Sentencing Memorandum as to Calvin Butler — United States v. Butler (Dkt. 44, S.D. W. Va.)

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U.S. District Court for the Southern District of West Virginia · No. 2:22-cr-00161 · Doc. 44 · 2023-05-11 · Docket on CourtListener

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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 
 
 
DEFENDANT’S SENTENCING MEMORANDUM 
 
 
Defendant, Calvin Butler, by his counsel, submits this Memorandum outlining 
the various 18 U.S.C. § 3553(a) factors for this Court’s consideration at his upcoming 
May 18, 2023, sentencing hearing.   
A. Legal Objections: 
On February 21, 2023, Mr. Butler appeared before this Court and tendered his 
guilty plea to the offense of wire fraud in violation of 18 U.S.C. § 1343.  Mr. Butler 
has no objections to the Probation Officer’s calculations for his total offense level (11) 
or his criminal history category (II).  The advisory guideline range for Mr. Butler is 6 
to 12 months, which falls within Zone B of the Sentencing Table.  The restitution 
amount which Mr. Butler owes to the Small Business Administration (“SBA”) is 
$18,540 which includes a $2,500 fee paid to Prestamos CDFI, LLC, the company 
which processed the fraudulent PPP loan application.  Mr. Butler would request this 
Court, pursuant to 18 U.S.C. § 3612(f)(3), to waive the collection of any statutory post-
judgment interest on the restitution obligation in view of the defendant’s other 
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outstanding debts as well as the fact that he is currently earning $10 an hour working 
at his current employer, Gino’s Pizza.   (PSR ¶ 55).   
B. 18 U.S.C. § 3553(a) Factors for Consideration 
The advisory guideline range for Mr. Butler’s case would seek to impose a term 
of imprisonment that would be significantly greater than necessary for purposes of 
punishing Mr. Butler for his criminal conduct.  Mr. Butler ask this Court to consider 
imposing a downward variance and impose a sentence of five years of probation.  A 
probation sentence would provide a longer period where Mr. Butler could work and 
earn money that can be applied towards his restitution obligation. Mr. Butler would 
rely upon the following factors in support of the suggested sentence:  
(1) 
This Court can consider the nature and circumstances of Mr. Butler’s 
offense conduct as not necessarily warranting a custody sentence.  Mr. Butler’s 
conduct began shortly after this nation’s second year of dealing with the COVID-19 
pandemic where millions of Americans were financially impacted by the resulting 
closures of businesses.  In April of 2021, Mr. Butler was getting behind on the monthly 
rent for the home which he shares with his girlfriend and her thirteen-year-old 
brother.  He was 23 years old and was financially supporting his two-year-old son 
with whom he has shared custody with the child’s mother.  Mr. Butler had seen 
numerous posts on his Instagram account and other social media outlets where the 
Federal Government had been handing out millions of dollars to small businesses 
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through forgivable PPP loans.1  One particular post offered to prepare the necessary 
paperwork for a PPP loan application in exchange for $2,000 of the loan that was 
subsequently awarded. Mr. Butler knew that he was not eligible to receive a PPP loan 
because he did not own a business.  Nevertheless, Mr. Butler gave in to the alluring 
temptation of getting “free money” to alleviate some of his financial stress.  He 
proceeded to provide nearly all of his personal and online account information to an 
unknown person whose Instagram username was “4dripzz.”   It was Mr. Butler’s 
understanding that “4dripzz” would complete and submit the PPP loan application 
using the information that he had provided.   Mr. Butler had expressed an interest in 
becoming a barber and was about to start an eighteen month program offered through 
the Charleston School of Beauty Culture.  Nevertheless, the submitted PPP loan 
application falsely stated that Mr. Butler was a self-employed owner of his own 
barbershop which generated a gross income of $77,000 in 2019.   
 
In June of 2021, Mr. Butler received an email indicating that the PPP loan had 
been approved and that the funds in the amount of $16,040 had been deposited in his 
Huntington Banks checking account.  Mr. Butler withdrew $15,000 of this deposit, 
which he used to pay some bills, purchase a used car, and take a brief excursion to 
 
1 See Jim Dee, Are PPP Loan Companies Legit?  PPP Loans Are Being Aggressively 
(and I Suspect Deceptively) Marketed, Medium (Mar. 23, 2021), available at 
https://medium.com/web-design-web-developer-magazine/are-ppploan-companies-
legit-ppp-loans-are-being-aggressively-and-i-suspect-deceptively-marketed-
2fa99e7ec6fb (last visited May 5, 2023).   
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Myrtle Beach with his girlfriend.2  Mr. Butler did not submit any follow up requests 
to the SBA to forgive the received PPP loan.  Mr. Butler is ashamed of his conduct 
and intends to fully pay back the PPP funding which he should have never sought to 
obtain.    
(2) 
Mr. Butler’s personal history and characteristics would support the 
proposed probation sentence.  Mr. Butler was raised in Philadelphia, Pennsylvania, 
and experienced a rough childhood which involved circumstances that were outside 
his ability to alter or otherwise control.  When Mr. Butler was four or five years old, 
he recalls that his mother suffered a crippling stroke which left her unable to care for 
her children.3  When Mr. Butler was eight years old, his father entered a guilty plea 
in this district to the felony offense of possession with the intent to distribute more 
than five grams of crack cocaine and possession of a firearm in connection with a drug 
trafficking offense.4  As a result, Mr. Butler did not have the benefit of having a father 
 
