Valentine Okonkwo

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13104
Non-Argument Calendar
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D.C. Docket No. 6:19-cv-00638-PGB-GJK
VALENTINE OKONKWO,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
No. 20-13552
Non-Argument Calendar
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D.C. Docket No. 6:14-cr-00005-PGB-GJK-1
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VALENTINE OKONKWO,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Florida
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(August 24, 2021)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit
Judges.
PER CURIAM:
Valentine Okonkwo, a federal prisoner, appeals the denial of his motion to
vacate, 28 U.S.C. § 2255, and petition for a writ of audita querela. We issued a
certificate of appealability to address whether trial counsel was ineffective for
failing to object to the amount of oxycodone attributed to Okonkwo for conspiring
to distribute and for distributing that drug illegally. We consolidated that appeal
with Okonkwo’s challenge to the denial of his petition for a writ of audita querela
to vacate his forfeiture monetary judgment. Because counsel had no obligation to
object to Okonkwo being held responsible for all the oxycodone distributed from
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his pharmacy and the writ of audita querela was unavailable for him to challenge
purported errors that preceded the entry of his forfeiture judgment, we affirm.
I. BACKGROUND
In January 2015, a grand jury returned an amended indictment that charged
Okonkwo with conspiring to possess with intent to distribute and ten counts of
distributing oxycodone to specific customers outside the usual course of
professional practice and for other than a legitimate medical purpose. 21 U.S.C.
§§ 846, 841(a)(1), 841(b)(1)(C). The indictment also sought forfeiture of
Okonkwo’s pharmaceutical licenses and “a money judgment in the amount of at
least $555,000, representing the amount of proceeds [he] obtained . . . from the
conspiracy” to distribute oxycodone between December 2009 and October 2012.
Id. § 853. Later, the government filed a notice requesting the district court enter a
forfeiture monetary judgment against Okonkwo.
Business records and testimony from customers, employees, an owner of an
adjacent business, and an expert proved that Okonkwo filled forged, altered, and
duplicative prescriptions for oxycodone at his Orlando business, Avalon Park
Pharmacy. Emily Bird, an oxycodone addict, testified that Okonkwo filled
prescriptions without verification in return for cash payments and advised her to
obtain prescriptions of better quality. Three Avalon employees who processed
internet and mail-order prescriptions testified that customers often appeared to be
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drug addicts and some would lose consciousness at the pharmacy. The owner of a
nearby salon observed carloads of customers arrive at Avalon, where they waited
outside for hours and become rowdy and intoxicated. A professor of pharmacy
practice identified multiple “red flags” in prescriptions Avalon filled, including
prescriptions written and submitted on one day for multiple patients by a single
doctor and prescriptions dated long before being filled. Business records
established that Avalon purchased more oxycodone between 2009 and 2012 than
any pharmacy chain store in the area.
Agents of the Drug Enforcement Agency also testified about Avalon’s
profits and Okonkwo’s wrongdoing. Agent Paul Short discovered that many
prescriptions Avalon filled were written by doctors whose offices were more than
100 miles away, that 74 percent of its transactions involved oxycodone, and that 99
percent of its customers paid with cash, which resulted in proceeds of more than
$1.2 million between 2009 and 2012. The agent also learned that Avalon dispensed
563,000 oxycodone tablets between December 2009 and April 2012, which far
exceeded the average distribution rate by pharmacies of 72,000 tablets a year and
that Okonkwo filled 605 prescriptions and dispensed 120,829 oxycodone tablets.
Agent Barbara Boggess discovered that, between 2009 and 2013, Okonkwo
underreported to drug distributors the amount of Oxycodone that Avalon sold, cash
payments it received, and sales it made to remote customers and that he
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misrepresented that Avalon verified prescriptions with physicians and reported
fraudulent prescriptions to law enforcement. Agent Deana Diapola testified that
she and other agents observed Okonkwo falsely mark forged prescriptions as being
verified with issuing physicians.
During trial, the parties disputed the process for obtaining a forfeiture
monetary judgment. The prosecutor argued that Federal Rule of Criminal
Procedure 32.2(b)(1) and United States v. Curbelo, 726 F.3d 1260 (11th Cir.
2013), dictated that the district court should determine the amount Okonkwo had to
pay. Defense counsel argued that the determination of the amount rested with the
jury.
