Filed: Jan. 24, 2017
Latest Update: Mar. 03, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4479 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KOFI OHENE AGYEKUM, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:14-cr-00197-1) Argued: September 23, 2016 Decided: January 24, 2017 Before NIEMEYER, MOTZ, and WYNN, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote the opinion,
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4479 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KOFI OHENE AGYEKUM, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Huntington. Robert C. Chambers, Chief District Judge. (3:14-cr-00197-1) Argued: September 23, 2016 Decided: January 24, 2017 Before NIEMEYER, MOTZ, and WYNN, Circuit Judges. Affirmed by published opinion. Judge Niemeyer wrote the opinion, ..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4479
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KOFI OHENE AGYEKUM,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
Chief District Judge. (3:14-cr-00197-1)
Argued: September 23, 2016 Decided: January 24, 2017
Before NIEMEYER, MOTZ, and WYNN, Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Motz concurred and Judge Wynn concurred
in part. Judge Wynn wrote a separate opinion concurring in part
and dissenting in part.
ARGUED: Jonathan D. Byrne, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Charleston, West Virginia, for Appellant. Monica D.
Coleman, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee. ON BRIEF: Christian M. Capece, Federal
Public Defender, Rachel E. Zimarowski, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston,
West Virginia, for Appellant. R. Booth Goodwin II, United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charleston, West Virginia, for Appellee.
NIEMEYER, Circuit Judge:
Pursuant to a plea agreement, Kofi Agyekum pleaded guilty
to two counts of structuring cash transactions to evade
reporting requirements, in violation of 31 U.S.C. § 5324, and
agreed to forfeit significant assets. When, at sentencing, the
district court calculated Agyekum’s sentencing range under the
Sentencing Guidelines, it increased Agyekum’s offense level
based on his leadership role and his abuse of a position of
trust in connection with a drug distribution conspiracy that the
district court found to be “relevant conduct” under U.S.S.G.
§ 1B1.3.
On appeal, Agyekum challenges the district court’s
conclusion that his participation in a drug conspiracy qualified
as “relevant conduct” to his structuring convictions. And in
connection with his agreement to forfeit assets, he contends
that the district court failed to ensure that he was adequately
aware of all of the procedural protections he was waiving.
Finding no reversible error, we affirm.
I
In October 2012, Kofi Agyekum and his wife, Patricia
Agyekum, opened A+ Care Pharmacy in Barboursville, West
Virginia. Patricia was the licensed pharmacist, while Kofi was
a licensed pharmacist intern. Kofi had completed pharmacy
2
school but had failed the board examination. Kofi Agyekum,
nonetheless, functioned as the chief executive officer of A+
Care Pharmacy, “controll[ing] everything,” as his wife later
explained.
In June 2014, as IRS and DEA agents were investigating a
drug trafficking organization that was illegally distributing
oxycodone pills in and around Lincoln County, West Virginia, the
agents began to focus on A+ Care Pharmacy as a source of the
drugs. Specifically, after agents searched the Florida home of
the suspected head of the drug trafficking organization, the
suspect agreed to serve as a confidential informant (“CI”),
telling agents that he and his fiancée had started filling
prescriptions at A+ Care Pharmacy in November 2012, in part
because the pharmacy was willing to fill out-of-state
prescriptions. The CI indicated that after approximately four
months of dealing with A+ Care Pharmacy, Kofi Agyekum, who
appeared to be in charge of the pharmacy, told him to have his
physician start writing prescriptions for non-narcotics in
addition to the narcotic prescriptions to avoid raising the
DEA’s suspicion. Agyekum also directed that the CI pay for
future prescriptions in cash.
The law enforcement agents twice used the CI to make
controlled purchases of oxycodone and other drugs from A+ Care
Pharmacy. During the first transaction on June 13 and 16, 2014,
3
Agyekum charged the CI $1,100 more than he had previously
charged him for the same prescriptions; asked the CI what he was
doing with the prescription pill bottles; responded “Ok” when
the CI said that he burned the bottles; agreed to fill other
out-of-state prescriptions for the CI’s employees; and tore off
dosing receipts identifying A+ Care Pharmacy as the filling
pharmacy before handing over the prescriptions, stating that he
did not want to leave a paper trail. During the second
transaction on July 21, 2014, when the CI asked if he could
purchase oxycodone tablets without a prescription, Agyekum
responded that the CI should check with him the following month.
