US v. Kofi Agyekum, No. 15-4479 (4th Cir, filed 1/24/17), Disagreement on Enhancement Based on Abuse of Position of Trust
Mr. Agyekum found himself in a whole bunch of trouble due to his criminal plan to illegally sell oxycodone pills out of his pharmacy in West Virginia. In addition to simply illegally filling fraudulent prescriptions, he also fudged his bank deposits to hide this activity (by making a number of deposits at a level below $10,000 which triggers certain federal notice provisions). Much of this opinion details the specifics of Agyekum’s conduct, and– frankly– his rather amateurish attempts to hide his ill-gotten profits. What’s most interesting here is the sentencing discussion.
Agyekum argued on appeal that the district court erred in calculating his sentenced based on two enhancements– 1) leadership role (USSG 3B1.1(c)) and 2) abuse of a position of trust (USSG 3B1.3).
The overarching design of the 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.” USSG 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). USSG 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.” USSG 1B1.3(a)(1)(A). The Court held “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 (2nd 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”).
Long legal analysis short, the Court found that, even though Agekum only pleaded guilty to the money structuring violations, his illegal drug distribution plan was still “relevant conduct.”
As to the enhancements:
Leadership: The Court agreed with the district court that Agyekum had a leadership role based on these factors: 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. Also, he handed all the money, and controlled the bank accounts. Dude ran the business.
Trust: According to the majority opinion, Agyekum qualified for this enhancement due to his clear abuse of his positions of trust with his drug distributors (by not purchasing drugs to serve legitimate purposes) and the West Virginia Board of Pharmacy (by altering computer records to avoid proper reporting).
Judge Wynn, while agreeing with most of this, disagreed with the district court’s enhancement based on his abuse of a position of trust (and his colleagues’ adoption of it). He argues that a defendant’s abuse of trust must be effected “in a manner that significantly facilitated the commission of the offense.” USSG 3B1.3. Also, “[w]hether a defendant 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). Judge Wynn argues that the majority fails to establish that a trust relationship existed between Appellant and either the Board of Pharmacy or the distributor. Appellant was, in fact, a pharmacy intern since he flunked his pharmacy boards. The pertinent West Virginia statute deprived him of managerial discretion since he was not actually a pharmacist (his wife is a licensed pharmacist). Therefore, the trust relationship existed between the Pharmacy Board and Agyekum’s wife. But also, there was not a trust relationship between Agyekum and his distributors since “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).
An interesting disagreement on the nature of “abuse of trust” for purposes of sentencing enhancements under the Federal Sentencing Guidelines.