COLORADO COURT OF APPEALS                                      2016COA105


Court of Appeals No. 13CA1680
Adams County District Court No. 12CR2425
Honorable John E. Popovich, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rose Lucero,

Defendant-Appellant.


                       JUDGMENT VACATED AND CASE
                        REMANDED WITH DIRECTIONS

                                 Division VI
                        Opinion by JUDGE NAVARRO
                        Furman and Miller, JJ., concur

                           Announced July 14, 2016


Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    If a person requests and receives a controlled substance solely

 for her personal use, has she thereby entered into a conspiracy with

 the person who gave it to her to distribute the substance? We

 conclude that she has not because in that scenario the two people

 have not agreed to distribute the substance to others.

¶2    Defendant, Rose Lucero, appeals the judgment of conviction

 entered on a jury verdict finding her guilty of conspiracy to

 distribute a controlled substance. Because Lucero’s acts did not

 constitute such a conspiracy, we vacate the judgment of conviction

 and remand for entry of a judgment of acquittal.

                 I.    Factual and Procedural History

¶3    The prosecution charged Lucero with conspiring with her

 coworker to distribute codeine (contained in Tylenol 3), a schedule

 III controlled substance, as well as two counts of inducing her

 coworker to distribute the same substance. See § 18-18-405(1)(a),

 C.R.S. 2015. All of the charged offenses were class 4 felonies at the

 time of Lucero’s acts. See Ch. 424, sec. 3, § 18-18-405(2)(a)(II)(A),

 2003 Colo. Sess. Laws 2682-83. Evidence of the following was

 admitted at trial.




                                    1
¶4    Between December 1, 2010, and April 30, 2012, Lucero’s

 coworker obtained various prescription medications for her health

 and then shared them with others at the workplace. Several times

 over this period, Lucero requested medication from the coworker for

 Lucero’s personal use (to relieve pain from cramps). Lucero made

 these requests in person, by phone, or by e-mail. Each time the

 coworker gave Lucero medication, she gave Lucero one pill for no

 reimbursement. There was no evidence that Lucero distributed the

 medication to others; on the contrary, the evidence showed (and the

 prosecution argued) that she took the pills herself.

¶5    Besides an e-mail with the subject line “Tylenol,” Lucero’s

 requests for medication were unspecific. The women gave

 inconsistent statements as to what particular medication was

 exchanged. The coworker testified that she gave Lucero “Advil,” “my

 prescription of my ibuprofen,” and “Midol.” Lucero said in an

 interview that she received “Tylenol 3s,” “Excedrin,” and

 “ibuprofen.” A detective testified that Tylenol 3 is a “codeine

 narcotic, 30 milligram, which under Schedule III anything less than

 90 milligrams would fall under Schedule III.”




                                    2
¶6    The trial court granted Lucero’s motion for judgment of

 acquittal on the inducement counts but denied her motion on the

 conspiracy count. The jury convicted her of the conspiracy count,

 and the court sentenced her to one year of probation.

                             II.   Analysis

¶7    Lucero contends that the prosecution presented insufficient

 evidence to prove that she conspired with her coworker to distribute

 a controlled substance. Lucero relies on the following principle that

 has been recognized by numerous federal and state courts:

 Evidence of a buyer-seller relationship — without more — does not

 constitute a conspiracy to distribute drugs. Of course, this case

 does not present a stereotypical sale of an illegal drug. Lucero did

 not purchase drugs from a retail seller; she simply asked for

 painkillers (one at a time) from a coworker who agreed to provide

 them for free and for her personal use. Nonetheless, Lucero argues

 that the aforementioned legal principle should protect her from a

 conspiracy conviction to the same extent it would shield a

 stereotypical retail buyer of a controlled substance.

