Court filing
Sentencing Memorandum by United States of America as to Calvin Butler — United States v. Butler (Dkt. 45, S.D. W. Va.)
Filed May 11, 2023 in United States v. Butler; one of 37 filings from this case.
Record facts
| Court | U.S. District Court for the Southern District of West Virginia |
|---|---|
| Filed | 2023-05-11 |
U.S. District Court for the Southern District of West Virginia · No. 2:22-cr-00161 · Doc. 45 · 2023-05-11 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON
UNITED STATES OF AMERICA
v.
CRIMINAL NO. 2:22-cr-00161
CALVIN BUTLER
UNITED STATES SENTENCING MEMORANDUM
The United States of America, by M. Ryan Blackwell, Assistant United States Attorney for
the Southern District of West Virginia, submits this memorandum in aid of sentencing.
I.
Introduction
Defendant, Calvin Butler, pled guilty to wire fraud, in violation of 18 U.S.C. § 1343. PSR
¶ 2. The United States has no outstanding objections to the Presentence Report (“PSR”). The
Probation Officer correctly calculated the total offense to be 9. PSR ¶ 34. Defendant is in criminal
history category II, and his advisory guideline range is 6-12 months’ incarceration. PSR ¶ 57.
II.
Sentencing Options
Defendant’s adjusted offense level falls within Zone B of the Sentencing Table. Zone B
sentences may be satisfied by (1) a sentence of imprisonment; (2) a sentence of imprisonment that
includes a term of supervised release with a condition that substitutes community confinement or
home detention according to the schedule in U.S.S.G. § 5C1.1(e), provided that at least one month
is satisfied by imprisonment; or (3) a sentence of probation that includes a condition or
combination of conditions that substitute intermittent confinement, community confinement or
home detention for imprisonment according to the schedule in subsection (e). PSR ¶ 57.
Case 2:22-cr-00161 Document 45 Filed 05/11/23 Page 1 of 6 PageID #: 199
2
Defendant is convicted of a Class C felony, which authorizes this Court to impose a term of
probation of not less than one nor more than five years. PSR ¶ 93.
III.
18 U.S.C. § 3553(a) Factors
(A) Nature and Circumstances of the Offense
In late 2019, the Coronavirus Disease 2019 (“COVID-19”) began spreading throughout the
world. The novel disease brought with it sickness, death, and uncertainty on an unfathomable
scale. Upon learning of COVID-19 and its potential impacts, the United States government
implemented extraordinary measures aimed to protect its citizens. These measures attempted to
protect the health, safety, and welfare of all people, while slowing the spread of the virus
worldwide. Among the many measures implemented by the United States designed to lessen the
impacts of COVID-19 was the Coronavirus Aid, Relief, and Economic Security (“CARES”) Act.
PSR ¶ 13. The CARES Act, in part, created the Paycheck Protection Program (“PPP”). Id. The
PPP provided forgivable government-backed loans to all qualifying small businesses impacted by
COVID-19 who used the loaned money on qualifying businesses expenses. PSR ¶ 14. The PPP’s
purpose was to provide an infusion of cash to businesses victimized by COVID-19, and to keep
the U.S. economy afloat in the process. PSR ¶¶ 13-14.
During a time of unprecedented uncertainty, Defendant saw an opportunity to fraudulently
enrich himself. Defendant caused a PPP loan application to be submitted, claiming that he
operated a barbershop in his own name when he knew this to be false. PSR ¶ 19. Defendant’s
scheme included causing false IRS documents to be submitted in connection with the application.
PSR ¶ 17. Defendant received $16,040 in PPP funds based on his scheme, which he used on
himself. PSR ¶ 18.
Case 2:22-cr-00161 Document 45 Filed 05/11/23 Page 2 of 6 PageID #: 200
3
The circumstances surrounding Defendant’s criminal conduct are particularly troubling as
he used a generational tragedy to enrich himself through fraud. The Court should give great weight
to this factor in imposing a sentence within Defendant’s advisory guideline range. See Gall v.
United States, 552 U.S. 38, 59 (2007) (holding that it was “quite reasonabl[e]” for the sentencing
court to have “attached great weight” to a 3553(a) factor.); see also Kimbrough v. United States,
552 U.S. 85, 111 (2007) (holding that an appellate court should not find the sentencing court's
reliance on a single factor unreasonable, so long as the court imposes a sentence “sufficient, but
not greater than necessary to accomplish the sentencing goals advanced in § 3553(a)(2)”) (internal
quotation marks omitted); see also United States v. Pauley, 511 F.3d 468, 476 (4th Cir. 2007)
(permitting a district court to “reasonably accord significant weight to a single sentencing factor
in fashioning its sentence”).
(B) History and Characteristics of the Defendant
Defendant is twenty-five years old, and lives in Dunbar, West Virginia. PSR ¶¶ 43, 46 He
received his General Education Diploma (“GED”) in 2021 from Garnett Career Center. PSR ¶ 52.
Defendant graduated from the Charleston School of Beauty in March of 2023. Id.
Defendant is in criminal history category II and has a history that includes a drug related
conviction and a theft related conviction. PSR ¶¶ 37-38. Defendant admits to having a history of
substance abuse including cocaine and marijuana use. PSR ¶¶ 50-51. Defendant continued to use
controlled substances after being indicted for the instant offense. PSR ¶¶ 8-11. Currently,
Defendant is receiving outpatient substance abuse treatment from Pyramid Counseling. PSR ¶ 51.
