Plea Agreement — United States v. Butherde Darius (D.N.J.)

Record facts

U.S. District Court for the District of New Jersey · No. 3:22-cr-00783-GC · Doc. 24 · 2022-11-21 · Docket on CourtListener

Full text

Case 3:22-cr-00783-GC Document 24 _ Filed 11/21/22 Page 1of11 PagelD: 63

RECEIVED

NOV 2 1 2022
AT 8:30
WILLIAM T. WALSH
CLERK
United States Attorney
District of New Jersey
970 Broad Street, 7" floor 978-645-2700
Newark, New Jersey 07102 Fax: 973-645-2702
DED/PL.AGR
2021R00365

August 12, 2022

Rahul Sharma, Esq.

Assistant Federal Public Defender
1002 Broad Street

Newark, NJ 07102

973-320-7350 (cell)

rahul sharma@fd.org

Re: Plea Agreement with Butherde Darius / Po /# ee} Cf (G 5)

Dear Mr. Sharma:

This letter sets forth the plea agreement between your client, Butherde
Darius (“DARIUS”), and the United States Attorney for the District of New Jersey
(“this Office”). The government’s offer to enter into this plea agreement will expire
on August 29, 2022, if it is not accepted in writing by that date.

Charges

Conditioned on the understandings specified below, this Office will accept a
guilty plea from DARIUS to a two-count Information that charges DARIUS, in
Count One, with conspiracy to commit bank fraud, contrary to 18 U.S.C. § 1344, in
violation of 18 U.S.C. § 13849; and, in Count Two, with money laundering, in
violation of 18 U.S.C. § 1957.

If DARIUS enters a guilty plea and is sentenced on these charges, and
otherwise fully complies with all of the terms of this agreement, this Office will not
initiate any further criminal charges against DARIUS for, from in or about April
2020 to in or about October 2020, engaging in a scheme to fraudulently obtain
federal Paycheck Protection Program (“PPP”) loans and Economic Injury Disaster
Loans (““EIDL”).
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However, in the event that a guilty plea in this matter is not entered for any
reason or the judgment of conviction entered as a result of this guilty plea does not
remain in full force and effect, DARIUS agrees that any dismissed charges and any
other charges that are not time-barred by the applicable statute of limitations on
the date this agreement is signed by DARIUS may be commenced against him,
notwithstanding the expiration of the limitations period after DARIUS signs the
agreement.

Sentencing

The violation of 18 U.S.C. § 1349, contrary to 18 U.S.C. § 1344, to which
DARIUS agrees to plead guilty carries a statutory maximum prison sentence of
thirty years and a statutory maximum fine equal to the greatest of (1) $1,000,000,
(2) twice the gross amount of any pecuniary gain that any persons derived from the
offense, or (8) twice the gross amount of any pecuniary loss sustained by any victims
of the offense.

The violation of 18 U.S.C. § 1957 to which DARIUS agrees to plead guilty
carry a statutory maximum prison sentence of ten years and a statutory maximum
fine equal to the greatest of (1) $250,000, (2) twice the gross amount of any
pecuniary gain that any persons derived from the offense, or (8) twice the gross
amount of any pecuniary loss sustained by any victims of the offense.

The sentences on each count may run consecutively. Fines imposed by the
sentencing judge may be subject to the payment of interest.

The sentence to be imposed upon DARIUS is within the sole discretion of the
sentencing judge, subject to the provisions of the Sentencing Reform Act, 18 U.S.C.
§§ 3551-3742, and the sentencing judge’s consideration of the United States
Sentencing Guidelines. The United States Sentencing Guidelines are advisory, not
mandatory. The sentencing judge may impose any reasonable sentence up to and
including the statutory maximum term of imprisonment and the maximum
statutory fine. This Office cannot and does not make any representation or promise
as to what guideline range may be found by the sentencing judge, or as to what
sentence DARIUS ultimately will receive.

