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
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 onesixteenth 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 coconspirators 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 kilogram1The 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 coconspirators, 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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