Defendant timely accepted responsibility for his actions and agreed to restitution for the
offense of conviction. PSR ¶¶ 24, 103.
Case 2:22-cr-00161 Document 45 Filed 05/11/23 Page 3 of 6 PageID #: 201
4
(C) The Need for the Sentence to Reflect the Seriousness of the Offense, Promote Respect
for the Law, Provide Just Punishment, Provide Adequate Deterrence, and Protect the
Public
Defendant exploited governmental efforts to aid those in need, for his own financial gain.
While uncertainty and suffering increased worldwide, Defendant’s bank account increased through
fraud. Defendant’s actions are serious, and their impact extends beyond this case. Each time
federal benefits are obtained through fraud it misappropriates taxpayer dollars and shakes public
confidence in government. Defendant’s conduct demonstrates a disregard for the law and a
fundamental failure to appreciate the purpose of COVID-19 relief funds.
A sentence within Defendant’s advisory guideline range is needed to deter Defendant, and
others, from engaging in similar conduct. Congress has recognized that general deterrence is
particularly important in the context of white-collar crime. United States v. Sample, 901 F.3d
1196, 1200 (10th Cir. 2018) (citing United States v. Martin, 455 F.3d 1227, 1240 (11th 2006)
(“[T]he Congress that adopted the § 3553 sentencing factors emphasized the critical deterrent value
of imprisoning serious white collar criminals, even where those criminals might themselves be
unlikely to commit another offense.”); S. Rep. No. 98-225, at 76 (1983), reprinted in 1984
U.S.C.C.A.N. 3182, 3259 (“The second purpose of sentencing is to deter others from committing
the offense. This is particularly important in the area of white collar crime.”)). “[I]n enacting
§ 3553, Congress was especially concerned that prior to the Sentencing Guidelines, major white-
collar criminals often were sentenced to small fines and little or no imprisonment.” United States
v. Livesay, 587 F.3d 1274, 1279 (11th Cir. 2009) (cleaned up).
Government program fraud is a deliberate and calculated crime of choice. It is therefore
more susceptible to general deterrence. United States v. Martin, 455 F.3d 1227, 1240 (11th Cir.
2006) (finding that crimes that are “rational, cool, and calculated” rather than “crimes of passion
Case 2:22-cr-00161 Document 45 Filed 05/11/23 Page 4 of 6 PageID #: 202
5
or opportunity” are “prime candidate[s] for general deterrence”) (citation omitted). Due to the
prevalence of governmental program fraud, the United States often lacks the resources to
investigate and prosecute all bad actors. Accordingly, general deterrence is a critically important
to dissuading others from engaging in similar conduct. See United States v. Morgan, 635 F. App'x
423, 450 (10th Cir. 2015) (“General deterrence comes from a probability of conviction and
significant consequences. If either is eliminated or minimized, the deterrent effect is
proportionately minimized.”). Defrauding governmental relief programs aimed at assisting those
in need misuses taxpayer dollars and increases governmental cynicism. This Court should impose
a sentence to deter Defendant and others from repeating this type of criminal conduct.
IV.
Conclusion
Defendant used fraud and deception to profit from a generational tragedy. A sentence
within Defendant’s advisory guideline range of 6-12 months would be an appropriate sentence
considering all the factors under 18 U.S.C. § 3553(a). The United States does not intend to call
any witnesses at the sentencing hearing and believes the hearing can be conducted in thirty
minutes.
Respectfully submitted,
WILLIAM S. THOMPSON
United States Attorney
By:
s/ M. Ryan Blackwell
M. RYAN BLACKWELL
Assistant United States Attorney
WV State Bar No. 14031
300 Virginia Street, East, Room 4000
Charleston, WV 25301
Phone: 304-345-2200
Fax: 304-347-5104
E-mail: ryan.blackwell@usdoj.gov
Case 2:22-cr-00161 Document 45 Filed 05/11/23 Page 5 of 6 PageID #: 203
CERTIFICATE OF SERVICE
It is hereby certified that the foregoing “UNITED STATES SENTENCING
MEMORANDUM” has been electronically filed and service has been made on opposing counsel
by virtue of such electronic filing this 11th day of May, 2023 to:
David Bungard
First Assistant Federal Public Defender
Federal Public Defender’s Office
300 Virginia Street, East
Room 3400
Charleston, West Virginia 25301
Telephone: (304) 347-3350
Facsimile: (304) 347-3356
E-mail: David_Bungard@fd.org
s/ M. Ryan Blackwell
M. RYAN BLACKWELL
Assistant United States Attorney
WV State Bar No. 14031
300 Virginia Street, East
Room 4000
Charleston, WV 25301
Phone: 304-345-2200
Fax: 304-347-5104
E-mail: ryan.blackwell@usdoj.gov
Case 2:22-cr-00161 Document 45 Filed 05/11/23 Page 6 of 6 PageID #: 204File and source
- File
- gov.uscourts.wvsd.234811.45.0.pdf
- Size
- 162,173 bytes
- SHA-256
- e254d4739cc82c4655be83ae5276172090a1f1736ad9801c722c1150d73859a9
- Original
- PACER (login required)