Plea Agreement as to Calvin Butler. (cc: U.S. Probation Office) — United States v. Butler (Dkt. 36, S.D. W. Va.)

Record facts

U.S. District Court for the Southern District of West Virginia · No. 2:22-cr-00161 · Doc. 36 · 2023-02-21 · Docket on CourtListener

Full text

January 
24 , 2023 
David R. Bungard 
United States Department of Justice 
United States Attorney 
Southern District of West Virginia 
Robert C. Byrd United States Courthouse 
300 Virginia Street, East 
Suite 4000 
Charleston, WV 25301 
Assistant Federal Public Defender 
3400 Robert C. Byrd U. S . Courthouse 
300 Virginia Street , East 
Charleston , West Virginia 25301 
Re : 
United States v. Calvin Butler 
Criminal No . 2:22 - cr-00161 (USDC SDWV) 
Dear Mr . Bungard : 
l -800-659-8726 
304-345-2200 
FAX: 304-347-5104 
This will confirm our conversations with regard to your 
client , Calvin Butler (hereinafter "Mr . Butleru ) 
As a result of 
these conversat i ons , it is agreed by and between the United States 
and Mr . Butler as follows: 
1. 
PENDING CHARGES. 
Mr . Butler is charged in a two-count 
indictme nt as follows : 
(a) 
Count One charges Mr . Butler with a violation of 18 
u.s .c. § 1343 (wire fraud) ; and 
(b) 
Count Two charges Mr. Butler with a violation of 18 
u.s.c . § 1343 (wire fraud) ) . 
2 . 
RESOLUTION OF CHARGES. Mr . Butler will plead guilty to 
Count Two of said indictment , which charges him with a violation 
of 18 U. S . C. 
§ 1343 (wire fraud) . 
Following final disposition , 
the United States will move the Court to dismiss Count One in 
Criminal No. 2 : 22 - cr-00161 . 
Defendant ' s 
Initials 
Case 2:22-cr-00161     Document 36     Filed 02/21/23     Page 1 of 13 PageID #: 164

David Bungard 
January 
24, 2023 
Page 2 
Re: Calvin Butler 
3. 
MAXIMUM POTENTIAL PENALTY. 
The maximum penalty to which 
Mr. Butler will be exposed by virtue of this guilty plea is as 
follows: 
(a) 
Imprisonment for a period of 20 years; 
(b) 
A fine of $250 , 000 , or twice the gross pecuniary gain or 
twice 
the 
gross 
pecuniary 
loss 
resulting 
from 
defendant's conduct, whichever is greater ; 
(c) 
A term of supervised release of 3 years; 
(d) 
A mandatory special assessment of $100 pursuant to 18 
U.S.C. § 3013; and 
(e) 
An order of restitution pursuant to 18 U. S.C. §§ 3663 
and 
3664, 
or as otherwise set forth in this plea 
agreement . 
4 . 
SPECIAL ASSESSMENT. 
Prior to the entry of a plea 
pursuant to this plea agreement , Mr. Butler will tender a check or 
money order to the Clerk of the United States District Court for 
$100, which check or money order shall indicate on its face the 
name of defendant and the case number. 
The sum received by the 
Clerk will be applied toward the special assessment imposed by the 
Court at sentencing . 
Mr. Butler will obtain a receipt of payment 
from the Clerk and will tender a copy of such receipt to the United 
States , to be filed with the Court as an attachment to this plea 
agreement. 
If Mr. Butler fails to provide proof of payment of the 
special assessment prior to or at the plea proceeding, the United 
States will have the right to void this plea agreement. 
In the 
event this plea agreement becomes void after payment of the special 
assessment, such sum shall be promptly returned to Mr. Butler. 
Defendant's 
Initials 
Case 2:22-cr-00161     Document 36     Filed 02/21/23     Page 2 of 13 PageID #: 165