The investigation of A+ Care Pharmacy and Agyekum also
revealed their connection with a drug trafficking operation led
by Anthony Ferguson, which operated out of Owingsville,
Kentucky, and which also used A+ Care Pharmacy as a supplier of
oxycodone pills for illegal distribution. Between January and
July 2014, Ferguson paid for a number of people to travel
regularly to Georgia, Florida, and Virginia to obtain oxycodone
prescriptions and fill them at A+ Care Pharmacy, visiting the
pharmacy about two or three times a week and filling five to six
prescriptions at a time. Ferguson or his lieutenant always paid
cash for the prescriptions, and Agyekum charged Ferguson more to
fill prescriptions for members of the organization who were
“doctor shoppers.” In March or April 2014, Agyekum began
4
selling oxycodone to Ferguson without a prescription, usually
charging $1,500 for 100 30-milligram oxycodone pills. On one
occasion in July 2014, Ferguson gave Agyekum a 2004 Nissan
Maxima in exchange for 200 oxycodone pills, and on another
occasion later that month, Ferguson bought 1,000 oxycodone pills
from Agyekum for $15,000.
According to DEA records, “A+ Care Pharmacy was the third
largest distributor of oxycodone in West Virginia for 2014,” and
the drug made up 70% of the pharmacy’s annual dosage units for
2014.
The law enforcement agents also began investigating
Agyekum’s banking practices. A bank teller at the Fifth Third
Bank in Barboursville told agents that when Agyekum attempted to
deposit $16,000 in cash into a savings account on December 23,
2013, the teller began completing a currency transaction report
for the deposit, as banks are required to do for transfers
involving more than $10,000 in U.S. currency, prompting Agyekum
to ask how he could avoid the reporting paperwork. After the
teller explained the reporting paperwork, Agyekum asked if the
report would still have to be filed if he made the deposits on
different days or used different branches. He then asked for
$7,000 of the cash back, depositing only $9,000 that day. He
returned later in the week and made additional cash deposits of
just under $10,000.
5
In a similar manner, Agyekum opened a savings account at
J.P. Morgan Chase Bank on February 24, 2014, and deposited
$13,500 in cash into that account the next day. When a teller
asked for his identification in order to prepare the currency
transaction report, Agyekum was reluctant to provide it and
asked about the amounts that triggered the reporting
requirement. After the teller told Agyekum that deposits over
$10,000 would require the filing of the report, Agyekum never
again deposited over $10,000 in a single transaction. Moreover,
in the two-month period after he opened the J.P. Morgan Chase
savings account, Agyekum opened six additional accounts on which
he was listed as the sole owner and signer.
In total, from March 3 through August 9, 2014, Agyekum made
structured cash deposits of $469,930 into bank accounts at five
different banks. For example, after A+ Care Pharmacy had taken
in approximately $40,647 in cash proceeds during the three-day
period from April 22 through April 24, 2014, Agyekum made a
series of deposits on April 25, depositing $8,000 in cash at
J.P. Morgan Chase Bank; $8,000 in cash at Fifth Third Bank;
$9,500 at Huntington National Bank; $2,500 in cash at First
Sentry Bank; and another $6,000 in cash into a different account
at First Sentry Bank. When he made the deposit at Fifth Third
Bank, Agyekum attempted to explain the deposit by telling the
branch manager that the cash was coming from his business and
6
that he did not accept checks or credit card payments from his
clientele. After the Fifth Third Bank branch manager then gave
Agyekum a brochure on structuring and currency transaction
reporting requirements, Agyekum opened two new accounts that
same day at First Sentry Bank, telling an employee there that he
was aware that any cash deposits over $10,000 would have to be
reported and assuring the teller that all of his deposits would
fall under that threshold. Similarly, after A+ Care Pharmacy
took in approximately $40,109 in cash during the period from
June 2 through June 4, Agyekum deposited $31,600 in cash in six
transactions at four different banks on June 5 and 6, 2014.
When law enforcement agents executed a search warrant at A+
Care Pharmacy on August 14, 2014, they recovered $38,000 in cash
that was lying on top of 51,000 oxycodone pills in the
pharmacy’s safe. Patricia Agyekum later led the agents to
another $30,000 in cash that was hidden under Agyekum’s desk at
the pharmacy. In addition to the cash recovered at the
pharmacy, agents also seized 20 bank accounts associated with
Agyekum, as well as $442,200 in cash contained in two safe
deposit boxes, for a total of $2,361,109.17. The agents also
seized Agyekum’s 2011 Lexus station wagon, which he had
purchased with a cashier’s check from one of the bank accounts.
After Agyekum was arrested, a grand jury returned a third
superseding indictment that charged him with participating in a
7
conspiracy from August 2013 to August 2014 to distribute
oxycodone outside the usual course and scope of professional
practice and not for a legitimate medical purpose, in violation
of 21 U.S.C. § 846. The indictment also charged him with three
counts of distributing oxycodone, and aiding and abetting the
same, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2.
