US v. Kofi Agyekum

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:14-cr-00197-1. [1000008890]. [15-4479]

Appeal: 15-4479

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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.

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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
Agyekum,

October
opened

Virginia.
a

licensed

2012,
A+

Kofi
Care

Agyekum
Pharmacy

and

his

wife,

Patricia

in

Barboursville,

West

Patricia was the licensed pharmacist, while Kofi was
pharmacist

intern.

Kofi

2

had

completed

pharmacy

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school but

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had

failed

the

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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

telling

agents

that

prescriptions
because

at

the

of

A+

he

as
and

Care

pharmacy

prescriptions.
months

serve

a

confidential

his

fiancée

Pharmacy
was

in

informant

had

started

November

willing

to

2012,

fill

(“CI”),
filling
in

part

out-of-state

The CI indicated that after approximately four

dealing

with

A+

Care

Pharmacy,

Kofi

Agyekum,

who

appeared to be in charge of the pharmacy, told him to have his
physician
addition

start
to

the

DEA’s suspicion.

writing
narcotic

prescriptions
prescriptions

for
to

non-narcotics
avoid

raising

in
the

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,
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Agyekum

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charged

the

CI

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$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.
July

2014,

Ferguson

paid

for

a

number

Between January and
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

“doctor

shoppers.”

for
In

members
March

of
or

4

the
April

organization
2014,

who

Agyekum

were
began

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selling oxycodone to Ferguson without a prescription, usually
charging $1,500 for 100 30-milligram oxycodone pills.

On one

occasion

Nissan

Maxima

in

in

July

2014,

exchange

for

Ferguson
200

gave

oxycodone

Agyekum
pills,

a

2004

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

Agyekum’s banking practices.

agents

also

began

investigating

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.
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In a similar manner, Agyekum opened a savings account at
J.P.

Morgan

Chase

Bank

on

February

24,

2014,

$13,500 in cash into that account the next day.

and

deposited

When a teller

asked for his identification in order to prepare the currency
transaction
asked

report,

about

requirement.

the

Agyekum

was

amounts

reluctant

that

to

triggered

provide
the

it

and

reporting

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
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that he did not accept checks or credit card payments from his
clientele.

After the Fifth Third Bank branch manager then gave

Agyekum

brochure

a

reporting

on

requirements,

structuring
Agyekum

and

opened

currency

two

new

transaction

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

pharmacy’s

on

safe.

top

of

Patricia

51,000
Agyekum

oxycodone
later

led

pills
the

in

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

deposit boxes, for a total of $2,361,109.17.
seized

Agyekum’s

2011

Lexus

station

wagon,

in

two

safe

The agents also
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
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conspiracy

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from

August

2013

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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] . . .
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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

Agreement.”

carried

out

in

accordance

with

this

Plea

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

“disagree[d]”

forfeiture

with

that

provision.

paragraph

because

trying to take everything away from me.”

He

stated

“the

that

Government

he
is

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
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agreement”
agreement.

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and

that

he

wanted

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the

court

to

accept

the

plea

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
sufficient
explained
plea.

receiving
factual
to

With

testimony
basis

Agyekum

the

respect

and

for

the

various

to

finding

the

guilty

that
plea,

consequences
plea

there

of

agreement’s

was

a

the

court

his

guilty

forfeiture

provision, Agyekum again acknowledged that he was agreeing to
forfeit

more

residence

and

than

$2.3

that,

if

million,
he

had

a

Lexus

chosen

automobile,

not

to

agree

and

his

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.
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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

should

further

that

the

base

offense

level

be

increased by:

two levels pursuant to § 2S1.3(b)(1)(A) because

Agyekum

or

“knew

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

probation

respect

to

officer

relied

on

distribution conspiracy.
offense

level

responsibility

the

last

Agyekum’s

two

enhancements,

conduct

in

the

the

drug

When the probation officer reduced the

by

three

levels

and

applied

the

for

Agyekum’s

resulting

acceptance

offense

level

of

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
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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.”
presentence

report,

Agyekum’s

After considering the

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.”

objection

to

the

reasoning

that

he

abuse
had

The
of

a

court

also

position

“utilized

the

of

overruled
trust

limited

Agyekum’s

enhancement,

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

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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 twolevel

enhancement

for

his

abuse

provided in U.S.S.G. § 3B1.3.

