United States v. Ferguson

• Decision Date: 04 April 2022
• Docket Number: No. 21-1164,21-1164
• Citation: 29 F.4th 998
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Travis Lawrence FERGUSON, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

29 F.4th 998

UNITED STATES of America, Plaintiff - Appellee

v.Travis Lawrence FERGUSON, Defendant - Appellant

No. 21-1164

United States Court of Appeals, Eighth Circuit.

Submitted: November 18, 2021

Filed: April 4, 2022

Sara Elizabeth Fullerton, Assistant U.S. Attorney, U.S. Attorney's Office, Lincoln, NE, for Plaintiff-Appellee.

Travis Lawrence Ferguson, pro se.

Douglas L. Kerns, Kerns Law Firm, Lincoln, NE, for Defendant-Appellant.

Before BENTON, KELLY, and ERICKSON, Circuit Judges.

KELLY, Circuit Judge.

A jury convicted Travis Lawrence Ferguson of conspiring to sell methamphetamine. Finding sufficient evidence to support the conviction and no abuse of discretion in the district court's¹ evidentiary rulings or sentencing determination, we affirm.

I.

Federal authorities charged Ferguson with conspiring to distribute and possessing with intent to distribute 500 grams or more of a mixture containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. Ferguson was among ten defendants alleged to be involved in trafficking methamphetamine in and around Lincoln, Nebraska, between January 2015 and April 2019. The other nine defendants pleaded guilty to related crimes and served as cooperating witnesses; Ferguson was the only defendant who went to trial. Prior to trial, Ferguson moved to exclude evidence that he had sold 1.7 grams of methamphetamine to an undercover officer and confidential informant (CI) in October 2014, approximately three months prior to the beginning of the charged conspiracy. Ferguson argued evidence of the pre-conspiracy controlled buy was inadmissible character evidence and unfairly prejudicial. The district court denied the motion.

At trial, co-defendants described the frequency and quantity of their own drug sales to, and purchases from, Ferguson in individual-sale amounts ranging from one-sixteenth of an ounce to quarter-pound quantities. Several saw Ferguson with larger amounts. One witness described providing to Ferguson a cumulative amount of two pounds, and another witness described providing over a pound. Many of the co-conspirators also witnessed sales between Ferguson and others. Co-defendants further described Ferguson's knowledge of, and relationships with, members of the conspiracy, including his knowledge of persons involved in pound- or kilogram- quantity out-of-state supply runs. Several of the co-conspirators testified specifically about fronting drugs to Ferguson, Ferguson's handling of distribution quantities, Ferguson's cutting of drugs for use or sale, and Ferguson's measuring of sale quantities out of larger supplies.

In addition, several co-defendants described assistance received from or offered by Ferguson, such as the use of his car for large and small transactions, help with collecting payment, and calls by Ferguson to arrange other sellers to provide methamphetamine. For example, co-defendant Anna Chernyy testified that she borrowed Ferguson's vehicle for drug sales and that Ferguson once drove her to a sale, which turned out to be to an undercover officer.

The government also called several law enforcement officers as witnesses at trial. The first officer testified that he arrested Ferguson for driving with a suspended license during the conspiracy and found a digital scale with methamphetamine residue in Ferguson's vehicle. This officer described Ferguson offering to identify persons in Lincoln with large quantities of drugs in exchange for being released with a warning. Two officers testified as to controlled buys from one of the co-conspirators. One of these officers identified Ferguson as the driver of a vehicle for a controlled buy, and the other officer described controlled buys outside Ferguson's apartment. Through these officers, the government introduced physical evidence including a digital scale, videos of controlled purchases, and the drugs themselves. Ferguson moved to exclude as irrelevant and unduly prejudicial the digital scale and drugs, but the district court denied the motion.

The officer involved in the pre-conspiracy October 2014 drug sale also testified. The officer testified that she set up the controlled purchase through a CI, and they met with Ferguson, who had a digital scale and a shard of crystal methamphetamine from which he weighed and sold a portion to the CI. The officer testified that a man named "Angel" was present during the buy. The district court gave a limiting instruction that the testimony describing the October 2014 drug sale could be considered "only to help you decide Mr. Ferguson's knowledge, intent, or state of mind with respect to the charged conspiracy."

Ferguson testified on his own behalf, denying much of the other conspirators’ testimony and asserting that his own involvement with drugs was limited to personal use or the sale or sharing of small quantities with friends or girlfriends. In addition, he emphasized his actual and attempted cooperation with law enforcement. Ferguson, in fact, offered several law enforcement officers as witnesses. The officers described Ferguson's assistance on past occasions. One of them described Ferguson as more of a "tipster" than a cooperator. In this regard, one of the co-conspirators, Lindsey Koch, also described Ferguson's prior interactions with United States Marshals. According to Koch, Ferguson provided both false and truthful information to marshals, using his communications with them to harm his competition and assist or protect his allies. On cross examination, Ferguson admitted that at the time of the October 2014 controlled buy, he "had an arrangement, ... an agreement with the CI to get dope from Angelo Ybarra ... so the CI could get some of that dope."

The jury found Ferguson guilty of conspiring to distribute less than 50 grams of a mixture or substance containing methamphetamine, rather than the larger amount that had been charged.

The Probation Office prepared a Presentence Investigation Report (PSR), which recommended a drug quantity for sentencing of over four kilograms based in large part on estimated amounts co-conspirators had described in transactions involving Ferguson. The PSR also recommended rejecting classification of Ferguson as a minor participant in the conspiracy. The PSR recommendations would have resulted in a total offense level of 32. Based on Ferguson's criminal history Category VI and the statutory maximum sentence of 20 years, the recommendations would have resulted in an advisory Guidelines sentencing range of 210 to 240 months of imprisonment.

Ferguson objected to the drug quantity and minor participant recommendations. The district court overruled his minor-role objection but sustained his objection to the drug quantity, finding the relevant drug quantity for sentencing purposes to be 50 grams, in accordance with the jury's verdict. Based on a total offense level of 22, Ferguson's advisory Guidelines range was 84 to 105 months. Ferguson moved for a downward departure and, in the alternative, a downward variance, arguing that his criminal history category overstated the seriousness of his actual criminal history. Ferguson also argued he deserved substantial credit for assisting law enforcement.

The district court denied Ferguson's motion for a downward departure. Applying the § 3553(a) factors, the district court imposed an above-range sentence of 130 months. In doing so, the district court expressly noted Ferguson's extensive criminal history and emphasized that several of Ferguson's prior convictions were for assault. The district court also addressed Ferguson's assistance to law enforcement, stating, "On some days, Mr. Ferguson wants to swim with the drug fishes .... On other days, he wants to be an informant and a buddy to either the [Lincoln Police Department] or deputy marshals .... In so many ways you do play both sides of the fence to cover your bases." Ultimately, the district court described Ferguson as a low-level drug user and a "wanna be," but concluded, "[h]e certainly wasn't a...