United States v. Ajayi

United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 21, 2023
No. 21-10728
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Christopher Kalejaiye Ajayi,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:20-CR-290-6
Before Richman, Chief Judge, and Elrod and Oldham, Circuit Judges.
Per Curiam:
Christopher Ajayi appeals his conviction and 151-month sentence for
his involvement in a pill mill. We affirm.
I.
Ajayi was a pharmacist in a “pill mill” drug distribution operation.
Abbreviating, the crime worked like this: corrupt doctors wrote fake
prescriptions, Ajayi filled those prescriptions, and the “patients” (or their
handlers) took the prescribed drugs and sold them on the street. Ajayi’s
operation involved three drugs: hydrocodone, a “semisynthetic opioid”;
No. 21-10728
carisoprodol, a muscle relaxant; and promethazine with codeine, a high-
strength cough syrup.
The jury convicted Ajayi of one drug conspiracy count for each
predicate drug, in violation of 21 U.S.C. § 846. It also convicted Ajayi of two
additional counts for possession with intent to distribute hydrocodone and
carisoprodol, in violation of 21 U.S.C. § 841(a). The district court sentenced
him to 151 months’ imprisonment, the low end of the applicable Guidelines
range.
On direct appeal, Ajayi argues that errors in the district court’s jury
instructions require his retrial. In the alternative, Ajayi argues that the district
court miscalculated his Sentencing Guidelines offense level. We (II) review
Ajayi’s jury-charge contentions, then we (III) review his sentence.
II.
Ajayi’s points of error connected to his jury instructions can be
consolidated into two items: whether the jury instructions (A) adequately
conveyed the mens rea requirements for Ajayi’s offenses or (B) improperly
characterized the weight of the evidence.
A.
Ajayi argues that the district court failed to precisely articulate the
mens rea element applicable to 21 U.S.C. §§ 841(a) and 846 offenses, in the
context of a pharmacist ordinarily authorized to distribute drugs. So, to
evaluate Ajayi’s conviction, we must first define the mens rea requirements
of both 21 U.S.C. §§ 841(a) and 846. Because that involves statutory
construction, our review is de novo. See United States v. Garcia-Gonzalez, 714
F.3d 306, 312 (5th Cir. 2013).
Start with § 846, which imposes liability on anyone who “attempts or
conspires” to commit certain drug offenses. See 21 U.S.C. § 846. The
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Supreme Court has held that “conspiracy” in the § 846 context takes the
term’s common-law definition. United States v. Shabani, 513 U.S. 10, 13–14
(1994). The mens rea for common-law conspiracy is specific intent; the
defendant must intend to agree and must intend that a substantive offense be
committed by some member of the conspiracy. Ocasio v. United States, 578
U.S. 282, 288 (2016).
Next consider 21 U.S.C. § 841(a). Section 841(a) is the substantive
drug distribution statute. It requires that a defendant, without legal
authorization, “knowingly or intentionally” possess with intent to distribute
or actually distribute drugs. Id.Ajayi’s arguments focus on the district court’s § 841(a) instructions.
The district court’s jury charge said that in the context of a pharmacist,
“possess with intent to distribute” means “to possess with intent to deliver
or transfer possession of a controlled substance to another person, with or
without any financial interest in the transaction, and outside the scope of
professional practice or not for a legitimate medical purpose.”
Ajayi argues the above instruction, and others related to it, failed to
capture the mens rea required by § 841(a). Ajayi obviously possessed and
intended to transfer possession of controlled substances every time he filled
a prescription. The crux of the matter is not just whether Ajayi knew that he
was filling prescriptions, but also whether he had subjective awareness of the
illegitimate nature of those scripts when he filled them. Ajayi argues that the
district court’s instructions left open the possibility of conviction based solely
on the objectively illegitimate nature of the prescriptions, because the district
court did not make clear whether “intent” modifies only “deliver or
transfer” or continues to modify through “not for a legitimate medical
purpose.”