¶8    We agree. We conclude that this principle (i.e., a mere buyer-

 seller relationship does not constitute a drug distribution


                                   3
 conspiracy) applies in Colorado because Colorado’s drug conspiracy

 statute is based on the model uniform law, which in turn is based

 on the federal statute. This precept also comports with Colorado’s

 general conspiracy law, which punishes conspirators who have

 agreed on a common illicit purpose (e.g., to distribute drugs). Such

 commonality is absent where, as here, the evidence shows that the

 transferor intended only to distribute the drugs and the transferee

 intended only to possess them for personal use. Further, to

 conclude that such evidence is sufficient to convict the transferee of

 a conspiracy to distribute controlled substances would contravene

 the General Assembly’s policy decision to punish simple possession

 less severely than conspiracy to distribute. Accordingly, we hold

 that the evidence was not sufficient to sustain Lucero’s conspiracy

 conviction.

                        A. Standard of Review

¶9    We review the record de novo to determine whether the

 evidence before the jury was sufficient both in quantity and quality

 to sustain the defendant’s conviction. Clark v. People, 232 P.3d

 1287, 1291 (Colo. 2010). We consider whether the relevant

 evidence, when viewed as a whole and in the light most favorable to


                                   4
  the prosecution, is substantial and sufficient to support a

  conclusion by a reasonable mind that the defendant is guilty of the

  charge beyond a reasonable doubt. Id. We also review questions of

  statutory interpretation de novo. People v. Perez, 2016 CO 12, ¶ 8.

                        B. Relevant Legal Principles

                              1. Colorado Law

¶ 10   To prove the charge at issue here, the prosecution had to show

  that Lucero “knowingly . . . conspire[d] with one or more other

  persons, to . . . distribute . . . a controlled substance[.]”

  § 18-18-405(1)(a). Any mixture containing “[n]ot more than 1.8

  grams of codeine per 100 milliliters or not more than 90 milligrams

  per dosage unit, with one or more active, nonnarcotic ingredients in

  recognized therapeutic amounts” constitutes a controlled substance

  listed in schedule III. § 18-18-205(2)(d)(II), C.R.S. 2015. As noted,

  conspiracy to distribute a schedule III controlled substance

  constituted a class 4 felony at the time of Lucero’s acts.

  § 18-18-405(2)(a)(II)(A), 2003 Colo. Sess. Laws at 2683.

¶ 11   “Distribute” is defined as “to deliver other than by

  administering or dispensing a controlled substance, with or without

  remuneration.” § 18-18-102(11), C.R.S. 2015. “Deliver” means “to


                                       5
  transfer or attempt to transfer a substance, actually or

  constructively, from one person to another[.]” § 18-18-102(7).

¶ 12   Colorado statutes do not define “conspiracy” in the specific

  context of section 18-18-405. Under the general conspiracy statute,

  “[a] person commits conspiracy to commit a crime if, with the intent

  to promote or facilitate its commission, he agrees with another

  person or persons that they, or one or more of them, will engage in

  conduct which constitutes a crime or an attempt to commit a

  crime[.]” § 18-2-201(1), C.R.S. 2015; see People v Williams, 183

  P.3d 577, 581 (Colo. App. 2007) (looking to general conspiracy law

  to understand the offense of conspiracy to distribute a controlled

  substance). Additionally, one of the conspirators must perform an

  overt act “in pursuance of” the conspiracy. § 18-2-201(2).

¶ 13   Conspiracy is a specific intent crime that requires two distinct

  mental states. Palmer v. People, 964 P.2d 524, 527 (Colo. 1998).

  “First, it requires the specific intent to agree to commit a particular

  crime. Second, it requires the specific intent — or the conscious

  objective — to cause the result of the crime to which the

  conspirators agreed.” Id. at 525. Therefore, “a conspiracy has legal

  significance only with respect to some other crime that serves as its


                                     6
  object.” Id. at 529. Conspiracy requires proof of a “real agreement,

  combination, or confederation with a common design. (Mere

  passive cognizance of the crime to be committed or mere negative

  acquiescence is not sufficient.)” Bates v. People, 179 Colo. 81, 85,

  498 P.2d 1136, 1138 (1972).

         2. Uniform Controlled Substances Act and Federal Law

¶ 14   Colorado adopted a version of the Uniform Controlled

  Substances Act in 1981; Colorado’s statute was modeled on the

  “Uniform Controlled Substances Act (1970).” See Ch. 128, secs.

  1-2, §§ 12-22-301 to -322, 18-18-101 to -109, 1981 Colo. Sess.