David Bungard 
January 
24 , 2023 
Page 3 
Re : Calvin Butler 
5. 
RESTITUTION. Notwithstanding the offense of conviction , 
Mr. Butler agrees that he owes restitution in the amount of $18 , 540 
and agrees to pay such restitution , with interest as allowed by 
law , 
to the 
ful l est extent financial l y 
feasible. 
In aid of 
restitution , Mr. Butler further agrees as follows : 
(a) 
Mr . Butler agrees to fu l ly assist the United States in 
identifying and locating any assets to be applied toward 
restitution and to give signed , 
sworn statements and 
testimony concerning assets upon request of the United 
States . 
(b) 
Mr . Butler will fully complete and execute , under oath , 
a 
Financial 
Statement 
and 
a 
Release 
of 
Financial 
Information on forms supplied by the United States and 
will return these completed forms to counsel for the 
United States within seven calendar days from the date 
of the signing of this plea agreement. 
(cl 
Mr. 
Butler agrees 
otherwise encumber 
he currently owns 
including : 
not 
to dispose 
of , 
transfer or 
any real or personal property which 
or in which he holds an interest , 
(d) 
Mr . Butler agrees to fully cooperate with the United 
States in the liquidation of assets to be applied towards 
restitution , to execute any and all documents necessary 
to transfer title of any assets available to satisfy 
restitution , to release any and all right , title and 
interest he may have in and to such property, and waives 
his 
right 
to 
exemptions 
under 
the 
Federal 
Debt 
Collection Procedures Act upon levy against and the sale 
of any such property . 
( e) 
Mr. Butler agrees not to appeal any order of the District 
Court 
imposing 
res ti tut ion 
unless 
the 
amount 
of 
restitution imposed exceeds the amount set forth in this 
plea agreement . 
However , nothing in this provision is 
Defendant ' s 
Initials 
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David Bungard 
January 
24, 2023 
Page 4 
Re: Calvin Butler 
intended to preclude the Court from ordering Mr . Butler 
to pay 
a 
greater or lesser 
sum of restitution 
i n 
accordance with law. 
6 . 
FORFEITURE. 
Mr. Butler hereby agrees as follows : 
(a) 
To forfeit to the United States any and all property in 
Mr. 
Butler' s 
possession or under his control which 
constitutes proceeds of or is derived from the proceeds 
of the offense to which Mr . Butler is agreeing to plead 
guilty , and is set forth in this informat i on, namely a 
viol ation of 18 U. S . C. § 1343 . Mr. Butler f u rther agrees 
not to contest a forfeiture money judgment in the amount 
of $16,040, which amount constitutes the proceeds of the 
violation set forth in the attached information ; 
(b) 
To assist the United States and its agents in identifying 
all such property , regardless of its location and the 
manner in which it is titled . 
Any 
such identified 
property deemed forfeitable by the United States will 
then be forfeited , pursuant to 18 U.S.C. §§ 981, 982 or 
28 U.S.C. § 2461 , in either an administrative or judicial 
forfeiture action ; 
(c) 
To fully complete and execute , under oath, a Financial 
Affidavit in a form supplied by the United States and to 
return to counsel for the United States the completed 
Affidavit within seven calendar days from the date of 
signing this plea agreement ; 
(d) 
To provide sworn testimony and to execute any documents 
deemed necessary by the United States to effectuate the 
forfeiture and to transfer title to the said property to 
the United States; and 
Defendant's 
Initials 
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David Bungard 
January 
24, 2023 
Page 5 
Re: Calvin Butler 
(e) 
To waive any defenses to this criminal action, or to any 
related administrative or judicial forfeiture action, 
based in whole or in part on the Excessive Fines Clause 
of the Eighth Amendment to the Constitution, 
or the 
holding or principles set forth in United States v. 
Alexander, 
509 
U.S. 
544 
(1993); 
United 
States 
v. 
Bajakajian, 
524 
U.S. 
321 
(1998); 
United States 
v. 
Austin, 509 U.S. 602 (1993); an0 their progeny. 
7. 
PAYMENT OF MONETARY PENALTIES. Mr. Butler authorizes the 
Financial Litigation Program in the United States Attorney's 
Office to obtain a credit report from any major credit reporting 
agency prior to sentencing in order to assess his financial 
condition for sentencing purposes. 
Mr. 
Butler agrees not to 
object to the District Court ordering all monetary penal ties 
(including the special assessment, fine, 
court costs, 
and any 
restitution that does not exceed the amount set forth in this plea 
agreement) to be due and payable in full immediately and subject 
to immediate enforcement by the United States. 
So long as the 
monetary penal ties are ordered to be due and payable in full 
immediately, 
Mr. 
Butler further agrees not to object to the 
District Court imposing any schedule of payments as merely a 
minimum schedule of payments and not the only method, 
nor a 
limitation on the methods, 
available to the United States to 
enforce the judgment. 
Mr. 
Butler 
authorizes 
the 
United 
States, 
through 
the 
Financial Litigation 
Program, 
to 
submit 
any 
unpaid criminal 
monetary penalty to the United States Treasury for off set in 
accordance with the Treasury Offset Program, regardless of the 
defendant's payment status or history at that time. 
In addition to any payment ordered by the Court, Mr. Butler 
shall pay all monies received from any source other than earned 
income, including but not limited to, lottery winnings, gambling 
proceeds, 
judgments, inheritances, and tax refunds, toward the 
court ordered restitution or fine. 
Defendant's 
Initials 
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David Bungard 
January 
24 , 2023 
Page 6 
Re: Calvin Butler 
Mr. Butler agrees that if he retains counsel or has appointed 
counsel in response to the United States ' efforts to collect any 
monetary penalty , he shall immediately notify the United States 
Attorney' s Office , At tent ion : Financial Litigation Program, 
300 
Vi rginia Street E., Suite 4000 , Charleston, West Virginia 25301 , 
in writing 
and 
shall 
instruct 
his 
attorney 
to notify 
FLP 
immediately of his representati on . 
8 . 
COOPERATION. 
Mr . Butler will be forthright and truthful 
with this office and other law enforcement agencies with regard to 
all inquiries made pursuant to this agreement , 
and will give 
signed, sworn statements and grand jury and trial testimony upon 
request of the United States . 
In complying with this provision , 
Mr. Butler may have counsel present except when appearing before 
a grand jury . 
9. 
USE IMMUNITY. 
Unless this agreement 
becomes void due 
t o a violation of any of its terms by Mr. Butler, and except as 
expressly provided for in paragraph 11 below , nothing contained in 