Further, in addition to imposing any other penalty on DARIUS, the
sentencing judge (1) will order DARIUS to pay an assessment of $100 per count
pursuant to 18 U.S.C. § 8013, which assessment must be paid by the date of
sentencing; (2) with respect to Count One, must order DARIUS to pay restitution
pursuant to 18 U.S.C. § 3663A; (8) with respect to all counts, may order DARIUS,
pursuant to 18 U.S.C. § 3555, to give notice to any victims of his offense; (4) with
respect to all counts, must order DARIUS to pay forfeiture, pursuant to 18 U.S.C. §§
982(a)(1) and 982(a)(2), and 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c), (2);

ws
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and (5) pursuant to 18 U.S.C. § 3583, may require DARIUS to serve a term of
supervised release of not more than five years, with respect to Count One, and not
more than three years, with respect to Count Two, which will begin at the
expiration of any term of imprisonment imposed. Should DARIUS be placed on a
term of supervised release and subsequently violate any of the conditions of
supervised release before the expiration of its term, DARIUS may be sentenced to
not more than three years imprisonment, with respect to violation of a term of
supervised release imposed in connection with Count One, or two years’
imprisonment, with respect to a violation of a term of supervised release imposed in
connection with Count Two, in addition to any prison term previously imposed,
regardless of the statutory maximum term of imprisonment set forth above and
without credit for time previously served on post-release supervision, and may be
sentenced to an additional term of supervised release.

Restitution

Pursuant to the Mandatory Victim Restitution Act, 18 U.S.C. § 3663A,
DARIUS agrees to pay full restitution to the victims of the offenses charged in the
Information in an amount that fully compensates the victims for the losses
sustained as a result of those offenses as detailed in paragraph 20 of the Attached

Schedule A.
Forfeiture

As part of his acceptance of responsibility, and (1) pursuant to 18 U.S.C. §
982(a)(2), DARIUS agrees to forfeit to the United States all of his right, title, and
interest in all property, real or personal, that constitutes or is derived from proceeds
traceable to the conspiracy to commit bank fraud charged in Count One of the
Information, (2) pursuant to 18 U.S.C. § 982(a)(1), DARIUS agrees to forfeit to the
United States, any and all property involved in, or traceable to, the money
laundering offense charged in Count Two of the Information. DARIUS further
agrees that the aggregate value of such property was $852,205; that one or more of
the conditions set forth in 21 U.S.C. § 853(p) exists; and that the United States is
therefore entitled to forfeit substitute assets equal to the value of the proceeds
obtained by the defendant (the “Forfeiture Amount”), in an amount not to exceed
$852,205 (the “Money Judgment”). The defendant consents to the entry of an order
requiring the defendant to pay the Forfeiture Amount, in the manner described
below (the “Order”), and that the Order will be final as to the defendant prior to
sentencing, pursuant to Rule 32.2(b)(4) of the Federal Rules of Criminal Procedure,
and which may be satisfied in whole or in part with substitute assets. The
defendant further agrees that upon entry of the Order, the United States Attorney’s
Office is authorized to conduct any discovery needed to identify, locate, or dispose of
property sufficient to pay the Forfeiture Amount in full or in connection with any
petitions filed with regard to proceeds or substitute assets, including depositions,

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interrogatories, and requests for production of documents, and the issuance of
subpoenas.

All payments made in full or partial satisfaction of the Forfeiture Amount
shall be made by postal money order, bank, or certified check, made payable in this
instance to the United States Marshals Service, indicating the defendant’s name
and case number on the face of the check; and shall be delivered by mail to the
United States Attorney’s Office, District of New Jersey, Attn: Asset Forfeiture and
Money Laundering Unit, 970 Broad Street, 7th Floor, Newark, New Jersey 07102.

DARIUS waives the requirements of Rules 32.2 and 48(a) of the Federal
Rules of Criminal Procedure regarding notice of the forfeiture in the charging
instrument, announcement of the forfeiture at sentencing, and incorporation of the
forfeiture in the judgment. The defendant understands that criminal forfeiture is
part of the sentence that may be imposed in this case and waives any failure by the
court to advise him of this pursuant to Rule 11(b)(1)(@J) of the Federal Rules of
Criminal Procedure at the guilty plea proceeding. The defendant waives any and
all constitutional, statutory, and other challenges to the forfeiture on any and all
grounds, including that the forfeiture constitutes an excessive fine or punishment
under the Eighth Amendment. It is further understood that any forfeiture of the
defendant’s assets shall not be treated as satisfaction of any fine, restitution, cost of
imprisonment, or any other penalty the Court may impose upon him in addition to
forfeiture.