  Laws 707-34; Unif. Controlled Substances Act (1970) (amended

  1973) tbl. of jurisdictions, 9 pt. 5 U.L.A. 853 (2007) (recognizing

  that Colorado adopted the Uniform Controlled Substances Act of

  1970 in 1981); see also People v. Abiodun, 111 P.3d 462, 466 (Colo.

  2005) (“In 1981, the general assembly adopted a version of the

  Uniform Controlled Substances Act, joining in a single proscription

  an entire range of conduct potentially facilitating or contributing to

  illicit drug traffic.”) (footnote omitted). In 1992, Colorado repealed

  the earlier uniform law and enacted the “Uniform Controlled

  Substances Act of 1992,” which was modeled on the “Uniform


                                     7
  Controlled Substances Act (1990).” See Ch. 71, sec. 1,

  §§ 18-18-101 to -605, 1992 Colo. Sess. Laws 324-85; Unif.

  Controlled Substances Act (1990), 9 pt. 5 U.L.A. 781-851 (2007).

  The General Assembly expressed its intent that Colorado’s statutes

  be construed consistently with the laws of other states adopting the

  uniform law. See § 18-18-604, 1992 Colo. Sess. Laws at 385 (“To

  the extent that this article is uniform, the judiciary may look to

  decisions regarding the ‘Uniform Controlled Substances Act of 1990’

  among states enacting it, subject to rights and obligations provided

  under other Colorado statutes and the state Constitution.”).

¶ 15   In 2010, the General Assembly enacted section 18-18-403.5,

  which punished simple possession of a controlled substance, and

  removed simple possession from the offenses listed in section

  18-18-405(1)(a). See Ch. 259, sec. 4, § 18-18-403.5, 2010 Colo.

  Sess. Laws 1165 (effective Aug. 11, 2010). Excluding changes not

  relevant here, the statutes in effect at the time of Lucero’s acts




                                     8
  (specifically, Article 18 of Title 18) were part of the Colorado

  Uniform Controlled Substances Act of 1992 as amended in 2010.1

¶ 16   The Uniform Controlled Substances Act is, in turn, based on

  the federal statute regulating controlled substances.

  Commonwealth v. Doty, 36 N.E.3d 604, 608 n.8 (Mass. App. Ct.

  2015); Unif. Controlled Substances Act (1990) prefatory note, § 401

  cmt., § 407 cmt., 9 pt. 5 U.L.A. 783, 829, 833 (2007); Unif.

  Controlled Substances Act (1970) (amended 1973) prefatory note, 9

  pt. 5 U.L.A. 854-55 (2007); see 21 U.S.C. §§ 841, 846 (1988); see

  also Abiodun, 111 P.3d at 466 n.3 (“The prefatory note [to the

  Uniform Controlled Substances Act (1990)] makes clear that the

  Uniform Act ‘was designed to complement the federal Controlled

  Substances Act, which was enacted in 1970,’ and to ‘maintain

  uniformity between the laws of the several States and those of the

  federal government.’”) (citation omitted).

¶ 17   With the exception that federal law does not require proof of

  an overt act in furtherance of a conspiracy to violate the narcotics

  laws, federal drug conspiracy law generally reflects the same

  1In 2013, the General Assembly enacted the Uniform Controlled
  Substances Act of 2013, introducing the concepts of a “drug felony”
  and a “drug misdemeanor.” See §§ 18-18-101 to -606, C.R.S. 2015.

                                      9
  fundamental requirements as Colorado law. See 21 U.S.C. § 846

  (2012); United States v. Shabani, 513 U.S. 10, 11 (1994). Under

  federal law, “[a] drug-distribution conspiracy . . . requires proof that

  the defendant knowingly agreed — either implicitly or explicitly —

  with someone else to distribute drugs.” United States v. Johnson,

  592 F.3d 749, 754 (7th Cir. 2010).

¶ 18   Accordingly, authorities interpreting the federal statute, as

  well as cases interpreting the laws of states that have adopted the

  uniform act, are instructive in construing Colorado’s Uniform

  Controlled Substances Act. People v. Perea, 126 P.3d 241, 245

  (Colo. App. 2005); see § 18-18-604, 1992 Colo. Sess. Laws at 385.