The jury found Okonkwo guilty of one count of conspiring to distribute and
ten counts of distributing oxycodone without a legitimate medical purpose. The
jury also returned a special verdict finding that Okonkwo used his professional
licenses to commit his crimes. The district court ordered Okonkwo to forfeit his
licenses. Later, the district court granted the motion of the government for a
forfeiture monetary judgment against Okonkwo of $555,000.
Okonkwo’s presentence investigation report provided a base offense level of
38 for distributing more than 15 kilograms of oxycodone between December 2009
and April 2012 by dispensing 491,706 30-milligram tablets and 65,217 15-
milligram tablets, which equated to 105,387 kilograms of marijuana. United States
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Sentencing Guidelines Manual § 2D1.1(c)(1) (Nov. 2015). The presentence report
added two levels for Okonkwo’s use of a special skill, id. § 3B1.3, which resulted
in a total offense level of 40. With a criminal history category of I, Okonkwo’s
presentence report provided an advisory sentencing range of 292 to 365 months of
imprisonment. The report stated that Okonkwo was unable to pay a fine due to
“pending forfeitures” and other financial obligations.
Okonkwo objected to the use of a 1:6700 ratio of oxycodone to marijuana
and argued that the district court should apply a 1:500 ratio, which would result in
a base offense level of 32, but the district court overruled his objection. The district
court ruled that, despite counsel’s “cogent point” about the equivalency ratio, the
sentencing guidelines did not overrepresent the seriousness of Okonkwo’s offense
because “oxycodone carrie[d] distinct risks, unlike heroin, due to its legitimate
medical use and accessibility” and Okonkwo’s ability to “sell it in plain view of
the public with a sense of security.”
The district court recounted the evidence against Okonkwo and sentenced
him to 292 months of imprisonment. The district court reminded Okonkwo that it
had addressed the “matter of forfeiture . . . [in] a [preliminary] order . . . [and] a
final order.” The prosecutor interjected that the orders referenced did not pertain to
Okonkwo’s “license . . . [being] forfeited by the jury at trial.” Okonkwo appealed
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and challenged his convictions, which we affirmed. United States v. Okonkwo, 702
F. App’x 866 (11th Cir. 2017).
While Okonkwo’s appeal was pending, he moved pro se to reduce the
forfeiture monetary judgment from $555,000 to $10,000. Okonkwo argued that
appellate counsel told him about the judgment and that it should have equaled the
proceeds of his unlawful transactions with the ten customers identified in his
indictment. The government responded that Okonkwo received notice of the
personal money judgment during his trial and at sentencing, that he failed timely to
challenge the judgment, and that it was correctly based on the proceeds of the
conspiracy. The district court denied Okonkwo’s motion.
Okonkwo later moved to vacate his sentence. 28 U.S.C. § 2255. He argued
that his trial counsel was ineffective for failing to object to the calculation of his
base offense level based on the 556,923 oxycodone tablets dispensed from Avalon
and should have asked the district court to determine his offense level based on the
120,829 oxycodone tablets that he dispensed. The district court denied Okonkwo’s
motion to vacate.
Okonkwo also petitioned pro se for a writ of audita querela. He argued that
his trial counsel failed to notify him of the personal money judgment and then
disregarded his instructions to challenge the judgment on direct appeal. He also
argued that the district court erred by basing the judgment on gross proceeds
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instead of net proceeds of Avalon and by treating funds in business bank accounts
as substitute assets.
The district court denied Okonkwo’s petition. The district court ruled that
Okonkwo “was well-aware of the forfeiture judgment” and “the writ of audita
querela [did] not apply” because he could have “appealed [the personal money
judgment] to the Eleventh Circuit and chose not to.”
II. STANDARD OF REVIEW
On denial of a motion to vacate a sentence, we review findings of fact for
clear error and the application of law to those facts de novo. Dell v. United States,
710 F.3d 1267, 1272 (11th Cir. 2013). We also review “de novo the question of
whether a prisoner may challenge his sentence by filing a motion for a writ of
audita querela.” United States v. Holt, 417 F.3d 1172, 1174 (11th Cir. 2005).
III. DISCUSSION
We divide our discussion in two parts. We first address Okonkwo’s
argument that trial counsel was ineffective for failing to challenge the amount of
oxycodone tablets used to determine his base offense level. We next address his
request for an extraordinary writ to set aside his forfeiture monetary judgment.
