| Reels operated a Cleveland drug-trafficking ring and regularly purchased large amounts of heroin, reselling the drug in smaller quantities. Reels and Wheat were social acquaintances. By phone, Wheat told Reels that he had come across “something” in Reels’s “field.” They met at a gas station; Wheat gave Reels a free “sample” of about .3 grams of heroin. Reels had a customer test the sample but ultimately did not purchase any heroin from Wheat. The two had no further interactions. Before that meeting, Reels had unwittingly sold large amounts of drugs to DEA confidential informants. DEA was tracking Reels’s movements and conversations. Weeks after Reels’s interaction with Wheat, officers executed search warrants at Reels’s properties, recovered large amounts of drugs, and charged Reels and others, including Wheat. Wheat was charged with a conspiracy to possess with intent to distribute and to distribute at least 100 grams of heroin and 40 grams of fentanyl (with a minimum five-year sentence. 21 U.S.C. 841(a)(1), (b)(1)(B), 846) and with using a communication facility in furtherance of a drug-trafficking crime. The government withdrew the drug-quantity allegation. Convicted on both counts, Wheat received an above-guidelines 27-month sentence. The Sixth Circuit reversed Wheat’s conspiracy conviction. A buyer-seller agreement alone does not establish a section 846 “conspiracy.” The government presented overwhelming evidence that Reels operated a drug distribution scheme but Reels was not on trial. The logic underlying the buyer-seller exception extends to Wheat’s agreement to distribute a sample to Reels. The government did not present additional evidence of a broader agreement between the two to distribute heroin to third parties. The court upheld the “communication facility” conviction. |