                         3. The Buyer-Seller Rule

¶ 19   Twelve circuits of the United States Courts of Appeal have

  addressed the sufficiency of the evidence in alleged drug

  distribution conspiracies. State v. Allan, 83 A.3d 326, 335 (Conn.

  2014) (collecting cases). “All have held that evidence of a

  buyer-seller relationship, without more, does not constitute a

  conspiracy to distribute a controlled substance.” Doty, 36 N.E.3d at




                                     10
608 (same); see Allan, 83 A.3d at 335.2 Similarly, in states that

have adopted the Uniform Controlled Substances Act, many state

courts have held (relying mostly on federal cases) that evidence of a

buyer-seller relationship, without more, is insufficient to support a

conviction for conspiracy to distribute controlled substances.3 We

have discovered no cases to the contrary.


2 See, e.g., United States v. Delgado, 672 F.3d 320, 333 (5th Cir.
2012); United States v. Johnson, 592 F.3d 749, 754 (7th Cir. 2010);
United States v. Donnell, 596 F.3d 913, 924-25 (8th Cir. 2010);
United States v. Bacon, 598 F.3d 772, 776 (11th Cir. 2010); United
States v. Deitz, 577 F.3d 672, 680 (6th Cir. 2009); United States v.
Boidi, 568 F.3d 24, 30 (1st Cir. 2009); United States v. Parker, 554
F.3d 230, 234-36 (2d Cir. 2009); United States v. Baugham, 449
F.3d 167, 171-72 (D.C. Cir. 2006); United States v. Gibbs, 190 F.3d
188, 197 (3d Cir. 1999); United States v. Ivy, 83 F.3d 1266, 1285-86
(10th Cir. 1996); United States v. Lennick, 18 F.3d 814, 819 (9th
Cir. 1994); United States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).

3 See, e.g., State v. Allan, 83 A.3d 326, 339 (Conn. 2014);
Hernandez v. State, 357 S.E.2d 131, 134 (Ga. Ct. App. 1987);
McBride v. State, 440 N.E.2d 1135, 1137 (Ind. Ct. App. 1982);
Heckstall v. State, 707 A.2d 953, 956 (Md. Ct. Spec. App. 1998);
Commonwealth v. Doty, 36 N.E.3d 604, 608 (Mass. App. Ct. 2015);
State v. Pinkerton, 628 N.W.2d 159, 163 (Minn. Ct. App. 2001);
State v. Serr, 575 N.W.2d 896, 899 (N.D. 1998); State v. Gunn, 437
S.E.2d 75, 81 (S.C. 1993); McCandless v. Equitable Life Ins. Co. of
Iowa, 721 S.W.2d 809, 812 (Tenn. Ct. App. 1986); Zuniga v.
Commonwealth, 375 S.E.2d 381, 385 (Va. Ct. App. 1988); State v.
Smith, 525 N.W.2d 264, 266-67 (Wis. 1995); see also Unif.
Controlled Substances Act (1994) tbl. of jurisdictions, 9 pt. 2 U.L.A.
1-2 (2007) (every state except New Hampshire and Vermont has
adopted a version of the Uniform Controlled Substances Act); People

                                  11
¶ 20   This principle has attracted various labels, including the

  “‘buyer-seller’ rule,” United States v. Ivy, 83 F.3d 1266, 1285 (10th

  Cir. 1996) (citation omitted), the “buyer-seller exception,” United

  States v. Parker, 554 F.3d 230, 235 (2d Cir. 2009), the “retail buyer

  rule,” United States v. Flores, 149 F.3d 1272, 1277 (10th Cir. 1998),

  and the “personal consumption” rule, United States v. Mancari, 875

  F.2d 103, 105 (7th Cir. 1989). The upshot is: “A sale for the buyer’s

  personal consumption, as distinct from a sale for resale, does not a

  conspiracy make.” Id.

