     Case: 17-40358      Document: 00514424838         Page: 1    Date Filed: 04/11/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 17-40358
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                          April 11, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

BYRION DEMECO FERGUSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                            USDC No. 4:15-CR-129-13


Before BENAVIDES, CLEMENT, and, GRAVES, Circuit Judges.
PER CURIAM: *
       Byrion Demeco Ferguson appeals his conviction and sentence for
conspiracy to manufacture, distribute, or possess with the intent to
manufacture or distribute 280 grams or more of a mixture or substance
containing cocaine base (crack) in violation of 21 U.S.C. §§ 841(b)(1)(A) and
846. The district court sentenced him within the guidelines range to 168
months of imprisonment. Ferguson argues that the district court clearly erred


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 17-40358

in denying him a mitigating role reduction under U.S.S.G. § 3B1.2, and that
there was insufficient evidence for the jury to find that he was responsible for
280 grams or more of crack cocaine.
Denial of § 3B1.2 Adjustment
      Whether a defendant was a minor or minimal participant is a factual
question that we review for clear error. United States v. Gomez-Valle, 828 F.3d
324, 328 (5th Cir. 2016). The evidence at trial established that Ferguson
conspired with several codefendants to sell crack cocaine on a daily basis over
the course of a two-year period. Although his codefendant, Quashay Coleman,
was the ostensible leader of the conspiracy and Ferguson took his direction
from her, that, in and of itself, does not provide a basis for § 3B1.2 mitigating
role adjustment. See United States v. Gomez-Valle, 828 F.3d 324, 331 (5th Cir.
2016). Indeed, despite the fact that there were several other members of the
conspiracy other than Ferguson and Coleman, Ferguson makes no effort to
satisfy his burden of establishing the culpability of an average participant and
that he was substantially less culpable than the average participant. See
United States v. Castro, 843 F.3d 608, 613 (5th Cir. 2016).
      The record establishes that Ferguson’s role in the conspiracy was more
than just peripheral. See Castro, 843 F.3d at 613. Accordingly, the district
court’s finding that Ferguson was not substantially less culpable than the
average participant was plausible in light of the record as a whole. § 3B1.2,
comment. (n.3(A)); see United States v. Torres-Hernandez, 843 F.3d 203, 207
(5th Cir. 2016).
Sufficiency of the Evidence
      Because Ferguson preserved the sufficiency issue at trial, our review is
de novo. United States v. Davis, 735 F.3d 194, 198 (5th Cir. 2013). In its
verdict, the jury found Ferguson guilty of conspiracy and made a separate



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finding that the quantity of crack cocaine that he was “accountable” for was
280 grams or more. Ferguson argues that the evidence was insufficient for a
rational jury “to find, beyond a reasonable doubt, that Ferguson was
accountable for 280 grams” or more of crack cocaine.
      “[A] defendant who participates in a drug conspiracy is accountable for
the quantity of drugs, which is attributable to the conspiracy and reasonably
foreseeable to him.” United States v. Haines, 803 F.3d 713, 740 (5th Cir. 2015)
(internal quotation marks and citation omitted).          The amount of drugs
reasonably foreseeable to the defendant includes “the amount which [the]
defendant knew or should have known was involved in the conspiracy.” Id.
(internal quotation marks and citation omitted).
      The Government presented evidence that Ferguson lived with Coleman
in her house and they, together, sold crack cocaine for at least one year. The
Government also presented evidence that Ferguson moved out of Coleman’s
house and moved into a nearby stash house where he sold crack cocaine—
supplied by Coleman—seven days a week for another year. Thus, the evidence
established that Ferguson was involved in the conspiracy for at least two years.
      Furthermore, Coleman testified that her supplier sold her crack cocaine
for resale during the approximate two-year period that Ferguson was involved
in the conspiracy. She testified that she purchased one-and-a-half to two
ounces from her supplier at a frequency of once to twice per week. Ferguson
often accompanied Coleman on her trips to purchase crack cocaine from her
supplier. Coleman, together with Ferguson, would cut up the crack cocaine
purchased from the supplier into smaller quantities, bag it, and sell the small
quantities. Given that one ounce is equivalent to approximately 28 grams,
even assuming that Coleman only purchased one ounce from her supplier once
a week—a conservative estimate based on the Government’s evidence—the



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                                  No. 17-40358

evidence established that Coleman purchased, at a minimum, 1,456 grams of
crack cocaine per year or 2,912 over a two year period. Even if the Government
did not present evidence that Ferguson had direct knowledge of every sale of
crack cocaine from Nelson to Coleman over the two-year span that he was
involved in the conspiracy, the evidence, viewed in the light most favorable to
the prosecution, was sufficient to allow a rational jury to reasonably infer that,
at a minimum, Ferguson should have known that 280 grams or more of crack
cocaine was involved in the conspiracy. See Haines, 803 F.3d at 740; United
States v. Lopez-Moreno, 420 F.3d 420, 437-438 (5th Cir. 2005); United States v.
Ayala, 887 F.2d 62, 67 (5th Cir. 1989).
      AFFIRMED.




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