any statement or tes timony provided by him pursuant to t his 
agreement , 
or any evidence developed therefrom, 
will be used 
against him, 
directly or indirectly , 
in any further criminal 
prosecutions or in determining the applicable guideline range 
under t he Federal Sent encing Guidelines. 
10. 
LIMITATIONS 
ON 
IMMUNITY. 
Nothing contained in this 
agreement restricts the use of information obtained by the United 
States from an independent , legitimate source , separate and apart 
from any information and testimony provided pursuant to this 
agreement , 
in det ermining the applicable guideline range or in 
prosecuting Mr. Butler for any violations of federa l or state laws. 
The United States reserves the right t o prosecute Mr . Butler for 
perjury or false statement if such a 
situation should occur 
pursuant to this agreement. 
Defendant's 
Initials 
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David Bungard 
January 
24, 2023 
Page 7 
Re: Calvin Butler 
11. 
STIPULATION OF FACTS AND WAIVER OF FED. R. EVID . 410. 
The United States and Mr. Butler stipulate and agree the facts 
comprising the offense of conviction include the facts outlined in 
the "Stipulation of Facts, n a copy of which is attached hereto as 
" Plea Agreement Exhibit A.n 
Mr. Butler agrees that if he withdraws from this agreement, 
or this agreement is voided as a result of a breach of its terms 
by him, 
and Mr. Butler is subsequently tried for his conduct 
alleged in the Indictment and other relevant conduct, as more 
specifically described in the Stipulation of Facts , the United 
States may use and introduce the Stipulation of Facts in the United 
States case-in-chief , in cross-examination of Mr . Butler or of any 
of his witnesses , or in rebuttal of any testimony introduced by 
him or on his behalf. Mr. Butler knowingly and voluntarily waives, 
see United States v. Mezzanatto, 513 U.S. 196 (1995), any right he 
has pursuant to Fed . R. Evid . 410 that would prohibit such use of 
the Stipulation of Fact s . 
If the Court does not accept the plea 
agreement through no fault of the defendant, or the Court declares 
t he agreement void due to a breach of its terms by the United 
States , the Stipulation of Facts cannot be used by the United 
States. 
The United States and Mr . Butler understand and acknowledge 
t hat the Court is not bound by the Stipulation of Facts and that 
if some or all of t he Stipulation of Fact s is not accepted by the 
Court , the parties will not have the right to withdraw from the 
plea agreement. 
12 . 
AGREEMENT 
ON 
SENTENCING 
GUI DELINES. 
Based 
on 
the 
foregoing Stipulation of Facts, the United States and Mr. Butler 
agree that the following provisions of the United States Sentencing 
Guidelines apply to this case. 
Description 
Base Offense Level 
Los s Greater Than $1'5 , 000 
Adjusted Offense Level 
Guideline Section 
§2Bl.l(a) (1) 
§2Bl.l(b) (1) (C) 
Offense Level 
7 
+ 4 
11 
Defendant's 
Initials 
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Davi d Bungard 
January 
24 , 2023 
Page 8 
Re : Calvin Butler 
The United States and Mr. Butl er acknowledge and understand that 
the Court and the Probation Office are not bound by the parties ' 
ca l culation of the United States Sentencing Guide l ines set forth 
above and that the parties shall not have the right to withdraw 
from the p l ea agreement due to a disagreement with the Court I s 
calculation of the appropriate guideline range. 
13 . 
WAIVER OF 
APPEAL 
AND 
COLLATERAL 
ATTACK . 
Mr. Butler 
knowingly and voluntaril y waives the right to seek appellate review 
of his convi ction and of any sentence of i mprisonment , fine or 
term of supervised release imposed by the District Court , or the 
manner in which the sentence was 
determined , 
on 
any 
ground 
whatsoever incl uding any ground set forth in 18 U. S . C. § 3742 , so 
long as that sentence of imprisonment , fine or term of supervised 
release 
is 
below 
or 
within 
the 
Sentencing 
Guideline 
range 
corresponding to offense level 11 , regardless of criminal history 
category. Mr . Butler also knowingly and voluntarily waives any 
right to seek appellate review of any claim or argument that (1) 
the statute of conviction in 18 U. S.C . § 1343 is unconstitutional , 
and (2) Mr . Butler ' s conduct set forth i n the Stipulation of Facts 
(Plea Agreement Exhibit A) 
does not fall within the scope of 18 
u.s .c. § 1343. 
The United States also waives its right to seek appellate 
review of any sentence of impri sonment or fine imposed by the 
District Court , or the manner in which the sentence was determined , 
on any ground whatsoever including any ground set forth in 18 U.S . C. 
§ 3742 , so l ong as that sentence of imprisonment or fine is within 
or above the Sentencing Guideline range corresponding to offense 
leve l 9, regardless of criminal history category. 
Mr . Butler also knowingl y and voluntari ly waives the right to 
challenge his guilty plea and his conviction resulting from this 
plea agreement , and any sentence imposed for the conviction , in 
any collateral attack , 
including but not limited to a motion 
brought under 28 U. S . C. § 2255 . 
Defendant ' s 
Initials 
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David Bungard 
January 
24, 2023 
Page 9 
Re: Calvin Butler 
The waivers noted above shall not apply to a post-conviction 
collateral attack or direct appeal based on a claim of ineffective 
assistance of counsel. 
14. 
WAIVER OF FOIA AND PRIVACY RIGHT. 
Mr. Butler knowingly 
and voluntarily waives all rights, whether asserted directly or by 
a representative, to request or receive from any department or 
agency of the 
United States any records pertaining to the 
investigation or prosecution of this case, including without any 
limitation any records that may be sought under the Freedom of 
Information Act (FOIA), 5 U.S.C. § 552, or the Privacy Act of 1974, 
5 U.S.C. § 552a, following final disposition. 
15. 
FINAL DISPOSITION. The matter of sentencing is within 
the sole discretion of the Court. The United States has made no 
representations or promises as to a specific sentence. 
The United 
States reserves the right to: 
(a) 
Inform the Probation Office and the Court of all relevant 
facts and conduct; 
(b) 
Present evidence and argument relevant to the factors 
enumerated in 18 U.S.C. § 3553(a); 
(c) 
Respond to questions raised by the Court; 
(d) 
Correct inaccuracies or inadequacies in the presentence 
report; 
(e) 
Respond to statements made to the Court by or on behalf 
of Mr. Butler; 
(f) 
Advise the Court concerning th~ nature and extent of Mr. 
Butler's cooperation; and 
(g) 
Address the Court regarding the issue of Mr. Butler's 
Defendant's 
Initials 
Case 2:22-cr-00161     Document 36     Filed 02/21/23     Page 9 of 13 PageID #: 172