¶ 21   The reference to “buyer-seller” does not mean that a transfer

  for payment is required. A fuller description would be

  “transferor-transferee” because the rule “applies to an unpaid

  transfer in the same manner as to a paid sale, as all the reasons for

  the exception are equally applicable regardless of whether the

  transferee pays for the drugs.” Parker, 554 F.3d at 235 n.3. For

  convenience, however, we often use the “buyer-seller” label in this

  opinion even though our discussion applies with equal force to a

  transfer of drugs without remuneration (as in the facts of this case).



  v. Perea, 126 P.3d 241, 245 (Colo. App. 2005) (“[F]orty-eight states
  have adopted some version of the Uniform Act.”).

                                    12
¶ 22   Courts have set forth two rationales for applying the

  buyer-seller rule to examine whether sufficient evidence exists of a

  conspiracy to distribute drugs. Some courts have reasoned that, in

  a simple buyer-seller relationship, there is “no singularity of

  purpose” that the parties will distribute drugs and “thus no meeting

  of the minds.” Allan, 83 A.3d at 335 (collecting cases). As a result,

  these courts find lacking the agreement that is the essence of a

  conspiracy. Other courts have concluded that, even if an

  agreement sufficient to constitute a conspiracy exists, the

  legislature did not intend to subject buyers who purchase drugs for

  personal use to the severe penalties intended for distributors or

  those who conspire to distribute. See id. (collecting cases). We will

  address each rationale in turn.

                    a. The Conspiratorial Agreement

¶ 23   The first line of reasoning stems from an important tenet of

  criminal law: conspiracy is a separate offense from the underlying

  crime. United States v. Brown, 726 F.3d 993, 997 (7th Cir. 2013)

  (“Conspiracy is the extra act of agreeing to commit a crime.”).

  “[C]onspiracy is treated as a separate crime because of the jointness

  of the endeavor. A multiplicity of actors united to accomplish the


                                    13
  same crime is deemed to present a special set of dangers.” United

  States v. Moran, 984 F.2d 1299, 1302-03 (1st Cir. 1993) (emphasis

  added); see Brown, 726 F.3d at 997 (“That agreement is a ‘distinct

  evil.’”) (citation omitted). Courts have explained, therefore, that

  mere proof of a buyer-seller agreement does not support a

  conspiracy conviction “because there is no common illegal purpose:

  In such circumstances, the buyer’s purpose is to buy; the seller’s

  purpose is to sell.” United States v. Donnell, 596 F.3d 913, 924-25

  (8th Cir. 2010) (citations omitted); Allan, 83 A.3d at 335; Doty, 36

  N.E.3d at 609.

¶ 24   In other words, because an agreement to “the same joint

  criminal objective” is the core of a conspiracy, the absence of such

  an agreement dooms a conspiracy conviction:

             What distinguishes a conspiracy from its
             substantive predicate offense is not just the
             presence of any agreement, but an agreement
             with the same joint criminal objective — here
             the joint objective of distributing drugs. This
             joint objective is missing where the conspiracy
             is based simply on an agreement between a
             buyer and a seller for the sale of drugs.
             Although the parties to the sales agreement
             may both agree to commit a crime, they do not
             have the joint criminal objective of distributing
             drugs.



                                    14
  United States v. Dekle, 165 F.3d 826, 829 (11th Cir. 1999); see

  United States v. Colon, 549 F.3d 565, 569-70 (7th Cir. 2008); see

  also Brown, 726 F.3d at 1001 (“People in a buyer-seller relationship

  have not agreed to advance further distribution of drugs; people in

  conspiracies have. That agreement is the key.”). Consequently,

  these courts have held that, to prove a conspiracy to distribute

  drugs, “the government must offer evidence establishing an

  agreement to distribute drugs that is distinct from evidence of the

  agreement to complete the underlying drug deals.” Johnson, 592

  F.3d at 755; Colon, 549 F.3d at 569 (“What is necessary and

  sufficient is proof of an agreement to commit a crime other than the

  crime that consists of the sale itself.”) (citation omitted); Allan, 83

  A.3d at 340.

¶ 25   The above reasoning is consistent with Colorado law. As

  Colorado courts have explained, conspiracy is “a separate and

  distinct offense from that which is the object of the conspiracy, and

  as such may be punishable by a consecutive sentence.” People v.

