United States v. Brewer: Seventh Circuit Solidifies Post-Page Conspiracy Standard and Reaffirms Use of Acquitted Conduct at Sentencing

Introduction

The Seventh Circuit’s July 2025 decision in United States v. Frederick L. Brewer (No. 23-2138) addresses two recurring problems in federal narcotics litigation:

How to distinguish a genuine drug-distribution conspiracy from a mere “buyer-seller” relationship after the circuit’s watershed en banc ruling in United States v. Page, 123 F.4th 851 (7th Cir. 2024).
Whether, and to what extent, a sentencing judge may attribute drug quantities that the jury declined to find “beyond a reasonable doubt,” especially in light of the U.S. Sentencing Commission’s 2024 amendment curtailing the use of acquitted conduct.

Defendant-appellant Frederick Brewer, along with his brother Don James, Jr., was convicted of conspiring to distribute fentanyl tablets, possessing them with intent to distribute, and executing three separate sales. The jury, however, specifically found that the government had not proved that Brewer’s conspiracy or possession offenses involved 40 grams or more of fentanyl—the statutory threshold that triggers higher mandatory minimums. Undeterred, the district court attributed 1.2–4 kilograms of fentanyl to Brewer at sentencing, producing a guideline range of 360–1,800 months but ultimately imposing 144 months.

Brewer’s appeal centered on (1) sufficiency of the evidence and (2) the propriety of the district court’s drug-quantity calculation. The Seventh Circuit affirmed on all fronts, crystallising important doctrinal points that will guide future litigants and trial courts.

Summary of the Judgment

Writing for a unanimous panel, Judge Lee held:

Sufficiency of the Evidence. The record, when viewed in the light most favorable to the government, easily permitted a rational juror to find Brewer guilty of conspiracy, possession with intent, and three substantive distributions. The jury’s refusal to attribute ≥40 g to Brewer did not undermine the convictions because any quantity of a controlled substance suffices under 21 U.S.C. §§ 841(a) and 846.
Sentencing. Consistent with United States v. Watts, 519 U.S. 148 (1997), and existing Seventh Circuit precedent, the district court did not err in relying on a preponderance-based drug quantity that exceeded the jury’s special findings. The new 2024 Guidelines amendment forbidding reliance on acquitted conduct is forward-looking and did not apply retroactively to Brewer’s 2023 sentencing.
Result. Convictions and 144-month sentence affirmed.

Analysis

1. Precedents Cited

Jackson v. Virginia, 443 U.S. 307 (1979) & Musacchio v. United States, 577 U.S. 237 (2016)—articulate the stringent standard for overturning a jury verdict on sufficiency grounds.
Direct Sales Co. v. United States, 319 U.S. 703 (1943)—origin of the “informed and interested cooperation” test distinguishing conspiracy from a buyer-seller relationship.
United States v. Page, 123 F.4th 851 (7th Cir. 2024) (en banc)—overruled prior “rules-of-thumb” jurisprudence and held that repeated, distribution-level transactions alone may establish a conspiracy.
United States v. Vizcarra-Millan, 15 F.4th 473 (7th Cir. 2021)—earlier articulation of buyer-seller “rules of thumb,” now tempered by Page.
United States v. Watts, 519 U.S. 148 (1997)—permits sentencing courts to consider acquitted conduct proven by a preponderance of the evidence.
United States v. Robinson, 62 F.4th 318 (7th Cir. 2023) & United States v. Thurman, 889 F.3d 356 (7th Cir. 2018)—Seventh Circuit applications of Watts.

These authorities collectively guided the panel’s approach to both the substantive offenses and the sentencing phase.

2. Legal Reasoning

2.1 Conspiracy versus Buyer-Seller

Brewer argued that any dealings with his brother amounted merely to a buyer-seller relationship. The panel rejected this for several reasons:

Joint Venture Indicators. Brewer’s Facebook posts (“Got the percs”) immediately after James’s return from Arizona, his solicitation of customers, and explicit requests for new inventory (“Need 50 at least”) evidenced a common stake in distribution.
Coordinated Conduct. Brewer followed James’s instructions on how to hide drugs if arrested, and marked bills from Brewer’s sales were found in James’s safe—suggesting pooled profits.
Page Standard. Post-Page, the government no longer needs to check every “rule-of-thumb” box; repeated bulk transactions or proven joint activity can suffice in themselves. The panel expressly cited Page to reinforce this relaxed evidentiary threshold.