David Bungard 
January 
24 , 2023 
Page 10 
Re : Calvin Butler 
acceptance of responsibility. 
16 . 
VOIDING OF AGREEMENT. 
If either the United States or 
Mr . But l er violates the terms of this agreement , the other party 
will have the right to void this agreement . If the Court refuses 
to accept this agreement , it shall be void. 
17. 
ENTIRETY 
OF 
AGREEMENT. 
This 
written 
agreement 
constitutes the entire agreement between the United States and Mr . 
Butler in this matter . 
There are no agreements , understandings 
or recommendations as to any other pending or future charges 
against Mr. 
But l er in any Court other than the United States 
District Court for the Southern District of West Virginia . 
Acknowledged and agreed to on behalf of the United States: 
By : 
MRB/tlm 
WILLIAMS . THOMPSON 
Unit~ 
S~
8es Attorney 
fJ'-~7 
M. RYAN BLACKWELL 
Assistant United States Attorney 
I hereby acknowl edge by my initials at the bottom of each of the 
foregoing pages and by my signature on the last page of this 11-
page agreement that I have read and carefully discussed every part 
of it with my attorney , 
that I 
understand the terms of this 
agreement , 
and that 
I 
voluntarily agree to those 
terms 
and 
conditions set forth in the agreement. 
I further acknowledge that 
my attorney has advised me of my rights , possible defenses , the 
Sentencing Guideline provisions , and the consequences of entering 
into this agreement , that no promises or inducements have been 
made to me other than those in this agreement , and that no one has 
threatened me or forced me in any way to enter into this agreement. 
Finally , I am satisfied with the representation of my attorney in 
Defendant ' s 
Initials 
Case 2:22-cr-00161     Document 36     Filed 02/21/23     Page 10 of 13 PageID #: 173