  Madonna, 651 P.2d 378, 388 (Colo. 1982) (citation omitted); People

  v. Osborne, 973 P.2d 666, 673 (Colo. App. 1998). And the offense of

  conspiracy requires the defendant to “possess the specific intent to


                                     15
  agree to commit a particular crime,” not merely to agree to commit

  crime in general. Palmer, 964 P.2d at 527, 529 (“The crime of

  conspiracy to commit reckless manslaughter would require that the

  defendant have the specific intent to commit reckless

  manslaughter,” which is legally and logically impossible.). Hence,

  the conspirators must have agreed to commit the same particular

  crime (e.g., distributing drugs). However, “when a buyer intends

  only to purchase drugs from a seller, both parties do not unite in

  the same mental objective because they have different intentions:

  one has the intention to buy and the other has the intention to

  sell.” Allan, 83 A.3d at 340; see United States v. Evans, 970 F.2d

  663, 669 (10th Cir. 1992) (“[A] consumer generally does not share

  the distribution objective and thus would not be part of a

  conspiracy to distribute crack cocaine.”).

¶ 26   Accordingly, in line with the extensive authority from other

  jurisdictions, we hold that a mere buyer-seller relationship, without

  more, does not constitute a conspiracy to distribute a controlled

  substance. Because “the focus of conspiracy is not on the unlawful

  object of the conspiracy, but on the process of agreeing to pursue

  that object,” the prosecution must present evidence of “an


                                    16
  agreement in addition to the purchase and sale agreement between

  the two parties.” Allan, 83 A.3d at 340; see Johnson, 592 F.3d at

  755; Colon, 549 F.3d at 569. To prove the requisite conspiratorial

  agreement to distribute drugs, the prosecution must proffer

  evidence of an agreement to advance further distribution of the

  drugs to others beyond the alleged conspirators. Brown, 726 F.3d

  at 998; see Allan, 83 A.3d at 334, 340 (holding that, to prove a

  conspiracy to distribute drugs, the state must prove that the

  conspirators specifically agreed and intended to distribute drugs “to

  another person”); Doty, 36 N.E.3d at 610 (concluding that the state

  failed to prove a drug distribution conspiracy because of the

  absence of evidence that the defendant and his alleged

  co-conspirator agreed to distribute “to others”).

       b. Legislative Distinction Between Possession and Distribution

¶ 27     What if we were to assume, as an alternative to our preceding

  analysis, that a buyer-seller relationship satisfies the definition of a

  conspiracy? We would still conclude that evidence of a buyer-seller

  relationship, without more, is insufficient to convict the buyer of a

  conspiracy to distribute drugs. We are persuaded by those courts

  that have held that the legislature did not intend to subject buyers


                                     17
  who purchase drugs for personal use to the severe penalties

  intended for distributors or those who conspire to distribute.

¶ 28   For instance, the Second Circuit has determined that, “[a]s a

  literal matter,” a buyer-seller relationship satisfies the “customary

  definition” of a conspiracy, with the objective of an illegal transfer of

  drugs. Parker, 554 F.3d at 234. Nonetheless, the Second Circuit

  “has carved out a narrow exception to the general conspiracy rule

  for such transactions.” Id. Under this exception, “the objective to

  transfer the drugs from the seller to the buyer cannot serve as the

  basis for a charge of conspiracy to transfer drugs.” Id.

¶ 29   This exception “preserves important priorities and distinctions

  of the federal narcotics laws, which would otherwise be obliterated.”

  Id. The federal approach to controlled substances “distinguishes

  importantly between, on the one hand, distribution of a controlled

  substance, which is heavily punished, and, on the other, possession

  or acquisition of a controlled substance, which is punished far less

  severely, if at all.” Id.4 And conspiracy to distribute is punished in


  4As the Second Circuit explained, “[n]o doubt, considerations
  underlying this distinction include a policy judgment that persons
  who acquire or possess illegal drugs for their own consumption
  because they are addicted are less reprehensible and should not be

                                     18
  the same manner as distribution. Id. (citing 21 U.S.C. § 846).

  Therefore,

               if an addicted purchaser, who acquired drugs
               for his own use and without intent to
               distribute it to others, were deemed to have
               joined in a conspiracy with his seller for the
               illegal transfer of the drugs from the seller to
               himself, the purchaser would be guilty of
               substantially the same crime, and liable for the
               same punishment, as the seller.

