Wake Forest Law Review
20Feb

Fourth Circuit Affirms Sentencing Enhancements for “Relevant Conduct”

Categories: 4th Cir. Blog Criminal Cases
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By John Van Swearingen

On January 24, 2017, the Fourth Circuit issued a published opinion in the criminal case United States v. Agyekum. In the United States District Court for the Southern District of West Virginia, Kofi Agyekum (“Appellant”) plead guilty to two counts of structuring transactions, forfeiting over $2,300,000 in cash assets. Appellant challenged his sentence on two grounds: first, that sentencing enhancements based on involvement in a drug conspiracy were not “relevant conduct” with respect to his structuring convictions, and second, that sentencing enhancements based on his role as a pharmacist did not constitute “relevant conduct” with respect to the same convictions. Additionally, Appellant contended that the district court did not adequately ensure that he understood the procedural protections waived in his plea agreement. The Fourth Circuit affirmed Appellant’s sentence, holding that the Appellant’s involvement in a drug conspiracy and role as a pharmacist were within the scope of “relevant conduct.” Additionally, Appellant adequately understood the waivers of rights involved with his plea agreement.

Facts and Procedural History

In October, 2012, Appellant and his wife opened A+ Care Pharmacy in Barboursville, West Virginia. Appellant had total control over the operations of the business. Appellant’s wife was the licensed pharmacist, but she operated solely under Appellant’s control.

A confidential informant (“CI”) involved in a 2014 oxycodone trafficking ring investigation notified federal investigators that he had been filling prescriptions at A+ Care Pharmacy since November 2012. The CI made several controlled buys under supervision of the investigating agents in which the Appellant charged the CI an abnormally high price to fill out-of-state oxycodone prescriptions, doctored receipts to avoid leaving a paper trail, and discussed permitting the purchase of oxycodone without a prescription.

The investigation uncovered that Appellant was regularly filling ten to eighteen prescriptions a week for an organized drug ring headquartered in Kentucky with operations throughout the southeast United States. In spring of 2014, Appellant began selling oxycodone to the head of the organization without a prescription for around $15 per pill, and on one occasion, accepted a vehicle as payment. A+ Care Pharmacy was the third largest distributor of oxycodone in the state, and the drug comprised 70% of its business.

During this time, Appellant opened numerous bank accounts with several different financial institutions around town. Appellant used multiple accounts to avoid making cash deposits of $10,000 or more, which are subject to federal reporting. From March to August, 2014, Appellant deposited almost $470,000 in accounts at five banks, never depositing more than $10,000 into a single account on a single day.

In August, 2014, investigating agents executed a search warrant at A+ Care Pharmacy, seizing 51,000 pills of oxycodone, $68,000 in cash hidden in the pharmacy’s office, over $440,000 in cash stored in two safe deposit boxes, and 20 bank accounts owned by Appellant. Over $2,300,000 in assets were seized. Appellant was arrested.

Appellant was indicted with conspiracy to illegitimately distribute oxycodone, aiding and abetting the illegitimate distribution of oxycodone, forty counts of money laundering, and eleven counts of structuring cash transactions to avoid reporting.

After six months in jail, Appellant agreed to plead guilty to two counts of structuring transactions, forfeit over $2,300,000 in assets, and waive the procedural rights to any future challenges to the forfeiture. Appellant initially refused the plea agreement because of the forfeiture term, but eventually acknowledged to the district court that he understood the forfeiture term and accompanying waiver and accepted the plea deal.

Appellant’s sentencing report included multiple enhancements, including two to which Appellant objected: (1) enhancement based on Appellant’s role as a “leader” or “manager” within the criminal drug conspiracy pursuant to U.S.S.G. § 3B1.1(c), and (2) enhancement based on Appellant’s abuse of a position of trust pursuant to U.S.S.G. § 3B1.3. Appellant’s objections centered on the assertion that neither the Appellant’s participation in the drug conspiracy nor his role managing a pharmacy constituted “relevant conduct” with respect to his transaction structuring convictions as outlined in U.S.S.G. § 1B1.3. Additionally, Appellant claims that the district court did not properly ensure that he understood the waiver of procedural protections involved in his plea deal.

