United States v. AjayiUnited States v. Ajayi
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”; 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
On direct appeal, Ajayi argues that errors in the district court’s jury instructions require his retrial. In the аlternative, 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.
Ajayi argues that the district court failed to precisely articulate the mens rea element applicable to
Start with
Next consider
Ajayi’s arguments focus on the district court’s
Ajayi argues the above instruction, and others related to it, failed to capture the mens rea required by
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
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
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
Further, any error in the
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 speсific 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 attemрt 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. 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.
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, Ajаyi 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. Undеr the Sentencing Guidelines, that converted drug weight yields a base offense level of 28. See
The PSR’s converted drug weight calculation includes every promethazine and carisoprodol prescriрtion 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 responsе 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 sеriousness 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 arguе 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 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 twо-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
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 had other uses besides illegally distributing controlled substanсes, 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
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 respеct 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
A district court’s factual findings concerning
Relying on Ajayi’s conviction, the PSR concluded that Ajayi perjured himself on the stand when Ajayi tеstified 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 sсheme. The district court adopted the PSR’s conclusions.
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.