DARIUS further agrees that not later than the date he enters his plea of
guilty he will provide a complete and accurate Financial Disclosure Statement on
the form provided by this Office. If DARIUS fails to provide a complete and
accurate Financial Disclosure Statement by the date he enters his plea of guilty, or
if this Office determines that DARIUS has intentionally failed to disclose assets on
his Financial Disclosure Statement, DARIUS agrees that that failure constitutes a
material breach of this agreement, and this Office reserves the right, regardless of
any agreement or stipulation that might otherwise apply, to oppose any downward
adjustment for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, and to
seek leave of the Court to withdraw from this agreement or seek other relief.

Rights of this Office Regarding Sentencing

Except as otherwise provided in this agreement, this Office reserves its right
to take any position with respect to the appropriate sentence to be imposed on
DARIUS by the sentencing judge, to correct any misstatements relating to the
sentencing proceedings, and to provide the sentencing judge and the United States
Probation Office all law and information relevant to sentencing, favorable or
otherwise. In addition, this Office may inform the sentencing judge and the United

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States Probation Office of (1) this agreement and (2) the full nature and extent of
DARIUS’s activities and relevant conduct with respect to this case.

Stipulations

This Office and DARIUS agree to stipulate at sentencing to the statements
set forth in the attached Schedule A, which hereby is made a part of this plea
agreement. This agreement to stipulate, however, cannot and does not bind the
sentencing judge, who may make independent factual findings and may reject any
or all of the stipulations entered into by the parties. To the extent that the parties
do not stipulate to a particular fact or legal conclusion, each reserves the right to
argue the existence of and the effect of any such fact or conclusion upon the
sentence. Moreover, this agreement to stipulate on the part of this Office is based on
the information and evidence that this Office possesses as of the date of this
agreement. Thus, if this Office obtains or receives additional evidence or
information prior to sentencing that it determines to be credible and to be
materially in conflict with any stipulation in the attached Schedule A, this Office
shall not be bound by any such stipulation. A determination that any stipulation is
not binding shall not release either this Office or DARIUS from any other portion of
this agreement, including any other stipulation. If the sentencing court rejects a
stipulation, both parties reserve the right to argue on appeal or at post-sentencing
proceedings that the sentencing court was within its discretion and authority to do
so. These stipulations do not restrict the Government’s right to respond to questions
from the Court and to correct misinformation that has been provided to the Court.

Waiver of Appeal and Post-Sentencing Rights

As set forth in Schedule A, this Office and DARIUS waive certain rights to
file an appeal, collateral attack, writ, or motion after sentencing, including but not
limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255.

Immigration Consequences

DARIUS understands that, if he is not a citizen of the United States, his
guilty plea to the charged offense will likely result in him being subject to
immigration proceedings and removed from the United States by making him
deportable, excludable, or inadmissible, or ending his naturalization. DARIUS
understands that the immigration consequences of this plea will be imposed in a
separate proceeding before the immigration authorities. DARIUS wants and agrees
to plead guilty to the charged offense regardless of any immigration consequences of
this plea, even if this plea will cause his removal from the United States. DARIUS
understands that he is bound by his guilty plea regardless of any immigration
consequences of the plea. Accordingly, DARIUS waives any and all challenges to his
guilty plea and to his sentence based on any immigration consequences, and agrees

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not to seek to withdraw his guilty plea, or to file a direct appeal or any kind of
collateral attack challenging his guilty plea, conviction, or sentence, based on any
immigration consequences of his guilty plea.

Other Provisions

This agreement is limited to the United States Attorney’s Office for the
District of New Jersey and cannot bind other federal, state, or local authorities.
However, this Office will bring this agreement to the attention of other prosecuting
offices, if requested to do so.

