RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 20a0206p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ┐ Plaintiff-Appellee, │ │ > No. 18-1672 v. │ │ │ CALVIN EARL MCREYNOLDS, JR., │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Eastern District of Michigan at Bay City. No. 1:16-cr-20677-15—Thomas L. Ludington, District Judge. Decided and Filed: July 9, 2020 Before: DAUGHTREY, CLAY, and GRIFFIN, Circuit Judges. _________________ COUNSEL ON BRIEF: Margaret Sind Raben, GUREWITZ & RABEN, PLC, Detroit, Michigan, for Appellant. Timothy M. Turkelson, UNITED STATES ATTORNEY’S OFFICE, Bay City, Michigan, for Appellee. CLAY, J., delivered the opinion of the court in which DAUGHTREY, J., joined, and GRIFFIN, J., joined in part. GRIFFIN, J. (pp. 20–25), delivered a separate opinion concurring in part and dissenting in part. No. 18-1672 United States v. McReynolds Page 2 _________________ OPINION _________________ CLAY, Circuit Judge. Defendant Calvin McReynolds appeals his conviction and sentence for conspiring to distribute and to possess with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. For the reasons that follow, we affirm McReynolds’ conviction but vacate his sentence and remand for resentencing. BACKGROUND In April 2017, a grand jury indicted McReynolds and seventeen codefendants for various violations of the federal drug laws. McReynolds was charged only in Count 1 with conspiring to distribute and to possess with intent to distribute 500 grams or more of cocaine and 1,000 grams or more of heroin. The indictment provided that between June 5, 2015 and August 30, 2016, the defendants knowingly conspired and agreed together and with other persons, both known and unknown to the grand jury, to possess with intent to distribute and to distribute controlled substances, in violation of Title 21, United States Code, Section 841(a)(1). The conspiracy as a whole involved 500 grams or more of a mixture or substance containing a detectable amount of cocaine, . . . and 1000 grams or more of a mixture or substance containing a detectable amount of heroin, . . . all of which is attributable to each defendant as a result of their own individual conduct, and the conduct of other conspirators reasonably foreseeable to each of them. . . . All in violation of Title 21, United States Code, Section 846. (Indictment, R. 183, Pg. ID 973–74.) McReynolds was the only defendant to proceed to trial. At trial, he conceded that he does in fact sell drugs for individual consumption, but argued that he was not a member of the charged conspiracy. The prosecution presented various circumstantial evidence to link McReynolds to the conspiracy. First, the prosecution introduced the testimony of Special Agent Mitchell King. King was part of the joint federal and state task force investigating the conspiracy. King testified that the task force initiated approximately fifty controlled buys during its investigation, but that none No. 18-1672 United States v. McReynolds Page 3 of these buys were from McReynolds. The ...
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