                                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


                                         2
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,

                                                    3
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

                                                  4
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.

                                                 5
       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

                                         6
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

                                                 7
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] . . .

                                        8
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

                                          11
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



                                               12
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

                                                  16
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.




                                            17
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

                                                   19
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.




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