  Id. at 235. In that event, “[t]he policy to distinguish between

  transfer of an illegal drug and the acquisition or possession of the

  drug would be frustrated. The buyer-seller exception thus protects

  a buyer or transferee from the severe liabilities intended only for

  transferors.” Id.

¶ 30   Other courts have adopted similar reasoning. See, e.g., United

  States v. Delgado, 672 F.3d 320, 333 (5th Cir. 2012) (“The

  [buyer-seller] rule shields mere acquirers and street-level users,

  who would otherwise be guilty of conspiracy to distribute, from the

  more severe penalties reserved for distributers.”); Ivy, 83 F.3d at

  1285-86 (“[T]he purpose of the buyer-seller rule is to separate

  consumers, who do not plan to redistribute drugs for profit, from

  punished with the severity directed against those who distribute
  drugs.” Parker, 554 F.3d at 234-35.

                                     19
  street-level, mid-level, and other distributors, who do intend to

  redistribute drugs for profit, thereby furthering the objective of the

  conspiracy.”); Doty, 36 N.E.3d at 610 (punishing a “street-level”

  buyer the same as a seller “is clearly contrary to the intent of the

  statute, which contains graduated penalties based on the

  fundamental distinction between possession and distribution”);

  State v. Pinkerton, 628 N.W.2d 159, 163 (Minn. Ct. App. 2001)

  (“[T]he legislature would not intend that a seller and a buyer of

  controlled substances could be subject to the same penalty,” as

  would be the case “[i]f an agreement solely between a seller and a

  buyer of controlled substances can constitute conspiracy.”).

¶ 31   An analogous graduated penalty structure exists in Colorado.

  At the time of Lucero’s acts, Colorado law punished distribution of a

  controlled substance more severely than simple possession.

  Compare § 18-18-403.5, 2010 Colo. Sess. Laws at 1165

  (possession), with § 18-18-405, 2003 Colo. Sess. Laws at 2682-83

  (distribution).5 And conspiracy to distribute was punished the

  same as distribution. See § 18-18-405, 2003 Colo. Sess. Laws at


  5 The same is generally true under current law. See
  § 18-18-403.5(2), C.R.S. 2015; § 18-18-405(2), C.R.S. 2015.

                                    20
  2682-83. As pertinent here, conspiracy to distribute a schedule III

  controlled substance was a class 4 felony while possession of that

  same substance was a class 1 misdemeanor. See

  § 18-18-403.5(2)(c), 2010 Colo. Sess. Laws at 1165;

  § 18-18-405(2)(a)(II)(A), 2003 Colo. Sess. Laws at 2682-83.

¶ 32   As a consequence, we join those courts that have recognized

  that a mere buyer-seller agreement does not constitute a conspiracy

  to distribute because such conspiracy liability would frustrate the

  legislative policy to distinguish between distribution of an illegal

  drug and the acquisition or possession of the drug. Cf.

  § 2-4-201(1), C.R.S. 2015 (“In enacting a statute, it is presumed

  that: . . . (b) The entire statute is intended to be effective; [and] (c) A

  just and reasonable result is intended.”); Williams v. Crop Prod.

  Servs., Inc., 2015 COA 64, ¶ 5 (When interpreting a statute, we

  consider “the dual contexts of the statute as a whole and the

  comprehensive statutory scheme, giving consistent, harmonious,

  and sensible effect to the statute’s language.”). Of course, this

  conclusion does not protect either the seller or buyer from a charge

  that they conspired together to distribute drugs if the evidence

  supports a finding that they shared a conspiratorial purpose to


                                      21
  advance other transfers, whether by the seller or by the buyer.

  Parker, 554 F.3d at 235.