of

a

position

of

trust,

as

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

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held

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accountable

when

being

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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

conviction

when

as

he

relevant

was

conduct

structuring

the

for

his

proceeds

offense
of

dealing to hide the source and nature of his cash.”

his

of

drug

It argues,

accordingly, that the enhancements were supported by his role in
the drug distribution activity and were properly applied.
To

begin,

Sentencing

we

note

Guidelines

that

is

the

aimed

overarching

at

design

sentencing

of

the

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
United

be

States

(emphasis

sentenced
v.

added);

McVey,
see

more
752
also

broadly
F.3d

for

606,

U.S.S.G.

relevant

610
§

(4th

conduct.”

Cir.

1B1.3(a)

2014)

(defining

“relevant conduct” for purposes of sentencing accountability and
recognizing

that

such

defendant’s

specific

introductory

cmt.

accountability

criminal

(noting

is

liability);

that

the

broader
id.

role

in

Ch.

than
3,

the

the

pt.

B

offense

adjustments are based on “all conduct within the scope of §

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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,
15

overlooks

the

nature

and

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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.
sentencing

supported

engaged

a

August

in
2013

included

drug
and

the

indictment’s

distribution

that

dates

transactions

the

his

involving

charge

that

conspiracy

that
2014,

a

Agyekum

had

in

concluded

of

The evidence presented at

August

structuring

hundreds

of

activity

thousands

oxycodone and millions of dollars in cash.

begun
year

and
of

by

that

numerous
units

of

While the evidence

does not reveal any drug transactions on the specific dates in
which

he

activity

engaged
was

in

broader

structuring,
than

the

the

ongoing

individual

conspiratorial

drug

transactions.

During the entire year of the conspiracy, Agyekum was ordering
oxycodone

units

from

the

drug

manufacturer’s

then providing them illegally to customers.
and

on

oxycodone

a

continuous
and

basis,

illicitly

Agyekum

obtained

cash

was
in

distributor

and

At the same time
also

storing

the

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
16

illicit

cash

that

Agyekum

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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.
difficulty

In

in

light

affirming

of

the

this

evidence,

district

court’s

we

have

little

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

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.

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of

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U.S.S.G. § 3B1.1 cmt. n.4.

Pg: 18 of 30

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:
pharmacy
pharmacy

would

fill

would

out-of-state

only

accept

(1) that the

prescriptions;

cash

for

(2)

filling

that

the

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

substances.

to

prescriptions

for

non-controlled

The court found further that Agyekum “handled all

the money[,] . . .
every way.”

submit

controll[ing] all the [bank] accounts in

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.
the

record,

These factual findings, which are supported by
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
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the commission or concealment of the offense.”
are

“characterized

(i.e.,
given

substantial
considerable

by

professional

discretionary
deference.)”

or

Such positions

managerial

judgment

that

U.S.S.G.

§

discretion

is

ordinarily

3B1.3

cmt.

n.1.

This enhancement therefore may be applied if a defendant abuses
the

substantial

discretion

given

him

as

a

professional

manager in order to commit or conceal the offense.

or

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.”
651

F.3d

388,

393

(internal

quotation

there

be

to

relationship

an

(4th
marks

abuse

between

Cir.

of

[the

and

2011)

United States v. Brack,
(alteration

citation

trust,

original)

omitted).

“[t]here

defendant]

in

and

Thus,

must

his

be

a

victim,”

for

trust
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

“tak[ing]

(4th

Cir.

advantage

1994)),
of

[it]

which
to

the

defendant

perpetrate

or

abuses

conceal

by
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
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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-àvis

the

oxycodone

purchased

distributor

oxycodone;

Pharmacy,

to

requirements;

the

whom

State

A+

employees,

from
of

Pharmacy
including

whom

A+

Care

Pharmacy

West

Virginia

Board

had

ongoing

reporting

his

wife

as

the

of

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

“substantial

trust

as

used

discretionary

in

§

judgment

3B1.3
that

in

that

is

it

involved

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

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activities.