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After Ajayi was convicted but before argument was heard in this case,
the Supreme Court decided Ruan v. United States, 142 S. Ct. 2370 (2022).
There, the Court held that when a healthcare professional authorized to
dispense controlled substances is charged with violating § 841(a), the
Government must “prove beyond a reasonable doubt that the defendant
knew that he or she was acting in an unauthorized manner.” Id. at 2375. In
other words, the defendant must subjectively understand the illegitimate
nature of the distribution they facilitate to commit an offense under § 841(a).
Id. at 2381. Filling an objectively illegitimate prescription is not a sufficient
condition to convict. Id.
In this case, the district court drafted Ajayi’s jury charge before it
could benefit from Ruan’s guidance. The district court did make clear,
however, that conviction for a § 846 conspiracy offense requires that a
defendant know “the unlawful purpose of the agreement” and join “in the
agreement willfully, that is, with the intent to further its unlawful purpose.”
Significantly, Ajayi’s reply brief appears to concede that this conspiracy
instruction was adequate. At oral argument, Ajayi’s counsel acknowledged
that the individual conspiracy instruction was appropriate, but disputed the
holistic sufficiency of the instructions.
It is true that we evaluate jury instructions as a whole, in the context
of the trial record. See United States v. Phea, 755 F.3d 255, 266 (5th Cir. 2014);
United States v. Guidry, 406 F.3d 314, 321 (5th Cir. 2005). On the specific
facts of this case, we find that even if idiosyncratic portions of the jury charge
lacked clarity on § 841(a)’s mens rea requirement, the adequate § 846 mens
rea instruction filled any gap by clearly requiring that the jury find that Ajayi
have understood the illegitimate nature of his conduct.
Further, any error in the § 841(a) instruction was harmless. See United
States v. Gas Pipe, Inc., 997 F.3d 231 (5th Cir. 2021) (indicating that claims of
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No. 21-10728
jury instruction error are subject to harmless error review). The district court
not only provided a concededly adequate conspiracy instruction but also
paired it with an instruction consistent with Pinkerton v. United States, 328
U.S. 640 (1946). Ajayi does not dispute that predicate § 841(a) offenses
occurred in furtherance of the alleged § 846 conspiracy for which he was
convicted. That is enough to sustain a conviction for those predicate § 841(a)
offenses. See Pinkerton, 328 U.S. at 646–47.
B.
Ajayi next argues that the district court’s jury charge improperly
commented on the weight of the evidence. Ajayi’s argument ties to a single
page of the district court’s twenty-two page charge, on which the trial court
explained circumstances that might support a jury’s inference that scripts
filled by Ajayi were illegitimate.
Ajayi objected to the relevant portion of the jury instructions at trial,
but he did not state the grounds for his objection. We require that a party
attempting to preserve jury instruction error not only object but also assert
specific grounds for that objection at trial and then argue consistently with
those grounds on appeal. See United States v. Arnold, 416 F.3d 349, 355 (5th
Cir. 2019) (finding plain error review applicable where defendant made an
unspecific objection); United States v. Heath, 970 F.2d 1397, 1402 (5th Cir.
1992) (“A party may not state one ground when objecting to an instruction
and attempt to rely on a different ground for the objection on appeal.”).
Accordingly, we review this argument for plain error only.
We have previously held that trial court judges may not “usurp[] the
province of the jury” by applying the law to the facts in the jury’s stead.
United States v. Johnson, 718 F.2d 1317, 1318, 1325 (1983). That said, trial
judges do retain a “common-law power to comment on the evidence,”
provided they do so without “calling the turn” (deciding the outcome). Id.5
No. 21-10728
at 1324–25 (quotation omitted). This power includes “wide latitude in
commenting on the evidence during [a trial court’s] instructions to the jury.”
United States v. Jara-Favela, 686 F.3d 289, 297–98 (5th Cir. 2012). In Jara-
Favela, the trial court’s “possibly confusing” oral instructions arguably
suggested that the defendant had lied. Id. at 298. On review, we found that
“the record as a whole” revealed no “serious[] prejudice” and that the
remarks in context did not appear to demand the jury reach a specific
conclusion. Id. at 298–99.