Finally, the indictment charged him with 40 counts of money
laundering, in violation of 18 U.S.C. § 1956(a)(1)(B)(i), and 11
counts of structuring currency transactions to evade reporting
requirements, in violation of 31 U.S.C. § 5324(a)(3), (d). The
indictment also contained a forfeiture notice, informing Agyekum
that his 2011 Lexus station wagon, a residence located at 3
Castle Gate, Ona, West Virginia, and a sum of more than $2.3
million in U.S. currency were subject to forfeiture.
More than six months after his arrest, in April 2015,
Agyekum signed a written plea agreement in which he agreed to
plead guilty to Counts 44 and 45 of the third superseding
indictment, which charged him with structuring cash deposits to
evade reporting requirements on April 25, 2014 and on June 5 and
6, 2014. He also agreed not to contest the judicial forfeiture
of his assets, acknowledging that “all property covered by this
agreement [was] subject to forfeiture” and that “the United
States could establish, by a preponderance of the evidence, a
criminal and/or civil forfeiture proceeding against [him] . . .
8
arising out of his involvement in a money laundering scheme” and
“his involvement in . . . a conspiracy to distribute quantities
of oxycodone.” He also acknowledged “that the forfeiture of
assets [was] part of the sentence that [could] be imposed in
this case” and agreed to “waive[] any failure by the court to
advise him of this, pursuant to Rule 11(b)(1)(J), at the time
his guilty plea is accepted.” He also agreed to waive “all
constitutional and statutory challenges in any manner . . . to
any forfeiture carried out in accordance with this Plea
Agreement.” In return, the government agreed to dismiss the
remaining counts of the indictment.
When Agyekum appeared before the district court to plead
guilty pursuant to the plea agreement, he told the court that he
had reviewed all the paragraphs of the agreement with his
attorney and agreed to them with the exception of the paragraph
containing the forfeiture provision. He stated that he
“disagree[d]” with that paragraph because “the Government is
trying to take everything away from me.” The court thereupon
terminated the plea hearing.
A week later, however, Agyekum again appeared before the
district court to plead guilty under the plea agreement. He
stated that after further discussion with his attorney, he had
decided to go through with the agreement. He stated that he
understood “about the forfeiture provisions that are in the plea
9
agreement” and that he wanted the court to accept the plea
agreement. When the court inquired specifically whether Agyekum
now accepted the plea agreement’s forfeiture provision, Agyekum
responded that he had “no choice” but to accept the forfeiture.
When the district court explained that he did have a choice and
that his “choice would be to either comply with the plea
agreement or refuse to comply with the plea agreement,” Agyekum
stated that he understood that and that his decision was to
comply with the plea agreement.
After receiving testimony and finding that there was a
sufficient factual basis for the guilty plea, the court
explained to Agyekum the various consequences of his guilty
plea. With respect to the plea agreement’s forfeiture
provision, Agyekum again acknowledged that he was agreeing to
forfeit more than $2.3 million, a Lexus automobile, and his
residence and that, if he had chosen not to agree to the
forfeiture, “the Government would have [had] to prove to the
Court that [his] criminal activity was substantially involved in
[his] generating or obtaining the [assets].” At the conclusion
of the hearing, the district court accepted the guilty plea,
finding that Agyekum understood the rights he was giving up by
entering a guilty plea and that his plea was voluntary. The
following day, the court entered a preliminary forfeiture order
consistent with the plea agreement.
10
In preparation for sentencing, a probation officer prepared
a presentence report, which concluded that Agyekum had a base
offense level of 20, pursuant to U.S.S.G. § 2S1.3. The report
concluded further that the base offense level should be
increased by: two levels pursuant to § 2S1.3(b)(1)(A) because
Agyekum “knew or believed that the funds were proceeds of
unlawful activity”; two levels pursuant to § 2S1.3(b)(2) because
Agyekum “committed the offense as part of a pattern of unlawful
activity involving more than $100,000 in a 12-month period”; two
levels pursuant to § 3B1.1(c) on the ground that Agyekum “was an
organizer, leader, manager, or supervisor in . . . criminal
activity”; and two levels pursuant to § 3B1.3 for “abus[ing] a
position of public or private trust . . . in a manner that
significantly facilitated the commission or concealment of the
offense.” With respect to the last two enhancements, the
probation officer relied on Agyekum’s conduct in the drug
distribution conspiracy. When the probation officer reduced the
offense level by three levels for Agyekum’s acceptance of
responsibility and applied the resulting offense level to a
criminal history category of I, Agyekum’s recommended advisory
guideline range became 57 to 71 months’ imprisonment.