A Leadership Position In A Conspiracy Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Conspiracy

Appellant’s argument centers on the belief that enhancements for “relevant conduct” are limited strictly to the behaviors associated with the convictions. Here, those convictions were for structuring bank transactions. Therefore, Appellant argues, the only applicable enhancements must arise from his conduct as a bank customer.

U.S.S.G. § 1B1.3(a) defines “relevant conduct” in the scope of sentencing more broadly than the conduct considered for criminal liability. See United States v. McVey, 752 F.3d 606, 610 (4th Cir. 2014). “Relevant conduct,” therefore, can include preparatory conduct, conduct to avoid detection, and other conduct related to the commission of the charged offense.

But for the illicit nature of Appellant’s participation in a drug trafficking conspiracy, Appellant would not have been receiving large cash payments on a regular basis. Additionally, Appellant only structured the transactions to avoid the reporting requirements that would have alerted federal authorities to the cash-intensive nature of his dealings. Therefore, the court noted, Appellant’s participation in the drug conspiracy was “relevant conduct” for the purpose of sentence enhancement. Thus, if Appellant was in a leadership position in the conspiracy, the sentence enhancement was appropriate.

Appellant was in sole operational control of A+ Care Pharmacy, and directed the pharmacy’s operations regarding the filling of out-of-state prescriptions, mandated the acceptance of cash only for oxycodone, set the price for oxycodone transactions based on risk, and advised members of the conspiracy to also acquire prescriptions for non-narcotic drugs in order to reduce suspicion. The district court, therefore, was proper in determining Appellant had a leadership role in the drug conspiracy, and the sentence enhancement was therefore appropriate.

Abuse Of The Position Of Pharmacy Manager Was “Relevant Conduct” With Respect To Structuring Cash Deposits Arising Out Of That Position

Appellant also challenges the sentence enhancement based on the abuse of his position managing a pharmacy – a position of public trust – because his role was not “relevant conduct” with respect to the structured transactions.

Having determined that the pharmaceutical operations were within the scope of “relevant conduct,” the court then considered whether Appellant was abusing a position of public trust. The purpose of the enhancement is to punish those “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). Additionally, the defendant must have some sort of relationship to his victim that involves trust. United States v. Caplinger, 339 F.3d 226, 236 (4th Cir. 2003).

Appellant exploited his position by purchasing oxycodone from a legal distributor at a level that exceeded his actual lawful uses. Additionally, Appellant took advantage of his position as both a husband and a manager to force his wife to fill prescriptions for a drug trafficking ring. Appellant doctored records to conceal his activities from the West Virginia Board of Pharmacy. Thus, Appellant was using his unique position managing a pharmacy in order to facilitate the drug trafficking operations – “relevant conduct” underlying the structured transactions.

Appellant Fully Understood His Waiver Of Rights With Respect To Forfeiture

Appellant contended that the district court failed to ensure that he fully understood the rights he waived with respect to his asset forfeiture. However, the record on appeal included several exchanges in open court wherein Appellant (1) claimed multiple times to understand the terms of the plea agreement, (2) contested the plea agreement because he did not agree to the scope of the forfeiture term, and (3) subsequently agreed to the forfeiture term and plea agreement after discussing his situation with his lawyer. Therefore, Appellant’s assertion was wholly unsupported by the record.

Disposition

The Fourth Circuit affirmed both challenged sentencing enhancements and denied Appellant’s challenge to his waiver of rights regarding the forfeiture term of the plea agreement.

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13Feb

Acceptance of Mens Rea Is Necessary For Acceptance-of-Responsibility Reduction

Categories: 4th Cir. Blog
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By: Michael Klotz

Today, in the published opinion of United States v. Burns, the Fourth Circuit affirmed the decision of Judge Catherine Eagles of the District Court for the Middle District of North Carolina. A downward reduction in the sentence of a criminal defendant is disallowed when the defendant disputes the mens rea for the underlying crime, and thus fails to accept responsibility for relevant conduct.

Facts

On February 1, 2013, Mr. Burns was involved in an altercation with Eric Poole at a convenience store. Following the incident, Mr. Burns went to Mr. Poole’s house with a loaded gun, asked to find him, and fired a shot into the ceiling before leaving.