Here, the trial court’s remarks explained relevant, available inferences
in conditional language, but did not dictate that the jury reach any specific
outcome. The trial court also emphasized to the jury that they should “not
assume from anything I may have done or said during the trial that I have any
opinion” concerning the case, and that the jury must “arrive at your own
verdict.” Our review of the remainder of the trial record reveals no evidence
of bias on the part of the trial judge.
Ajayi does not come close to showing plain error.
III.
Ajayi also argues that the district court miscalculated his offense level
and Guidelines sentencing range. More precisely, Ajayi challenges (A) the
drug weight for which he was held liable, (B) a premises enhancement, and
(C) an obstruction enhancement. We consider each item in turn and find no
reversible error.
A.
Ajayi’s Pre-Sentence Report (“PSR”) recommended holding Ajayi
responsible for 947 kilograms of converted drug weight. Under the
Sentencing Guidelines, that converted drug weight yields a base offense level
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No. 21-10728
of 28. See U.S.S.G. §2D1.1(c). The district court adopted the PSR’s findings
and its recommended base offense level.
The PSR’s converted drug weight calculation includes every
promethazine and carisoprodol prescription that Ajayi filled for the doctor at
the heart of the alleged pill mill conspiracy. Ajayi argues that is unfair,
because even if he came to know the scripts were illegitimate, the
Government has not shown that he knew of the illicit purpose of the very first
promethazine and carisoprodol prescriptions he filled for the offending
doctor. Some allowance, Ajayi contends, must be made for that.
Even if Ajayi is correct, however, any error connected to carisoprodol
or promethazine was harmless. That is because 99.9% of the converted drug
weight attributed to Ajayi stems from hydrocodone. Everything else was a
drop in the bucket that could not plausibly impact Ajayi’s offense level or
Guidelines range.
Ajayi also disputes the PSR’s measurement of this hydrocodone
liability. The PSR held Ajayi liable for ~14,000 hydrocodone pills filled in
response to prescriptions issued by the offending doctor, from December
2014 onward. But the PSR did not impose liability for around 5,000
hydrocodone pills filled for the relevant doctor prior to December 2014,
around the time when hydrocodone was reclassified as a Schedule II drug (an
increase in seriousness from its prior classification) and around when
pharmacists obtained certain tools to help catch illegitimate prescriptions.
Other than a suggestion that his liability be cut by a further third
(conveniently, just enough to secure a lower Guidelines calculation), Ajayi
does not argue with specificity why a different hydrocodone converted
weight ought be preferred to the one the PSR derived. We are deferential to
a PSR’s drug weight calculation in the absence of rebuttal evidence from the
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No. 21-10728
defendant.1 United States v. Kearby, 943 F.3d 969, 974 (5th Cir. 2019). Such
deference is warranted here.
B.
Over Ajayi’s objection, the district court imposed a two-level
enhancement for maintaining a drug premises. Section 2D1.1(b)(12) of the
Sentencing Guidelines provides for this enhancement when a defendant
“maintained a premises for the purpose of manufacturing or distributing a
controlled substance.” The premises enhancement applies where illicit
distribution was “one of the defendant’s primary or principal uses for the
premises.” United States v. Galicia, 983 F.3d 842, 844 (5th Cir. 2020)
(quotation omitted). The application of § 2D1.1(b)(12) is a factual question
that we review for clear error. United States v. Guzman-Reyes, 853 F.3d 260,
263 (5th Cir. 2017).
In this case, the district court based the enhancement on Ajayi’s
pharmacy. Ajayi argues that the Government hasn’t established that illegal
drug transmission was a “primary or principal” use of his pharmacy. But the
record indicates that at relevant times, 80% or more of the pharmacy’s
controlled substances distribution was for prescriptions issued by the doctor
involved in the alleged drug conspiracy. While the pharmacy itself might have
1
The best evidence Ajayi offers in support of some unspecified, lower hydrocodone
converted drug weight calculation is the fact that he was shot in 2016 and had to recuperate
afterward. Ajayi contends that unspecified others ran his pharmacy for several months after
this unfortunate event and that he cannot be held liable for prescriptions they dispensed.
