United States of America v. Travis Lawrence Ferguson

United States Court of Appeals
For the Eighth Circuit
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No. 21-1164
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Travis Lawrence Ferguson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Nebraska - Lincoln
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Submitted: November 18, 2021
Filed: April 4, 2022
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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KELLY, Circuit Judge.
A jury convicted Travis Lawrence Ferguson of conspiring to sell
methamphetamine. Finding sufficient evidence to support the conviction and no

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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-
1The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.
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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
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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
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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 minor
participant by any means.” Ferguson timely appealed.
II.
We review the district court’s evidentiary rulings for a prejudicial abuse of
discretion. United States v. Fechner, 952 F.3d 954, 958 (8th Cir. 2020); United States
v. Young, 753 F.3d 757, 767 (8th Cir. 2014). “[E]vidence of controlled drug buys
from co-conspirators may be admissible even when the buys did not involve the
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particular drug conspiracy defendant.” United States v. Espinoza, 684 F.3d 766, 778
(8th Cir. 2012). This is true because “[e]vidence of ‘reasonably foreseeable buys that
occurred on behalf of the conspiracy’ are relevant and admissible to ‘illustrate[] the
extent of the conspiracy’s operation.’” Id. (quoting United States v. Johnston, 353
F.3d 617, 624 (8th Cir. 2003) (per curiam)). Here, the challenged evidence stemmed
from reasonably foreseeable buys and aided in proving the extent of the conspiracy.
The drugs were purchased through a controlled buy from a known co-conspirator who
conducted drug sales using Ferguson’s cars and even received a ride from Ferguson
to a buy. We find no error in the district court’s admission of physical evidence of
sales by other co-conspirators.
We also find no abuse of discretion in the district court admitting evidence of
Ferguson’s pre-conspiracy October 2014 sale of 1.7 ounces of methamphetamine to
an undercover officer. Under Federal Rule of Evidence 404(b), “[e]vidence of any
other crime, wrong, or act is not admissible to prove a person’s character in order to
show that on a particular occasion the person acted in accordance with the character.”
Fed. R. Evid. 404(b)(1). But such “evidence may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). When otherwise
admissible, such evidence remains subject to exclusion “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. All
in all, “[t]he evidence must be ‘(1) relevant to a material issue; (2) similar in kind and
not overly remote in time to the crime charged; (3) supported by sufficient evidence;
and (4) higher in probative value than prejudicial effect.’” United States v. Walker,
470 F.3d 1271, 1274 (8th Cir. 2006) (quoting United States v. Strong, 415 F.3d 902,
905 (8th Cir. 2005)).
The evidence at issue was extremely close in time, identical in nature, and
directly relevant for nearly all of the purposes listed in Rule 404(b). Ferguson denied
selling drugs other than small quantities to friends and characterized himself as a drug
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user looking for a fix who helped police when he could. Two co-conspirators,
however, described Ferguson weighing out smaller quantities from a larger supply he
maintained for sale, just as described by the officer in the October 2014 sale.
Ybarra’s presence at the October 2014 transaction and Ferguson’s own references to
Ybarra concerning that transaction also demonstrate Ferguson’s knowledge generally
as to the structure and internal workings of an informal conspiracy. Further, to the
extent Ferguson’s defense depended on a narrative that characterized his drug
activities as personal in nature or as taken in furtherance of efforts to assist the police,
the October 2014 transaction was relevant to counter this position. Finally, we agree
with the district court that the contested evidence was not unduly prejudicial,
especially in light of the use of a limiting instruction.
Next, we conclude the evidence was sufficient to support the conviction. We
reverse a conviction only if, viewing the evidence in the light most favorable to the
verdict, “no reasonable jury could have found the defendant guilty beyond a
reasonable doubt.” United States v. King, 898 F.3d 797, 808 (8th Cir. 2018). For a
conspiracy charge, the government must prove (1) that there was a conspiracy,
(2) that the defendant knew about it, and (3) that he intentionally joined it. United
States v. Erickson, 999 F.3d 622, 629 (8th Cir. 2021). Ferguson’s challenge of his
conviction depends in large part on an impermissible reweighing of the evidence or
the incorrect assertion that his limited occasional assistance to police was somehow
inconsistent with a finding that he participated in the conspiracy. See United States
v. Reed, 972 F.3d 946, 952 (8th Cir. 2020) (explaining jury may base its verdict on
testimony of cooperating witnesses and court will not disturb jury’s credibility
assessments). The jury heard conflicting testimony from Ferguson and his co-
conspirators, but we cannot reweigh or reexamine the credibility of witnesses on
appeal. See Erickson, 999 F.3d at 630 (quoting United States v. White, 794 F.3d 913,
918 (8th Cir. 2015)).
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Finally, we find no abuse of discretion in the district court’s application of the
18 U.S.C. § 3553(a) factors and imposition of the 130-month sentence. See United
States v. Harrell, 982 F.3d 1137, 1141 (8th Cir. 2020) (standard of review). Ferguson
argues his sentence was disproportionate to his co-conspirators given his role in the
conspiracy. We find this argument to be meritless, however, as the district court
considered Ferguson’s role within the conspiracy as a whole and based the sentence
on an individualized application of the § 3553(a) factors. The district court exhibited
a keen understanding of the case, the defendant, and the defendant’s criminal history.
The district court carefully described the rationale for its sentence and acted within
its discretion by acknowledging Ferguson’s difficulty with drug abuse but choosing
to emphasize his history of violence. Id. (noting that a district court must consider,
but need not categorically rehearse, the § 3353(a) factors and retains wide latitude to
assign some factors greater weight than others).
For the foregoing reasons, we affirm the judgment of the district court.
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