United States of America v.  Joshua Benjamin Butler, Iv

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4840 
JOSHUA BENJAMIN BUTLER, IV,
Defendant-Appellant. 
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 00-4909 
KIMBERLY EDWARDS,
Defendant-Appellant. 
Appeals from the United States District Court
for the Western District of North Carolina, at Charlotte.
Lacy H. Thornburg, District Judge.
(CR-00-6-T)
Submitted: May 15, 2001
Decided: June 29, 2001
Before WIDENER and MOTZ, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.

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COUNSEL
Sandra Michaels, Atlanta, Georgia; Lyle J. Yurko, YURKO &
OWENS, P.A., Charlotte, North Carolina; Ronald J. Freeman, JOHN-
SON, FREEMAN & PERKINS-HOOKER, L.L.C., Atlanta, Georgia,
for Appellants. Robert J. Conrad, Jr., United States Attorney, Kenneth
M. Smith, Assistant United States Attorney, Charlotte, North Caro-
lina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Joshua Benjamin Butler, IV, and Kimberly Edwards pled guilty to
conspiracy to commit a federal offense, 18 U.S.C. § 371 (1994), and
computer fraud, 18 U.S.C.A. § 1030(a)(4) (West 2000), 18 U.S.C. § 2
(1994). Butler was sentenced to a term of twenty-one months impris-
onment. Edwards received a sentence of fifteen months imprison-
ment. In this appeal, Butler contests the three-level adjustment he
received under U.S. Sentencing Guidelines Manual § 3B1.1(b)
(2000), for being a manager or supervisor, and Edwards challenges
the extent of the district court’s departure for substantial assistance in
her case. We affirm Butler’s and Edwards’ sentences.*
Between September and December 1998, while Edwards was
working as a customer assistance specialist with Equifax, a credit
reporting agency in Atlanta, Georgia, Butler supplied her with the
names, addresses, and Social Security numbers of persons who
wanted to improve their credit ratings. Edwards then removed nega-
tive information from the files and added favorable credit informa-
tion. Butler obtained the information he supplied to Edwards from
*We grant Appellants’ motion to correct their brief.
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Alvarado Clarke, who lived in Charlotte, North Carolina, and repre-
sented himself as a "credit doctor" who could help people improve
their credit standing. Clarke paid Butler about $500 for each file that
was altered. Edwards and Clarke apparently did not know each other
and never met. Edwards initially admitted that Butler and she split the
$500 payments from Clarke equally. Later, she testified at a co-
defendant’s trial that she received no money from Butler. At her sen-
tencing, her lawyer represented that she had received less than $1000.
While the conspiracy continued, Edwards altered approximately
sixty Equifax files. With their credit thus "cleansed," a number of co-
defendants bought expensive houses and vehicles on credit. As a
result, creditors in North Carolina and Georgia extended or approved
approximately $1.1 million in credit to the co-conspirators and others
whose files were altered.
Butler objected to the probation officer’s suggestion that he man-
aged or supervised Edwards, arguing that he "merely acted as a go-
between." The district court found that Butler was actually a leader
in the offense because he was a "crucial link in the organization," and
his participation made it successful. However, the court decided not
to increase the adjustment to four levels, see USSG § 3B1.1(a), and
instead accepted the probation officer’s recommendation for a three-
level adjustment under § 3B1.1(b).
On appeal, Butler maintains that the district court erred in making
no specific findings of fact to support the manager or supervisor
adjustment and, in particular, in not explaining what acts Butler per-
formed that were managerial. The district court’s finding was indeed
brief, but adequate to set out its reasons for finding that Butler had
an aggravated role. That the court did not focus on Butler’s supervi-
sory or managerial conduct is understandable in light of the fact that
the district court actually found that Butler was a leader in the
offense, not a manager or supervisor.
A sentencing court’s determination of the defendant’s role in the
offense is a factual finding reviewed for clear error. United States v.
Perkins, 108 F.3d 512, 518 (4th Cir. 1997). If the district court did
not clearly err in finding that Butler was a leader in the offense, then
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we may affirm its decision to give him a lesser adjustment—in effect,
a one-level downward departure.
Application Note 4 to § 4B1.1 lists a number of factors that the
court should consider in distinguishing a leadership role from one of
management or supervision. Among them are the nature of participa-
tion in the commission of the offense and the degree of participation
in planning or organizing the offense. The district court stated several
times that it considered Butler to have had a pivotal role in the
offense, and that the conspiracy could not have gone forward without
him because he provided the link between Edwards, who was capable
of altering credit files, and Clarke, who found customers willing to
pay for this service. Although Butler’s attorney argued that he was
expendable because Edwards and Clarke could have dealt directly
with each other, in fact they were connected only through Butler. On
these facts, we find that the district court did not clearly err in finding
that Butler was a leader in the offense. Thus, because a four-level
adjustment would not have been clear error, the lesser adjustment was
not clear error. The district court effectively departed downward by
one level.
In Edwards’ case, although the government recommended a four-
level departure under USSG § 5K1.1, p.s. based on her substantial
assistance, the district court departed by only two offense levels, find-
ing that the lesser departure was more appropriate because Edwards
was the person who actually altered the credit files at Equifax.
Edwards contends that the court erred by considering her culpability
in determining how far to depart. Edwards, however, failed to object
to this asserted error in the district court. Accordingly, our review is
for plain error. See United States v. Olano, 507 U.S. 725 (1993). We
cannot find any plain error affecting Edwards’ substantial rights,
which seriously affects the fairness, integrity or public reputation of
the judicial process. See id. at 731-32.
We therefore affirm Butler’s and Edwards’ sentences. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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