United States v. Kofi Agyekum

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

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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,

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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

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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.

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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

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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 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

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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] . . .

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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 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

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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.” 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

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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 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

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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. 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.

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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

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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-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