At the sentencing hearing, Agyekum objected to the
enhancements based on his leadership role and his abuse of a
position of trust. He argued that “[t]he offensive conduct that
11
he pled guilty to was the structuring, and the evidence that was
presented today shows that he . . . didn’t oversee or supervise
anyone to make these deposits, and he certainly didn’t supervise
anyone trying to defraud the bank to avoid reporting.” He
similarly argued that “with the crime of structuring, he was
actually depositing h[is] and his wife’s money[,] [s]o there was
no abuse of trust from a third party.” After considering the
presentence report, Agyekum’s objections to it, and the
testimony of three witnesses, the district court concluded that
“[t]he relevant conduct here includes the unlawful criminal
activity that underlies the structuring,” finding that Agyekum
was part of “an illegal drug distribution conspiracy . . . and
that’s why he had the money that he then structured to try to
hide.” The court found further that it was “clear that
[Agyekum] was a manager or supervisor” in the conspiracy because
“he ran the pharmacy.” The court also overruled Agyekum’s
objection to the abuse of a position of trust enhancement,
reasoning that he had “utilized the limited authority of a
pharmacy and of a pharmacist . . . to order huge quantities of
controlled substances that he knew he was going to turn around
and sell as part of this illegal distribution scheme.” After
accepting the presentence report’s recommended Guidelines range
of 57 to 71 months’ imprisonment, the district court sentenced
12
Agyekum to 64 months’ imprisonment, followed by a three-year
term of supervised release.
The next day, the court also entered a final forfeiture
order, ordering forfeiture to the United States of roughly $2.3
million and the Lexus station wagon, but dismissing the
preliminary order’s forfeiture of Agyekum’s residence inasmuch
as the residence had been “sold by the lien holder at a public
auction.”
From the final judgment, Agyekum filed this appeal.
II
Agyekum contends first that the district court erred in
calculating his sentencing range when it imposed two sentencing
enhancements -- namely, a two-level enhancement for his
leadership role, as provided in U.S.S.G. § 3B1.1(c), and a two-
level enhancement for his abuse of a position of trust, as
provided in U.S.S.G. § 3B1.3. He argues that because he pleaded
guilty only to two structuring offenses -- which simply involved
his individual conduct as a bank customer -- he could not be
imputed with a leadership role or abusing a position of trust.
Moreover, he argues that his drug dealing activity, on which the
district court relied to impose the enhancements, was not
relevant conduct under U.S.S.G. § 1B1.3, for which he could be
13
held accountable when being sentenced for his structuring
violations.
The government contends that “[t]he district court properly
found that defendant’s illegal drug distribution conspiracy was
properly treatable as relevant conduct for his offense of
conviction when he was structuring the proceeds of his drug
dealing to hide the source and nature of his cash.” It argues,
accordingly, that the enhancements were supported by his role in
the drug distribution activity and were properly applied.
To begin, we note that the overarching design of the
Sentencing Guidelines is aimed at sentencing defendants in
substantial part for “the actual conduct in which the defendant
engaged regardless of the charges for which he was indicted or
convicted.” U.S.S.G. § 1A1.4(a). “Thus, despite the limited
scope of conduct for which the defendant was convicted, he may
nonetheless be sentenced more broadly for relevant conduct.”
United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014)
(emphasis added); see also U.S.S.G. § 1B1.3(a) (defining
“relevant conduct” for purposes of sentencing accountability and
recognizing that such accountability is broader than the
defendant’s specific criminal liability);
id. Ch. 3, pt. B
introductory cmt. (noting that the role in the offense
adjustments are based on “all conduct within the scope of §
14
1B1.3 . . . and not solely on the basis of elements and acts
cited in the count of conviction”).
As pertinent here, U.S.S.G. § 1B1.3 defines relevant
conduct to include “all acts and omissions committed . . . by
the defendant . . . that occurred during the commission of the
offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility
for that offense.” U.S.S.G. § 1B1.3(a)(1)(A) (emphasis added).
The operative term “during,” as relevant here, provides the link
between relevant conduct and the conduct constituting the crime
of conviction. But necessarily, when defining “relevant
conduct,” the term “during” conveys a linkage that is more than
a mere temporal overlap; it also conveys a qualitative overlap
such that the conduct must be related or connected to the crime
of conviction. See United States v. Wernick, 691 F.3d 108, 115
(2d Cir. 2012) (holding that “[o]ne criminal act does not become
‘relevant’ to a second act under [§ 1B1.3(a)(1)(A)] by the bare
fact of temporal overlap” and that there must also be “proof of
a connection between the acts”).
In this case, Agyekum argues that the two structuring
offenses to which he pleaded guilty occurred on three discrete
dates -- April 25, June 5, and June 6 -- and that he did not
engage in drug activity “during the commission of” those charged
offenses. This argument, however, overlooks the nature and
15
context of his drug distribution activity and the role that it
played in his structuring conduct.
