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.
2

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 
3

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, 
4

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 
5

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.
6

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 
7

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 
8

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] . . . 
9

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 
10

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.
11

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 
12

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 
13

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 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 
14

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 § 
15

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
16

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 
17

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. 
18

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 
19

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 
20

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 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 
21

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 
22

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 
23

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.”
24

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
25

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 
26

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. 
27

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-incharge, 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 
28

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, 
29

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 coconspirator’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”). 
30

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.