US v. Kofi Agyekum


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

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Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 1 of 30 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. Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 2 of 30 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 Appeal: 15-4479 Doc: 33 school but Filed: 01/24/2017 had failed the Pg: 3 of 30 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, 3 Appeal: 15-4479 Doc: 33 Agyekum Filed: 01/24/2017 charged the CI Pg: 4 of 30 $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 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 5 of 30 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. 5 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 6 of 30 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 6 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 7 of 30 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 7 Appeal: 15-4479 Doc: 33 conspiracy Filed: 01/24/2017 from August 2013 Pg: 8 of 30 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 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 9 of 30 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 9 Appeal: 15-4479 Doc: 33 agreement” agreement. Filed: 01/24/2017 and that he wanted Pg: 10 of 30 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. 10 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 11 of 30 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 11 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 12 of 30 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 12 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 13 of 30 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 13 Appeal: 15-4479 held Doc: 33 Filed: 01/24/2017 accountable when being Pg: 14 of 30 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 § 14 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 15 of 30 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 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 16 of 30 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 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 17 of 30 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. 17 of Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 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 18 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 19 of 30 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 19 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 20 of 30 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 Appeal: 15-4479 Doc: 33 activities. Filed: 01/24/2017 Pg: 21 of 30 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 21 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 22 of 30 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 22 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 23 of 30 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.” 23 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 24 of 30 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 24 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 25 of 30 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 25 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 26 of 30 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. Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 27 of 30 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 Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 28 of 30 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, Appeal: 15-4479 Doc: 33 Filed: 01/24/2017 Pg: 29 of 30 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 Appeal: 15-4479 But 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.

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