It is true that the offenses of conviction were discrete
structuring acts committed on April 5, June 5, and June 6, 2014.
But those acts were also temporally and qualitatively linked to
Agyekum’s drug distribution activity. The evidence presented at
sentencing supported the indictment’s charge that Agyekum
engaged in a drug distribution conspiracy that had begun by
August 2013 and that concluded in August 2014, a year that
included the dates of his structuring activity and numerous
transactions involving hundreds of thousands of units of
oxycodone and millions of dollars in cash. While the evidence
does not reveal any drug transactions on the specific dates in
which he engaged in structuring, the ongoing conspiratorial
activity was broader than the individual drug transactions.
During the entire year of the conspiracy, Agyekum was ordering
oxycodone units from the drug manufacturer’s distributor and
then providing them illegally to customers. At the same time
and on a continuous basis, Agyekum was also storing the
oxycodone and illicitly obtained cash in the pharmacy and
engaging in ongoing deception by altering records and failing to
comply with reporting requirements of the West Virginia Board of
Pharmacy. And perhaps most importantly, Agyekum’s ongoing drug
distribution activity produced the illicit cash that Agyekum
16
deposited in banks in a manner designed to conceal his overall
illegal activity. Specifically, by evading reporting
requirements at the banks, in violation of the structuring law,
Agyekum concealed his illicit drug activity from law enforcement
investigators. In light of this evidence, we have little
difficulty in affirming the district court’s conclusion that
Agyekum’s ongoing drug dealing activity was conduct engaged in
during his structuring offenses, making it relevant conduct
under § 1B1.3(a)(1)(A).
The question remains whether this relevant conduct showed
that Agyekum was in a leadership role and abused a position of
trust so as to support the two enhancements applied by the
district court.
Section 3B1.1(c) provides for a two-level enhancement for a
defendant’s leadership role “[i]f the defendant was an
organizer, leader, manager, or supervisor” in a relatively small
criminal enterprise. The commentary identifies a number of
factors that indicate such a leadership role, including:
the [defendant’s] exercise of decision making
authority, the nature of [the defendant’s]
participation in the commission of the offense, the
recruitment of accomplices, the claimed right to a
larger share of the fruits of the crime, the degree of
participation in planning or organizing the offense,
the nature and scope of the illegal activity, and the
degree of control and authority exercised over others.
17
U.S.S.G. § 3B1.1 cmt. n.4. The district court applied these
factors and found it “clear that [Agyekum] was a manager or
supervisor” in the illegal drug distribution conspiracy, citing
his role in running the pharmacy and directing: (1) that the
pharmacy would fill out-of-state prescriptions; (2) that the
pharmacy would only accept cash for filling oxycodone
prescriptions; (3) that the pharmacy charged different prices
depending on the risk involved in the transaction; and (4) that
those seeking to fill suspicious oxycodone prescriptions were
also required to submit prescriptions for non-controlled
substances. The court found further that Agyekum “handled all
the money[,] . . . controll[ing] all the [bank] accounts in
every way.” In sum, the district court found that “while there
was a pharmacist [at the pharmacy] and she technically filled
the prescriptions,” the evidence was that Agyekum actually “ran
the business” and directed her activities and the activities of
the pharmacy. These factual findings, which are supported by
the record, justify the application of the leadership-role
enhancement.
As to the enhancement for the abuse of a position of trust,
the record likewise supports the district court’s application of
the enhancement. Section 3B1.3 provides for a two-level
enhancement if “the defendant abused a position of public or
private trust . . . in a manner that significantly facilitated
18
the commission or concealment of the offense.” Such positions
are “characterized by professional or managerial discretion
(i.e., substantial discretionary judgment that is ordinarily
given considerable deference.)” U.S.S.G. § 3B1.3 cmt. n.1.
This enhancement therefore may be applied if a defendant abuses
the substantial discretion given him as a professional or
manager in order to commit or conceal the offense. The “central
purpose” of the enhancement “is to penalize[] defendants who
take advantage of a position that provides them with the freedom
to commit a difficult-to-detect wrong.” United States v. Brack,
651 F.3d 388, 393 (4th Cir. 2011) (alteration in original)
(internal quotation marks and citation omitted). Thus, for
there to be an abuse of trust, “[t]here must be a trust
relationship between [the defendant] and his victim,” United
States v. Caplinger,
339 F.3d 226, 236 (4th Cir. 2003) (second
alteration in original) (quoting United States v. Moore,
29 F.3d
175, 180 (4th Cir. 1994)), which the defendant abuses by
“tak[ing] advantage of [it] to perpetrate or conceal the
offense,”
id. at 237 (quoting United States v. Koehn,
74 F.3d
199, 201 (10th Cir. 1996)).
