervised release to follow. [Id. at 4.] However, the parties disagreed regarding whether Defendant's term of imprisonment upon revocation be credited by his time served in state custody for similar conduct. [Id. at 5.] The government argued that Mr. Kadik should receive no credit for his time served in state custody since “the government's policy is to credit time served when a defendant is in federal custody, not state custody.” [Id.] Defense counsel argued that Mr. Kadik should receive credit as time served since he spent time in state custody since August 2018 due to a federal holder. [Id.] The federal holder prevented Mr. Kadik from paying his bond and being released from state court. [Id.] Also, defense counsel argued that the parole violation Defendant was serving time for in state custody was for the same conduct underlying Violation #3. [Id.]

         After hearing from the defendant and analyzing the record, Judge Ingram recommended revocation of Defendant's supervised release and twenty-one months imprisonment without credit for any state time and no supervised release to follow. [Id. at 11.] This is contrary to what Defendant argued for during his hearing. Judge Ingram supported the denial of credit for state time recommendation by explaining what led to his recommendation and this Court agrees with his reasoning.

         B

         Under Federal Rule of Civil Procedure 72(b)(2), a petitioner has fourteen days after service to register any objections to the R&R or else waive his rights to appeal. In order to receive de novo review by this Court, any objection to the recommended disposition must be specific. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986). A specific objection “explain[s] and cite[s] specific portions of the report which [counsel] deem[s] problematic.” Robert v. Tesson, 507 F.3d. 981, 994 (6th Cir. 2007) (quoting Smith v. Chater, 121 F.3d 709, 1997 WL 415309, at *2 (6th Cir. 1997) (unpublished opinion)). A general objection that fails to identify specific factual or legal issues from the Recommendation, however, is not permitted, since it duplicates the magistrate's efforts and wastes judicial economy. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 509 (6th Cir. 1991).

         Mr. Kadik made a timely objection to the Recommendation. [R. 78.] He objected to the Magistrate Judge's recommendation that he should no receive credit for time served in state custody on state parole violations. [R. 79.] An allocution hearing was not held since Mr. Kadik filed a waiver of allocution. [R. 86.] Mr. Kadik's objection is sufficiently definite to trigger this Court's obligation to conduct a de novo review. See 28 U.S.C. ยง 636(b)(1)(c). The Court has satisfied that duty, reviewing the entire record, including the motions, briefing, the parties' ...


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