A. The District Court Did Not Err by Denying Okonkwo’s Motion to Vacate.
To prevail on a claim of ineffective assistance of counsel, a movant must
satisfy a two-part standard. See Strickland v. Washington, 466 U.S. 668, 688, 694
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(1984). The movant must first prove “that counsel made errors so serious that [he]
was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment” and
that counsel’s error was “so serious as to deprive [him] of a fair trial, a trial whose
result is reliable.” Id. at 687. “Surmounting Strickland’s high bar is never an easy
task.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (quoting Padilla v.
Kentucky, 559 U.S. 356, 371 (2010)). Counsel enjoys a “strong presumption” that
his performance was reasonable and that his strategic decisions represented “the
exercise of reasonable professional judgment.” Strickland, 466 U.S. at 689–90.
Counsel is ineffective only if his performance falls “outside the wide range of
professionally competent assistance.” Id. at 690.
To determine a defendant’s base offense level for a drug offense, the district
court must consider both the amount of the substance alleged in his indictment and
any amount that is part of his relevant conduct. When “the offense involved both a
substantive drug offense and a[] . . . conspiracy. . . , the total quantity involved
[must] be aggregated to determine the scale of the offense.” U.S.S.G. § 2D1.1 cmt.
n.5. “Where there is no drug seizure . . ., the [district] court [is required to]
approximate the quantity of the controlled substance.” Id.
The district court did not err by rejecting Okonkwo’s argument that his
counsel performed deficiently by failing to object to the amount of drugs attributed
to him. Okonkwo was responsible for unlawfully distributing tablets of oxycodone
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he dispensed by filling hundreds of prescriptions that he knew were fraudulent or
that he knew were written by a physician for no legitimate medical purpose. See
United States v. Iriele, 977 F.3d 1155, 1169 (11th Cir. 2020). He also was
responsible for the unlawful sales of oxycodone by his pharmacy, which he
attempted to conceal from drug distributors and government agencies. See
U.S.S.G. § 1B1.3 (defining relevant conduct as encompassing acts that the
defendant aids and abets and that are foreseeable to him in “jointly undertaken
criminal activity”). The district court reasonably approximated the amount of
oxycodone Okonkwo distributed by holding him responsible for the 491,706 30-
milligram tablets and 65,217 15-milligram tablets dispensed by his pharmacy. So
defense counsel had no viable ground to object to the amount of oxycodone
attributed to Okonkwo. And because counsel cannot be ineffective for “failing to
recognize . . . [or] to preserve a meritless issue,” United States v. Winfield, 960
F.2d 970, 974 (11th Cir. 1992), Okonkwo was not entitled to postconviction relief.
The district court did not err by denying Okonkwo’s motion to vacate.
B. The District Court Also Did Not Err by Denying Okonkwo’s Petition for a Writ
of Audita Querela.
Audita querela is an ancient, common law writ that allows a defendant to
attack the enforcement of a judgment after it is rendered. Holt, 417 F.3d at 1174.
The writ is used only to raise a defense or remedy an error that has “arisen after
judgment.” Leggett v. Humphreys, 62 U.S. 66, 71 (1858); see Rawlins v. Kansas,
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714 F.3d 1189, 1196 (10th Cir. 2013) (“[A]udita querela addresses unanticipated
situations that arise after judgment.”); United States v. Miller, 599 F.3d 484, 489
(5th Cir. 2010) (“Audita querela is only available where the judgment of the
district court was correct at the time it was rendered, but is undermined by facts
that later come to light.”); United States v. Reyes, 945 F.2d 862, 866 (5th Cir.
1991) (citing United States v. Holder, 936 F.2d 1 (1st Cir. 1991), and United States
v. Ayala, 894 F.2d 425 (D.C. Cir. 1990), for the proposition that the writ of audita
querela is available based on a legal objection that “arisen subsequent to that
conviction”). Audita querela, like coram nobis, is an “extraordinary remedy” that
is available “only under circumstances compelling such action to achieve justice”
to correct “errors of the most fundamental character.” United States v. Morgan,
346 U.S. 502, 511–12 (1954).
The writ of audita querela is not available to address the contemporaneous
errors alleged by Okonkwo. Okonkwo alleged that his defense counsel failed to
inform him that the government sought a personal money judgment against him or
to give him a copy of that judgment and that the district court miscalculated the
amount he had to pay and misclassified the funds in business bank accounts as
substitute assets. Because all these events occurred before entry of the forfeiture
money judgment, the remedy of audita querela is unavailable to correct any error.
The district court correctly denied Okonkwo’s petition for extraordinary relief.
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IV. CONCLUSION
We AFFIRM the denial of Okonkwo’s motion to vacate and petition for a
writ of audita querela.
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