David Bungard 
January 
24 , 202 3 
Page 11 
M. Ry 
Blackwell 
Assist ant United Stat es Attorney 
Re : Calvi n Butler 
Date Si gned 
//3//2-~ 
Date Signed 
Date Signed 
Defendant ' s 
Init i als 
Case 2:22-cr-00161     Document 36     Filed 02/21/23     Page 11 of 13 PageID #: 174

IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA 
CHARLESTON DIVISION 
UNITED STATES OF AMERICA 
v. 
CRIMINAL NO . 2:22-cr-00161 
CALVIN BUTLER 
STIPULATION OF FACTS 
The United States and Calvin Butler (hereinafter , "defendant" 
or "I" or "my") stipulate and agree that the facts comprising the 
offense of conviction in Count Two of the two count Indictment 
f iled in the Southern District of West Virginia (Criminal No. 2 : 22 -
cr- 00161 ) , and the relevant conduct for that offense include the 
following: 
From mid- April 2021 , to June 9, 2021 , I knowingly participated 
in a scheme to defraud and obtain money from a lender and the Small 
Business Administration through the Paycheck Protection Program 
("PPP" ) . 
I maintained an account on Instagram, 
a social media 
platform on the Internet . 
I had previously seen posts from other 
users which talked about getting PPP loans and then getting them 
forgiven . 
Through Instagram, I met another person whose username 
was "4dripzz" who told me that if I provided him with required 
personal information , he could prepare the necessary paperwork for 
the loan application and submit the same on my behalf . 
I was 
told by " 4dripzz " that I would need to pay $2 , 000 to him from the 
proceeds of any PPP l oan that I received . 
I knew that I was not 
eligible to receive a PPP loan because I did not own a business 
and was not previously self-employed . 
I decided to proceed with 
this scheme , knowing that it was wrong , because I needed money to 
pay my bills . 
I proceeded to provide "4dripzz" with all of my personal 
i nformation , such as address , my interest in becoming a barber , my 
social security number , my phone number, my iCloud email address , 
the password to access and use that iCloud emai l account on my 
behalf , my account number of my checking account with Huntington 
National Bank , the password to access that checking account over 
the Internet, a photo of my driver's license, and a recent photo 
of myself . 
It is my understanding t hat "4dripzz " took all of that 
personal information and submitted an application for a PPP loan 
PLEA AGREEMENT EXHIBIT A 
Case 2:22-cr-00161     Document 36     Filed 02/21/23     Page 12 of 13 PageID #: 175