2.2 Possession with Intent & Distribution Counts

The defense’s attempt to trivialize Brewer’s social-media advertisements as “chatter” failed because:

The posts were corroborated by controlled buys, surveillance, and jail calls;
Phone and text records linked Brewer to customers and the middler;
Each element of § 841(a)(1) (knowledge, possession, intent) was independently supported by evidence the panel deemed “easily sufficient.”

2.3 Sentencing and Acquitted Conduct

Brewer’s sentencing argument pressed the tension between traditional Watts principles and the Sentencing Commission’s 2024 amendment to § 1B1.3. The panel resolved that tension by:

Noting that Brewer was sentenced in May 2023, long before the amendment’s November 1 2024 effective date (see § 1B1.11(a)).
Emphasizing that the district judge’s 1.2-4 kg finding rested on the same evidence that undergirded the conspiracy conviction; therefore, even under the new guideline, the conduct arguably “establishes, in whole or in part, the offense of conviction.”
Affirming that Watts remains binding Supreme Court precedent until overruled, so district courts may consider acquitted conduct proven by a preponderance.

Thus, the sentencing court’s drug-quantity determination was not “clearly erroneous.”

3. Potential Impact

Consolidation of Post-Page Doctrine. Trial courts within the Seventh Circuit now have an appellate decision applying Page to real-world facts. The opinion underscores that evidence of coordinated bulk purchases, shared profits, and marketing is enough—even absent credit sales or formal profit-sharing agreements.
Sentencing Practice. By reaffirming the viability of acquitted-conduct enhancements, the court preserves the status quo until either the Supreme Court revisits Watts or Congress/Commission make the 2024 amendment retroactive.
Strategic Considerations. Defense counsel should (a) anticipate that social-media boasting is potent circumstantial evidence, and (b) pursue downward variances premised on the new guideline amendment where clients were sentenced post-2024.
Preservation of Error. Brewer’s “futility” objection signals how litigants can preserve arguments for higher-court review even when circuit precedent is against them—important given the current Supreme Court interest in reassessing acquitted conduct.

Complex Concepts Simplified

Rule 29 Motion. A request for the judge to acquit the defendant because the prosecution’s evidence is too weak to sustain a conviction; judged under the strict “any rational juror” standard.
Buyer-Seller Exception. A legal doctrine that a mere purchase/sale relationship, without more, does not equal a conspiracy. After Page, the threshold for “more” is lower.
Relevant Conduct (§ 1B1.3). Activities related to, or part of, the offense that the court may consider when setting the guideline range, even if those acts were not charged or led to acquittal—unless the 2024 amendment applies.
Acquitted Conduct. Facts underlying charges on which the defendant was found “not guilty.” Under existing Supreme Court law, such facts may still influence sentencing if the judge finds them true by a “preponderance of the evidence.”
Preponderance Standard. More likely than not (i.e., > 50% probability). Lower than the “beyond a reasonable doubt” standard used at trial.
Guideline Range 360–1,800 Months. This sprawling range results from combining a base offense level of 32 (1.2–4 kg fentanyl) with various enhancements and Brewer’s criminal history. The judge’s 144-month sentence, while severe, was far below the top of that range.

Conclusion

United States v. Brewer is significant for two primary reasons. First, it operationalizes the Seventh Circuit’s en banc rejection of rigid “buyer-seller” heuristics, showing that modern conspiracy doctrine focuses on practical evidence of joint trafficking endeavors, however informal. Second, it reaffirmed—at least for defendants sentenced before November 2024—the continuing authority of district courts to consider acquitted conduct when applying the Guidelines.

Going forward, defense counsel must update their litigation strategies: rigorous challenges to conspiracy charges must grapple with Page, and sentencing submissions must spotlight the 2024 amendment where applicable. Prosecutors, meanwhile, will rely on Brewer to argue that coordinated marketing and profit-sharing suffice for conspiracy, and that relevant conduct remains a potent sentencing tool.

In the broader landscape, Brewer may serve as a touchstone case cited by both sides when arguing sufficiency and sentencing issues across the Seventh Circuit—and possibly as a springboard for national reconsideration of acquitted-conduct sentencing.