2 It has been estimated that nearly three-quarters of issued PPP funds went to the 
top fifth of household income.  The majority of PPP loans issued in 2020 went to 
business owners and shareholders as opposed to employees.  See David Autor et al., 
The $800 Billion Paycheck Protection Program:  Where Did the Money Go and Why 
Did it Go There?, Journal of Economic Perspectives, Spring 2022, at 56-57, 
https://blueprintcdn.com/wp-content/uploads/2022/01/jep.36.2.55.pdf 
(last 
visited 
May 5, 2023).   
3 Mr. Butler recalls that his mother passed away in 2010.   
4 United States v. Calvin Butler, Crim. No. 2:06-00044.  The sentence imposed on 
February 5, 2007, was a term of imprisonment of 108 months on the crack count to 
be followed by a 60 month consecutive term for the gun count.  Dkt. No. 107.  On 
May 20, 2008, the retroactive application of the reduction in crack cocaine sentencing 
resulted in a reduction of Mr. Butler’s sentence to 87 months on the crack count and 
a consecutive 60 month term on the 924(c) gun count.  Dkt. No. 131.  Pursuant to the 
Fair Sentencing Act of 2010, on December 20, 2011, the Court further reduced the 
imposed sentence for the crack count to 70 months.  Dkt. No. 150.    
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figure in his home environment and lived in a foster care environment from age 6 to 
17.  (PSR ¶ 55).  In 2016, Mr. Butler moved from Philadelphia to South Charleston, 
West Virginia, in order to be with his father after his release from his first federal 
conviction.5   
Mr. Butler did not graduate high school, but he did obtain his GED in March 
of 2021.  Mr. Butler has been someone who has previously maintained employment 
in whatever minimum wage jobs he could find.   (PSR ¶ 54).   In July of 2021, Mr. 
Butler enrolled in the Charleston School of Beauty Culture so that he could become 
a licensed barber.  He took on additional student loan debt to pay for these classes 
and apparently still owes $4,500 on his last bill to the college.  Mr. Butler graduated 
from the program in March of 2023, however, the college is withholding his work 
permit and diploma pending payment of the remaining owed tuition.  Once Mr. Butler 
gets that bill paid, he hopes to maintain full time employment as a barber.   
 
(3) 
This Court should also consider that Mr. Butler’s willingness to enter 
into one of this district’s first plea agreements concerning PPP fraud has placed him 
at a disadvantage relative to more recent prosecutions.  In cases with nearly identical 
facts and loss amounts, the Government has adopted a new policy of permitting 
defendants to plead guilty to the offense of receipt of stolen money (18 U.S.C. § 2315) 
 
5 Mr. Butler began his supervised release term in this district on September 8, 2015.  
Mr. Butler is currently serving a 65 month term of imprisonment as a result of his 
September 4, 2018 guilty plea to possession with intent to distribute a quantity of 
methamphetamine in Case No. 2:18-cr-00176.  According to the BOP website, Mr. 
Butler is due to be released from custody on December 23, 2023.   
 
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instead of a wire fraud count (18 U.S.C. § 1343).  One of these cases is currently before 
this Court and involves Mr. Butler’s brother, Tamir Pratt, where the charged loss 
amount was $20,832.6  As the receipt of stolen property offense carries a ten year, as 
opposed to a twenty year, maximum sentence, the later defendants start at a lower 
base offense level of 6.  Such a reduction in Mr. Butler’s case would have reduced his 
advisory range to fall within Zone B instead of Zone C of the Sentencing Table. 
 
(4) 
The proposed probation sentence would adequately reflect the 
seriousness of Mr. Butler’s conduct and provide incentives for rehabilitation.  This is 
Mr. Butler’s first felony conviction and will remain on his record for the rest of his 
life.  Mr. Butler can remain employed and begin to start setting aside payments 
towards his restitution obligation.  The suggested five year term of probation would 
provide more time for Mr. Butler to be required to make these monthly payments 
thereby increasing the chances that the obligation will be ultimately will be paid back 
in full.    Mr. Butler will also continue participating in out-patient drug treatment as 
he understands that any violations of the term of probation could result in this Court 
re-sentencing him to a term of imprisonment that is within or above his advisory 
guideline range.   
 
6 See United States v. Tamir Pratt, Case No. 2:23-cr-00038.   
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Respectfully submitted this 11th day of May, 2023. 
 
 
 
 
 
 
 
CALVIN BUTLER 
 
 
 
 
 
 
 
By Counsel 
WESLEY P. PAGE 
FEDERAL PUBLIC DEFENDER 
 
s/David R. Bungard 
 
 
 
David R. Bungard, Bar Number: 5739 
Assistant Federal Public Defender 
Office of the Federal Public Defender 
300 Virginia Street, East, Room 3400 
Charleston, West Virginia  25301 
Telephone: (304) 347-3350 
Facsimile: (304) 347-3356 
E-mail: david_bungard@fd.org 
 
 
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