Here, Agyekum was both a professional and a manager who
abused the considerable discretion inherent in these positions.
Specifically, he was a licensed intern in a pharmacy in West
Virginia and, at the same time, functioned as the CEO of A+ Care
19
Pharmacy, with full control of it. Inherent in these positions
was the professional and managerial discretion with which he
designed and implemented the way the pharmacy functioned vis-à-
vis the oxycodone distributor from whom A+ Care Pharmacy
purchased oxycodone; the State of West Virginia Board of
Pharmacy, to whom A+ Pharmacy had ongoing reporting
requirements; employees, including his wife as the licensed
pharmacist; the pharmacy’s banks; the pharmacy’s patients and
customers; and the public at large. In some of these
relationships, but surely not all, Agyekum’s role amounted to a
position of trust as used in § 3B1.3 in that it involved
“substantial discretionary judgment that is ordinarily given
considerable deference” and was “subject to significantly less
supervision than employees whose responsibilities are primarily
non-discretionary in nature.” U.S.S.G. § 3B1.3 cmt. n.1. And
in some of these relationships, Agyekum used that discretion to
commit or conceal his illegal activities. For instance, rather
than purchasing oxycodone from his distributor for dispensation
to patients with prescriptions to serve legitimate purposes, as
the distributor assumed he was doing, he purchased oxycodone to
supply drug dealers illegally and without prescriptions; and
rather than reporting filled prescriptions to the West Virginia
Board of Pharmacy as required, he altered computer records to
avoid proper reporting and to conceal the extent of his illegal
20
activities. In this manner, Agyekum abused his positions as a
licensed intern in a pharmacy and as the functioning CEO with
complete control of A+ Care Pharmacy by taking advantage of his
role in the relationships with his distributor and the West
Virginia Board of Pharmacy. See Caplinger, 339 F.3d at 237.
Moreover, Agyekum’s conduct corrupted many of his other
professional relationships, including his relationship with his
wife in her capacity as an employee and the licensed pharmacist
at the pharmacy and his relationship with the pharmacy’s
legitimate customers, whose purchases he used to shield his
illegal conduct. We need not, however, rely on the abuse of
these or any other relationships because, at a minimum,
Agyekum’s clear abuse of his positions of trust with the
distributor and the West Virginia Board of Pharmacy justified
the district court’s application of the two-level enhancement.
III
Agyekum also contends that “[t]he district court plainly
erred by failing to ensure that [his] waiver of rights related
to forfeiture was made knowingly and intelligently by not
inquiring as to whether Agyekum was aware of the myriad of
procedur[al] rights and protections which he was waiving.”
The government contends that the record simply does not
support Agyekum’s position and that, in any event, Agyekum has
21
failed to show that but for the alleged error he would have not
gone through with his guilty plea.
Because Agyekum did not preserve this issue below, our
review is for “plain error that affects [his] substantial
rights.” Fed. R. Crim. P. 52(b).
Based on our review of the record, we conclude that the
district court fully informed Agyekum of the terms of the plea
agreement and its provision for waiver of any challenge to his
agreement to forfeit assets. The plea agreement itself sets
forth Agyekum’s agreement “that the United States could
establish, by a preponderance of the evidence, a criminal and/or
civil forfeiture proceeding [against him] . . . arising out of
his involvement in a money laundering scheme” and “his
involvement in . . . a conspiracy to distribute quantities of
oxycodone . . . which generated gross proceeds of at least
$2,500,000.” The agreement makes clear that Agyekum “consents
to, and otherwise agrees not to contest,” such a proceeding.
And it states that Agyekum “agrees to waive all constitutional
and statutory challenges in any manner (including direct appeal,
habeas corpus, or any other means) to any forfeiture carried out
in accordance with this Plea Agreement.”
When Agyekum first appeared before the district court to
plead guilty pursuant to the plea agreement, his attorney
summarized the plea agreement in open court, after which the
22
court asked Agyekum, “[D]o you understand what this agreement
does and what it requires of you?” Agyekum responded, “Yes,
sir.” When the court asked Agyekum whether he reviewed each
paragraph of the plea agreement with his attorney, Agyekum said,
“Yes,” but added that he “disagree[d] with” the agreement’s
forfeiture provision because “the Government [was] trying to
take everything away from me.” The court concluded the hearing
because Agyekum had not agreed to all of the plea agreement’s
terms. Nonetheless, these facts indicate that Agyekum fully
understood the proposed forfeiture provision, although he was
troubled by its scope.