                                 C. Application

¶ 33   Nothing in the record suggests that Lucero and her coworker

  agreed and intended that Lucero would distribute the pills to

  others. For example, the record does not show — and the

  prosecution did not argue — that the amount of the controlled

  substance transferred each time was significant enough to permit

  the inference of further distribution. Instead, Lucero received only

  one pill every time. Cf. Parker, 554 F.3d at 238-39 (holding that

  buyer-seller exception did not apply where the defendants

  “purchased with such frequency and in such quantity” from sellers

  to support a finding that “sellers and buyers had joined in a

  cooperative venture, in which both . . . had a stake in additional

  transfers of drugs beyond the transfers from the original seller to

  the original buyer”); Flores, 149 F.3d at 1277 (holding that

  buyer-seller rule did not apply where the defendant “was not a

  street[-]level retail drug purchaser, he was a wholesale seller who

  knowingly helped supply large quantities of methamphetamine to a

  distribution organization”).


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¶ 34   In addition, Lucero indicated, without contradiction, that she

  consumed the pills to relieve her ailments. She described the

  typical exchange: “I [would] just go up and [the coworker] handed

  me a pill and I [would] just go back down to work and be able to

  stay at work the rest of the day.” In fact, the prosecutor in closing

  argument acknowledged that Lucero intended to take the pills

  herself: “She illegally conspires with [her coworker] to get the

  Tylenol 3. Why? Because the Tylenol 3 makes her feel good.”

¶ 35   As discussed, “[w]hen two parties are charged with agreeing to

  distribute drugs, evidence that the parties understood their

  transactions to do no more than support the buyer’s personal drug

  habit is antithetical to a finding of conspiracy.” Dekle, 165 F.3d at

  829-30 (explaining that multiple transactions which “revealed

  nothing more than isolated purchases for personal consumption” do

  not support a conspiracy conviction); see United States v. McIntyre,

  836 F.2d 467, 471-72 (10th Cir. 1987) (recognizing that the

  defendant’s multiple purchases of cocaine did not sufficiently prove

  that he “had a common purpose with his coconspirators to possess

  and distribute cocaine”). Accordingly, we conclude that the

  prosecution presented insufficient evidence to sustain Lucero’s


                                    23
  conspiracy conviction and that a judgment of acquittal must be

  entered on remand. See People v. Sprouse, 983 P.2d 771, 776

  (Colo. 1999).

¶ 36   Finally, we need not resolve the parties’ dispute over whether

  the Wharton rule applies here. The Wharton rule provides that

  “[a]n agreement by two persons to commit a particular crime cannot

  be prosecuted as a conspiracy when the crime is of such a nature

  as to necessarily require the participation of two persons for its

  commission.” People v. Bloom, 195 Colo. 246, 249, 577 P.2d 288,

  290 (1978) (citation omitted). This rule “has current vitality only as

  a judicial presumption, to be applied in the absence of legislative

  intent to the contrary.” Iannelli v. United States, 420 U.S. 770, 782

  (1975). But the narrower buyer-seller rule that we have discussed

  at length is sufficient to resolve this appeal. Although “[s]ome have

  thought [the buyer-seller rule] to follow from the so-called Wharton

  rule,” Moran, 984 F.2d at 1302, the numerous cases that we have

  cited in support of the buyer-seller rule do not rely on the Wharton

  rule or suggest that the two principles are necessarily intertwined.

  Indeed, the justification for the Wharton rule (“a crime legally

  requiring a plurality of actors . . . should not have a conspiracy


                                    24
  charge superimposed upon it,” id.) differs from the chief rationale

  underlying the buyer-seller rule (a mere buyer-seller relationship

  lacks the conspiratorial agreement to commit the same crime).6

¶ 37   In light of our disposition, we do not address Lucero’s other

  challenges to her conviction.

                             III.   Conclusion

¶ 38   The judgment is vacated, and the case is remanded for entry of

  a judgment of acquittal.

       JUDGE FURMAN and JUDGE MILLER concur




  6In any event, this case is distinguishable from People v. Bloom,
  195 Colo. 246, 577 P.2d 288 (1978), which held that the Wharton
  rule did not preclude the defendant’s conviction for conspiracy to
  sell illegal drugs. The defendant there was a seller not a mere
  acquirer, and he conspired with three other people to sell the drugs.
  See id. at 248-50, 577 P.2d at 290-91. Further, Bloom predated
  Colorado’s adoption of the Uniform Controlled Substances Act as
  well as the many cases discussing the buyer-seller rule.

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