This agreement was reached without regard to any civil or administrative
matters that may be pending or commenced in the future against DARIUS. This
agreement does not prohibit the United States, any agency thereof (including the
Internal Revenue Service), or any third party from initiating or prosecuting any
civil or administrative proceeding against DARIUS.

No provision of this agreement shall preclude DARIUS from pursuing in an
appropriate forum, when permitted by law, an appeal, collateral attack, writ, or
motion claiming that DARIUS received constitutionally ineffective assistance of
counsel.

//
//
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No Other Promises

This agreement constitutes the plea agreement between DARIUS and this
Office and supersedes any previous agreements between them. No additional
promises, agreements, or conditions have been made or will be made unless set
forth in writing and signed by the parties.

Very truly yours,
PHILIP R. SELLINGER

United States Attorney

/s David E. Dauenheimer

By: DAVID E. DAUENHEIMER
Assistant U.S. Attorney

APPROVED:
pny hl
Jason S. Gdul

Chief, Health Care Fraud Unit
Case 3:22-cr-00783-GC Document 24 _ Filed 11/21/22 Page 8 of 11 PagelD: 70

I have received this letter from my attorney, Rahul Sharma, Esq. I have read
this letter. My attorney and I have discussed the letter and all of its provisions,
including the provisions addressing the charge, sentencing, restitution, forfeiture,
the stipulations, waiver, and immigration consequences. | understand the letter
fully. I hereby accept the terms and conditions set forth in this letter and
acknowledge that it constitutes the plea agreement between the parties. I
understand that no additional promises, agreements, or conditions have been made
or will be made unless set forth in writing and signed by the parties. I want to plead
guilty pursuant to this plea agreement.

AGREED AND ACCEPTED:

bbc J Date: afaes/z

Butherde Darius

I have discussed with my client this plea agreement and all of its provisions,
including those addressing the charge, sentencing, restitution, forfeiture, the
stipulations, waiver, and immigration consequences. My client understands the
letter fully and wants to plead guilty pursuant to this plea agreement.

/>/ SZ Date: 8/as (22

“Rahul Sharma, Esq.

Case 3:22-cr-00783-GC Document 24 Filed 11/21/22 Page 9 of 11 PagelD: 71

Plea Agreement With Butherde Darius

Schedule A

1. This Office and Butherde Darius (“DARIUS”) recognize that the
United States Sentencing Guidelines are not binding upon the Court. This Office
and DARIUS nevertheless agree to the stipulations set forth herein and agree that
the Court should sentence DARIUS within the Guidelines range that results from
the total Guidelines offense level set forth below. This Office and DARIUS further
agree that neither party will argue for the imposition of a sentence outside the
Guidelines range that results from the agreed total Guidelines offense level.

Ds The version of the United States Sentencing Guidelines, effective
November 1, 2021, applies in this case.

3. The applicable guideline for Count One as charged in the Information
is U.S.S.G. § 2X1.1, which provides that the base offense level for a conspiracy is the
base offense level from the guideline for the substantive offense, plus any
adjustments from such guideline for any intended offense conduct that can be
established with reasonable certainty. Because the substantive offense is bank
fraud, the applicable guideline for Count One is U.S.S.G. § 2B1.1.

4. Because the offense of conviction has a statutory maximum term of
imprisonment of 20 years or more, the base offense level is 7. See U.S.S.G.

§ 2B1.1(a)(1).

5. Because this offense involved loss totaling more than $550,000 but not
more than $1,500,000, the Specific Offense Characteristic results in an increase of
14 levels. See U.S.S.G. § 2B1.1(b)(1) (BH).

6. The offense level for Count One is 21.

7. The applicable guideline for Count Two as charged in the Information
is U.S.S.G. § 281.1, which requires the application of U.S.S.G. § 2B1.1, which is the
applicable guideline for the underlying offense from which the laundered funds
were derived (bank fraud). U.S.S.G. § 281.1(a)(1).

8. Because the underlying offense of conviction has a statutory maximum
term of imprisonment of 20 years or more, the base offense level is 7. See U.S.S.G.
§ 2B1.1(a)(1).

9. Because the underlying offense involved a loss totaling more than
$550,000 but not more than $1,500,000, the Specific Offense Characteristic results
in an increase of 14 levels. See U.S.S.G. § 2B1.1(b)(1)(H).