on my behalf . 
I 
am now aware that the application whi ch was 
submitted by " 4dripzz" on April 25 , 2021 , falsely represented that 
in 2020 , 
I operated a barbershop and received $77 , 000 in gross 
income during that year . 
A 
PPP 
lender approved the 
fraudulent 
application which 
" 4dri pzz " had submitted on my behalf . 
On June 7, 2021 , $16 , 040 
was deposited into my checking account with Huntington National 
Bank as the result of an ACH transfer from a financ i al institution 
in Tennessee . 
I knew that this deposit was the result of the PPP 
appl i cation which "4dripzz " submitted on my behalf . 
Starting on 
June 
7, 
2021 , 
I 
withdrew 
$15 , 000 
of this deposit in three 
increments of $5 , 000 and did not spend the money on any legitimate 
business expenditures . 
I made each of the $5 , 000 withdraws at a 
Huntington National Bank branch located in South Charleston , 
Kanawha County , West Virginia . 
I agree that I received $16 , 040 in PPP funds which I was not 
entitled to receive as the result of the scheme to defraud which 
I entered into with " 4dripzz ." 
I also agree that Huntington 
National Bank has a branch located in South Charleston , Kanawha 
County , West Virginia , which is within the Southern District of 
West Virginia . 
This Stipulation of Facts does not contain every fact known 
to Mr . Butler and to the United States concerning his involvement 
in the charge set forth in Count Two of the Indictment as well as 
his relevant conduct . 
Stipulated and agreed to : 
Counsel for Defendant 
M _f"-R~
well 
Assistant U. S . Attorney 
PLEA AGREEMENT EXHIBIT A 
2 
Dafe 
1(3(/ Z}) 
Date 
Date 
Case 2:22-cr-00161     Document 36     Filed 02/21/23     Page 13 of 13 PageID #: 176

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