The next day, on February 2, 2013, Mr. Burns told his girlfriend, Brittney Wilson, that he intended to kill Mr. Poole. Later that day, Mr. Burns saw Mr. Poole in the driver’s seat of a parked car. Mr. Burns initially approached the car unarmed, but then returned to his car, told Ms. Wilson “I’m going to shoot him,” and retrieved his gun. Mr. Burns then told Mr. Poole “Motherfucker, I’m going to kill you.” After the occupant of the passenger’s seat exited the car, Mr. Burns fired a shot into the vehicle. The bullet did not hit Mr. Poole, who then exited the vehicle and fled on foot. Mr. Burns initially followed Mr. Poole in his vehicle, and fired a bullet into the air, but later halted his pursuit.

Mr. Burns was later arrested, on February 9, 2013, and charged as a felon in possession of a firearm. Mr. Burns pleaded guilty in a written plea agreement. The plea agreement stated that if the district court found Mr. Burns eligible for a two-level sentence reduction due to acceptance of responsibility for his conduct, and Mr. Burns’ total offense level was 16 or higher prior to that reduction, that the United States would request an additional one-level sentence reduction for timely assisting authorities with the investigation.

At His Sentencing Mr. Burns Denied That He Intended to Kill Mr. Poole, And Was Not Given a Sentence Reduction

At his sentencing, Mr. Burns stated that he had not intended to kill Mr. Poole when he fired a bullet into his car, and he disputed the testimony of Ms. Wilson. Mr. Burns argued that the downward trajectory of his shot demonstrated that he had not intended to shoot Mr. Poole, but rather to “give a warning shot.”

As a result, Mr. Burns contended that the sentencing guidelines for aggravated assault rather than for attempted murder should be cross-referenced in imposing his sentence. Thus, he claimed that the relevant sentencing guideline should be 70 to 87 months imprisonment rather than 92 to 115 months imprisonment.

Based upon these contentions, the government argued that Mr. Burns had refused to accept “relevant conduct,” and thus he was ineligible for the downward variance in his sentence due to acceptance of responsibility.

The District Court agreed. The court observed that there was strong evidence supporting attempted second degree murder, and in denying that he intended to kill Mr. Poole Mr. Burns had falsely denied relevant conduct. As a result, Mr. Burns was found to be ineligible for a sentence reduction. Based upon Mr. Burns’ criminal history, the appropriate sentencing range was 120 to 150 months imprisonment. The court imposed a sentence of 120 months, the statutory maximum under 18 U.S.C. § 924(a)(2). Mr. Poole subsequently filed the present appeal.

Does the Mens Rea of a Defendant Constitute “Relevant Conduct”?

The legal question on appeal was whether, in disputing that he had the mental state necessary for the uncharged crime of attempted murder, Mr. Burns rendered himself ineligible for a downward sentence reduction due to his refusal to accept responsibility for his crime. Pursuant to U.S.S.G. § 3E1.1(a), a defendant is only eligible for a sentence reduction when he “clearly demonstrates acceptance of responsibility for his offense.” An appropriate consideration in determining whether a defendant is entitled to a sentence reduction is whether he has “truthfully admit[ed] or not falsely den[ied] any additional relevant conduct for which the defendant is accountable.” Thus, the question before the court was whether a criminal defendant’s mental state during the commission of a crime constitutes “relevant conduct” at the time of the offense. If so, Mr. Burns’ claim that he did not intend to shoot Mr. Poole when he fired a bullet into his car would amount to his refusal to accept additional relevant conduct.

The Fourth Circuit Affirms the District Court Decision

The Fourth Circuit, in an opinion authored by Judge Allyson K. Duncan, affirmed the lower court decision that the mental state of a defendant at the time of the crime does constitute “relevant conduct.” The court observed that the sentencing guidelines do not provide a definition of “relevant conduct.” The relevant factors in determining “relevant conduct” include the “acts and omissions committed…by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A). The mental state of a defendant at the time of a crime would arguably not be considered given that it is not a physical act. However, clear precedent in the Fourth Circuit forestalls this conclusion. Attempted crimes (for example, attempted murder or attempted sexual abuse) have been previously cross-referenced under the “acts and omissions” provision, and these crimes contain a mens rea element based on the mental state of the defendant. As a result, the court concluded that when Mr. Burns denied that his “acts and omissions” included shooting toward Mr. Poole with the intent of killing him, he denied relevant conduct and thus became ineligible for a sentence reduction. Based upon the foregoing reasoning, the judgment of the lower court was affirmed.

 

 

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