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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

Virginia Board of Pharmacy.
Moreover,

Agyekum’s

his

distributor

and

the

West

See Caplinger, 339 F.3d at 237.

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

legitimate

and

customers,

illegal conduct.
these

or

Agyekum’s

any

whose

relationship
purchases

he

with
used

the

pharmacy’s

to

shield

his

We need not, however, rely on the abuse of
other

clear

his

relationships

abuse

of

his

because,

positions

of

at

a

minimum,

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

inquiring

as

was
to

made

whether

knowingly
Agyekum

and

was

intelligently

aware

of

the

by

myriad

not
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

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failed to show that but for the alleged error he would have not
gone through with his guilty plea.
Because
review

is

rights.”

Agyekum
for

did

“plain

not

preserve

error

that

this

affects

issue
[his]

below,

our

substantial

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.
forth

Agyekum’s

agreement

The plea agreement itself sets
“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

. . .

$2,500,000.”

which

generated

gross

proceeds

of

at

least

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
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court asked Agyekum, “[D]o you understand what this agreement
does and what it requires of you?”
sir.”

Agyekum responded, “Yes,

When the court asked Agyekum whether he reviewed each

paragraph of the plea agreement with his attorney, Agyekum said,
“Yes,”

but

forfeiture

added

that

provision

he

“disagree[d]

because

take everything away from me.”

“the

with”

Government

the

agreement’s

[was]

trying

to

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.
you understand that?”

Do

And Agyekum said, “Yes, sir,” adding that

his decision was “to comply with the plea agreement.”

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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,

succeed under plain error review.
that

Agyekum

was

unhappy

with

as

necessary

for

him

to

While the record does reveal
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

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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.
not

have

the

trust

To the contrary, Kofi Agyekum did

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

U.S.S.G. § 3B1.3--that

is,

“a

of

public

or

position . . .

private

trust,”

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

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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

defendant’s
others

in

the

defendant

possessed,

indicate

that

positions

who

actions
similar

Abdelshafi, 592 F.3d at 611.

he

and

is

engage

(3)

more
in

whether

culpable

criminal

the
than

acts.”

Under this test, establishing a

trust relationship “requires more than a mere showing that the
victim had confidence in the defendant.
a fiduciary function is required.”

Something more akin to

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.

26

Ante, at 21.

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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

supervision of a pharmacist.”

care

while

under

the

W. Va. Code § 30-5-4 (emphasis

added).

Accordingly, Kofi Agyekum’s state licensure expressly

deprived

Kofi

supervisory

Agyekum

and

of

managerial

discretionary

discretion

authority

supervisor--here, Patricia Agyekum.

in

and

his

placed

pharmacist

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)

a

(“‘Pharmacist-in-charge’

means

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
federal

laws

the

responsibility

and

pharmaceuticals.

preventing

of

the

complying
diversion

with
of

state

and

prescription

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

27

all

laws

and

legislative

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rules . . . and the distribution of drugs”); W. Va. Code § 30-523(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

regulations”).
Patricia

The

by

Board

Agyekum--as

state
of

or

federal

Pharmacy,

laws,

therefore,

pharmacist-in-charge--with

rules,

and

entrusted

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

28

inventory.

However,

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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.

defendant’s

Moore,

sentence

cannot

29
be

F.3d

at

enhanced

179
on

(holding
grounds

that

of

a

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”).
A+

Care

Accordingly, Kofi Agyekum’s purchase of oxycodone on
Pharmacy’s

relationship

behalf

between

Kofi

cannot,
Agyekum

by

itself,

and

the

create

a

trust

distributor

or,

accordingly, amount to an abuse of a position of trust.
The district court rightly noted that Kofi Agyekum could
purchase

oxycodone

distributor

only

and

other

through

controlled

use

of

substances

Patricia

from

Agyekum’s

the
Drug

Enforcement Administration Registration Number (“DEA Number”).

29

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Doc: 33

this

Filed: 01/24/2017

amounts

to

Pg: 30 of 30

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.
F.3d

at

179.

Therefore,

Kofi

Agyekum’s

use

of

Moore, 29
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.

imposing

the

The

enhancement

district
for

court,

abuse

Accordingly, I respectfully dissent.

30

of

therefore,
a

position

erred
of

in

trust.