But no medical records substantiate Ajayi’s contention that he was incapacitated for more
than a short period. The PSR and the district court found that Ajayi’s attribution to others
lacked credibility. We will not disturb that conclusion. And even if the calculation was off,
any error was harmless. Ajayi would need to reduce his hydrocodone liability at least 26%
to secure a lower Guidelines offense level and sentencing range; the chance of doing so by
evading liability for a few months of 2016 is next to nonexistent when over 70% of his
hydrocodone liability arose in and after 2019.
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No. 21-10728
had other uses besides illegally distributing controlled substances, the
evidentiary bar for a premises enhancement is not high. See Galicia, 983 F.3d
at 844; see also United States v. Loston, No. 21-30772, 2022 WL 17352572 (5th
Cir. Dec. 1, 2022) (per curiam) (reviewing our § 2D1.1(b)(12) precedent).
Under these circumstances, we lack a “definite and firm conviction that a
mistake has been committed” and hence cannot find clear error. See United
States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (defining clear error).
C.
Finally, Ajayi objects to the district court’s imposition of a two-level
enhancement for obstruction of justice. Section 3C1.1 of the Sentencing
Guidelines provides a two-level enhancement where the defendant “willfully
obstructed or impeded, or attempted to obstruct or impede, the
administration of justice with respect to the investigation, prosecution, or
sentencing of the instant offense of conviction.” The Comments make clear
that perjury during a defendant’s trial testimony may constitute obstruction.
See U.S.S.G. § 3C1.1, cmt. n.4.
A district court’s factual findings concerning § 3C1.1 are reviewed for
clear error. United States v. Rickett, 89 F.3d 224, 226 (5th Cir. 1996). We
review any legal questions de novo. See United States v. Zapata-Lara, 615 F.3d
388, 390 (5th Cir. 2010).
Relying on Ajayi’s conviction, the PSR concluded that Ajayi perjured
himself on the stand when Ajayi testified that he was unaware of the alleged
drug conspiracy connected to his pharmacy. The PSR, relying on phone
intercepts and information from Ajayi’s coconspirators, also concluded that
Ajayi testified untruthfully about his relationships with other participants in
the pill-mill distribution scheme. The district court adopted the PSR’s
conclusions.
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Ajayi argues that the district court failed to comply with the Supreme
Court’s instruction in United States v. Dunnigan, 507 U.S. 87 (1993), that trial
courts applying § 3C1.1 enhancements make clear findings of perjury. Id. at
95. There, the Supreme Court indicated that “it is preferable for a district
court to address each element of the alleged perjury in a separate and clear
finding.” Ibid. But a § 3C1.1 enhancement survives review when a trial court
makes a single finding that “encompasses all of the factual predicates for a
finding of perjury.” Ibid. The trial court may make such a finding by adopting
a PSR that contains adequate findings. See United States v. Perez-Solis, 709
F.3d 453, 470 (5th Cir. 2013).
In Ajayi’s case, the district court adopted the PSR, which adequately
described Ajayi’s perjury. Nothing more was required. See ibid. Still, the
district court gave further consideration to Ajayi’s objections before deciding
at the sentencing hearing that the district court “agree[d] with the
government as to his testimony that it meets the obstruction enhancement.”
After carefully reviewing the record, we hold that the district court’s
findings “encompasse[d] all of the factual predicates for a finding of perjury”
and were legally adequate. See Dunnigan, 507 U.S. at 95. And, since the
district court’s factual findings were “plausible in light of the record as a
whole,” those factual findings were not clearly erroneous. See United States
v. Lucio, 985 F.3d 482, 485 (5th Cir. 2021) (quotation omitted).
AFFIRMED.
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