A week later, however, Agyekum again appeared before the
court after discussing all of his options with his lawyer and
stated that he was prepared to accept the plea agreement as
written. When asked again whether he went over the plea
agreement paragraph by paragraph with his attorney, Agyekum said
that he had and that he was accepting the agreement as written.
When the court pressed Agyekum further, Agyekum explained that
he was agreeing because he had “no choice.” The court then
stated, “Well, your choice would be to either comply with the
plea agreement or refuse to comply with the plea agreement. Do
you understand that?” And Agyekum said, “Yes, sir,” adding that
his decision was “to comply with the plea agreement.”
23
Against these facts, Agyekum simply cannot claim that his
waiver was not knowingly and intelligently given.
In any event, Agyekum has also failed to establish that his
substantial rights were affected, as necessary for him to
succeed under plain error review. While the record does reveal
that Agyekum was unhappy with the forfeiture provision, he
ultimately decided to accept it as the price of receiving the
government’s agreement to dismiss 53 counts of the indictment.
There is no indication that Agyekum would have made a different
decision with respect to his plea had the district court
provided some different explanation of the forfeiture provision.
For the foregoing reasons, we affirm Agyekum’s conviction
and sentence.
AFFIRMED
24
WYNN, Circuit Judge, dissenting in part:
I agree with the majority opinion that Kofi Agyekum’s plea
was knowing and voluntarily. I also agree that the district
court correctly concluded that Kofi Agyekum’s activities related
to the drug distribution conspiracy constituted “relevant
conduct” for purposes of his sentencing, and that, relying on
that conduct, the district court properly imposed a sentencing
enhancement related to Kofi Agyekum’s leadership role in the
drug conspiracy. But I disagree that the district court
properly enhanced Kofi Agyekum’s sentence on the basis that he
abused a position of trust. To the contrary, Kofi Agyekum did
not have the trust relationship necessary to support the
imposition of an abuse of a position of trust enhancement with
either the West Virginia Board of Pharmacy or the distributor
from which A+ Care Pharmacy purchased oxycodone. Therefore, I
respectfully dissent as to Part II of the majority opinion.
As the majority opinion correctly states, a two-level
enhancement for abuse of a position of trust is proper if “the
defendant abused a position of public or private trust,”
U.S.S.G. § 3B1.3--that is, “a position . . . characterized by
professional or managerial discretion,” id. § 3B1.3 cmt. n.1.
The defendant’s abuse of a position of trust must be effected
“in a manner that significantly facilitated the commission of
the offense.”
Id. § 3B1.3. Moreover, “[w]hether a defendant
25
held a position of trust must be assessed from the perspective
of the victim,” United States v. Abdelshafi, 592 F.3d 602, 611
(4th Cir.), cert. denied,
562 U.S. 874 (2010), and “[t]here must
be a trust relationship between [the defendant] and his victim
for the enhancement to apply,” United States v. Moore,
29 F.3d
175, 180 (4th Cir. 1994) (alteration in original) (emphasis
added) (internal quotation marks omitted).
“[W]e generally weigh three factors to determine whether a
particular defendant abused a position of trust, including (1)
whether the defendant had special duties or special access to
information not available to other employees, (2) the extent of
the discretion the defendant possessed, and (3) whether the
defendant’s actions indicate that he is more culpable than
others in similar positions who engage in criminal acts.”
Abdelshafi, 592 F.3d at 611. Under this test, establishing a
trust relationship “requires more than a mere showing that the
victim had confidence in the defendant. Something more akin to
a fiduciary function is required.” United States v. Ebersole,
411 F.3d 517, 536 (4th Cir. 2005) (quoting United States v.
Caplinger,
339 F.3d 226, 237 (4th Cir. 2003)) (internal
quotation marks omitted).
Here, the majority opinion identifies the West Virginia
Board of Pharmacy and the pharmacy’s distributor as the victims
of Kofi Agyekum’s abuse of a position of trust. Ante, at 21.
26
The majority opinion, however, fails to establish that a trust
relationship existed between Kofi Agyekum and either the Board
of Pharmacy or the distributor. Regarding the Board of
Pharmacy, as a “Pharmacy Intern,” Kofi Agyekum was “licensed to
engage in the practice of pharmacist care while under the
supervision of a pharmacist.” W. Va. Code § 30-5-4 (emphasis
added). Accordingly, Kofi Agyekum’s state licensure expressly
deprived Kofi Agyekum of managerial discretion and placed
supervisory and discretionary authority in his pharmacist
supervisor--here, Patricia Agyekum. Indeed, West Virginia law
renders Kofi Agyekum’s authority with regard to the dispensing
of pharmaceuticals entirely derivative of Patricia Agyekum, as
Kofi Agyekum’s pharmacist supervisor. See W. Va. Code § 30-5-
4(51) (“‘Pharmacist-in-charge’ means a pharmacist currently
licensed in this state who accepts responsibility for . . . the
distribution of drugs and who is personally in full charge of
the pharmacy and pharmacy personnel.”).