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10. Because the offense charged in Count Two of the Information is a
violation of 18 U.S.C. § 1957, the offense level is increased by one level. See
U.S.S.G. § 251.1(b)(2)(A).

11. The offense level for Count Two is 22.

12. Pursuant to U.S.S.G. § 3D1.2(d), Counts One and Two are grouped as
closely related counts because the offense level for each count is determined largely
on the basis of total amount of harm or loss. Because the counts involve offenses of
the same general type to which different guidelines apply, the offense guideline that
produces the highest offense level is applied. See U.S.S.G. § 3D1.3(b).

13. The Total Offense Level is therefore 22.

14. Asofthe date of this letter, DARIUS has clearly demonstrated a
recognition and affirmative acceptance of personal responsibility for the offense
charged. Therefore, a downward adjustment of 2 levels for acceptance of

responsibility is appropriate if DARIUS’s acceptance of responsibility continues
through the date of sentencing. See U.S.S.G. § 3E1.1(a).

15.  Asofthe date of this letter, DARIUS has assisted authorities in the
investigation or prosecution of his own misconduct by timely notifying authorities of
his intention to enter a plea of guilty, thereby permitting this Office to avoid
preparing for trial and permitting this Office and the court to allocate their
resources efficiently. At sentencing, this Office will move for a further 1-point
reduction in DARIUS’s offense level pursuant to U.S.S.G. § 3E1.1(b) if the following
conditions are met: (a) DARIUS enters a plea pursuant to this agreement, (b) this
Office in its discretion determines that DARIUS’s acceptance of responsibility has
continued through the date of sentencing and DARIUS therefore qualifies for a 2-
point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a), and
(c) DARIUS’s offense level under the Guidelines prior to the operation of § 3E1.1(a)
is 16 or greater.

16. In accordance with the above, the parties agree that the total
Guidelines offense level applicable to DARIUS is 19 (the “agreed total Guidelines
offense level”).

17. The parties agree not to seek or argue for any upward or downward
departure, adjustment or variance not set forth herein. The parties further agree
that a sentence within the Guidelines range that results from the agreed total
Guidelines offense level of 19 is reasonable.

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18. DARIUS knows that he has and, except as noted below in this
paragraph, voluntarily waives, the right to file any appeal, any collateral attack, or
any other writ or motion, including but not limited to an appeal under 18 U.S.C.

§ 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed
by the sentencing court if that sentence falls within or below the Guidelines range
that results from the agreed total Guidelines offense level of 19. This Office will not
file any appeal, motion or writ which challenges the sentence imposed by the
sentencing court if that sentence falls within or above the Guidelines range that
results from the agreed total Guidelines offense level of 19. The parties reserve any
right they may have under 18 U.S.C. § 3742 to appeal the sentencing court’s
determination of the criminal history category. The provisions of this paragraph are
binding on the parties even if the Court employs a Guidelines analysis different
from that stipulated to herein. Furthermore, if the sentencing court accepts a
stipulation, both parties waive the right to file an appeal, collateral attack, writ, or
motion claiming that the sentencing court erred in doing so.

19. Both parties reserve the right to file or to oppose any appeal, collateral
attack, writ or motion not barred by the preceding paragraph or any other provision
of this plea agreement. Moreover, the preceding paragraph does not apply to:

a. Any proceeding to revoke the term of supervised release.

b. A motion for a reduction of the term of imprisonment under 18

U.S.C. § 3582(c)(1)(A).

c. An appeal from the denial of a motion for a reduction of the term of
imprisonment under 18 U.S.C. § 3582(c)(1)(A) on the grounds that the
court erred in finding that there were no extraordinary and compelling
circumstances warranting a reduced term of imprisonment or that the
court failed to consider those circumstances in denying the motion as a
discretionary matter under the applicable factors of 18 U.S.C. § 3553(a).

20. This Office and DARIUS agree to stipulate that the victims sustained
losses in the amounts listed below as a result of the offenses charged in the
Information as follows:

Victim Amount
Celtic Bank Corporation $852,205

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