To that end, West Virginia law entrusts pharmacists-in-
charge, like Patricia Agyekum--not Pharmacy Interns, like Kofi
Agyekum--with the responsibility of complying with state and
federal laws and preventing the diversion of prescription
pharmaceuticals. See, e.g., W. Va. Code § 30-5-4(51) (providing
that the pharmacist-in-charge is responsible “for the operation
of a pharmacy in conformance with all laws and legislative
27
rules . . . and the distribution of drugs”); W. Va. Code § 30-5-
23(b) (“The pharmacist-in-charge is responsible for the
pharmacy’s compliance with state and federal pharmacy laws and
regulations and for maintaining records and inventory.”); W. Va.
Code R. § 15-1-20(3.2.2) (“The pharmacist-in-charge shall notify
the pharmacy permit holder of potential violations of any
statute, rule or court order existing within the pharmacy. If
appropriate action has not been taken within a reasonable amount
of time the pharmacist-in-charge shall reduce to writing the
above and submit to the pharmacy permit holder with a copy to
the Board.”); W. Va. Code R. § 15-1-20(3.2.8) (providing that
the pharmacist-in-charge is responsible for “[m]aking or filing
any reports required by state or federal laws, rules, and
regulations”). The Board of Pharmacy, therefore, entrusted
Patricia Agyekum--as pharmacist-in-charge--with special duties
and responsibilities, not Kofi Agyekum--a Pharmacy Intern under
her supervision.
Accordingly, a trust relationship existed between the Board
of Pharmacy and Patricia Agyekum, as the pharmacist-in-charge
and Kofi Agyekum’s supervisor, not between the Board of Pharmacy
and Kofi Agyekum. Patricia Agyekum may have abused the trust
the Board of Pharmacy placed in her by allowing Kofi Agyekum to
illegally dispense oxycodone and by failing to report the loss
of oxycodone from A+ Care Pharmacy’s inventory. However,
28
Patricia Agyekum’s abuse of her relationship of trust with the
Board of Pharmacy does not serve as a basis to enhance Kofi
Agyekum’s sentence. Moore, 29 F.3d at 179 (holding that a
defendant’s sentence cannot be enhanced on grounds of a co-
conspirator’s abuse of a position of trust).
There is also no evidence of a trust relationship between
Kofi Agyekum and the distributor from which A+ Care Pharmacy
purchased oxycodone. Because something “akin to a fiduciary
function” is required to create a trust relationship, Ebersole,
411 F.3d at 536, “an ordinary commercial relationship between
the perpetrator and victim is insufficient to support the abuse
of trust enhancement,” United States v. Akinkoye,
185 F.3d 192,
204 (4th Cir. 1999) (citing
Moore, 29 F.3d at 178); see also,
e.g., United States v. Septon,
557 F.3d 934, 937 (8th Cir. 2009)
(finding that “an arms-length commercial relationship will
ordinarily not suffice for the [abuse-of-trust] enhancement to
apply”). Accordingly, Kofi Agyekum’s purchase of oxycodone on
A+ Care Pharmacy’s behalf cannot, by itself, create a trust
relationship between Kofi Agyekum and the distributor or,
accordingly, amount to an abuse of a position of trust.
The district court rightly noted that Kofi Agyekum could
purchase oxycodone and other controlled substances from the
distributor only through use of Patricia Agyekum’s Drug
Enforcement Administration Registration Number (“DEA Number”).
29
But this amounts to nothing more than evidence that the
distributor placed trust in Patricia Agyekum--the holder of the
DEA Number and the individual authorized to dispense controlled
substances--not in Kofi Agyekum. Again, that Patricia Agyekum
may have abused the distributor’s trust by allowing Kofi Agyekum
to use her pharmacist license and DEA Number to order oxycodone
does not support enhancing Kofi Agyekum’s sentence. Moore, 29
F.3d at 179. Therefore, Kofi Agyekum’s use of Patricia
Agyekum’s DEA Number to place orders with the distributor does
not establish a trust relationship between Kofi Agyekum and the
distributor and, thus, cannot support a sentencing enhancement
based upon abuse of a position of trust.
In sum, a trust relationship did not exist between Kofi
Agyekum and the Board of Pharmacy or between Kofi Agyekum and
the distributor. The district court, therefore, erred in
imposing the enhancement for abuse of a position of trust.
Accordingly, I respectfully dissent.
30
