United States v. Ferguson

Case: 22-10417 Document: 00516588550 Page: 1 Date Filed: 12/23/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10417
Summary Calendar FILED
December 23, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Darrius Ferguson,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CR-30-3
Before Smith, Dennis, and Southwick, Circuit Judges.
Per Curiam:*
Darrius Ferguson acted as a “pimp” for a minor victim (MV1),
working with his co-defendant, Qumain Black, and traveling with MV1 to
cities throughout Oklahoma and Texas so that MV1 could engage in
commercial sex work. Ferguson pleaded guilty to one count of conspiracy to
commit sex trafficking of a minor, 18 U.S.C. § 1594(c) (§ 1591(a)(1) & (b)(2)).
*
This opinion is not designated for publication. See 5th Circuit Rule 47.5.
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No. 22-10417
He was sentenced to a within-guidelines sentence of 190 months of
imprisonment and a 10-year period of supervised release. His offense level
included a two-level enhancement for unduly influencing a minor to engage
in a prohibited sex act pursuant to U.S.S.G. § 2G1.3(b)(2)(B). Ferguson
contends the district court committed procedural error when it applied the
enhancement.
This court reviews the district court’s interpretation and application
of the Sentencing Guidelines de novo and its findings of fact for clear error.
See United States v. Serfass, 684 F.3d 548, 550 (5th Cir. 2012); see also United
States v. Delgado-Martinez, 564 F.3d 750, 752 (5th Cir. 2009) (recognizing
that the district court commits a procedural error if it miscalculates the
advisory guidelines range). “There is no clear error if the district court’s
finding is plausible in light of the record as a whole.” Serfass, 684 F.3d at 550
(internal quotation marks and citation omitted).
Section 2G1.3(b)(2)(B) provides for a two-level increase if “a
participant otherwise unduly influenced a minor to engage in prohibited
sexual conduct.” The enhancement “applies where ‘a participant’s
influence over the minor compromised the voluntariness of the minor’s
behavior.’” United States v. Smith, 895 F.3d 410, 417 (5th Cir. 2018) (quoting
§ 2G1.3, comment. (n.3(B))). A “participant” is defined as “a person who
is criminally responsible for the commission of the offense, but need not have
been convicted.” U.S.S.G. § 3B1.1, comment. (n.1); see § 2G1.3, comment.
(n.1). Where a participant in the offense is at least 10 years older than the
minor, there is a rebuttable presumption that the enhancement applies.
§ 2G1.3, comment. (n.3(B)).
While Ferguson admits that the rebuttable presumption of undue
influence applied to Black, he argues that there was insufficient evidence to
apply the enhancement based on his own conduct, and that the record
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No. 22-10417
showed that MV1 was predisposed to engage in prostitution on her own
accord. Ferguson’s argument fails for two reasons. First, the record reflects
that Ferguson exercised sufficient undue influence over MV1 to support the
enhancement based solely on his own conduct. See Serfass, 684 F.3d at 550;
United States v. Anderson, 560 F.3d 275, 283 (5th Cir. 2009); United States v.
Pringler, 765 F.3d 445, 456 (5th Cir. 2014).
Second, even if Black alone unduly influenced MV1, § 2G1.3(b)(2)(B)
applies based on the conduct of any offense participant. The rebuttable
presumption applies to Black, who is over 10 years older than MV1, and
Ferguson did not offer any evidence to rebut the presumption of undue
influence. Ferguson does not dispute that Black was a participant in the
offense and, in fact, urges that his own role in the operation was minimal
relative to Black’s role in the “prostitution activities.” Thus, Ferguson does
not deny that Black unduly influenced MV1 to engage in sex work, a
conclusion supported by the record; nor does he contend that Black’s
conduct was outside the scope of or not in furtherance of their joint criminal
undertaking or that it was not reasonably foreseeable in connection with the
offense. See U.S.S.G. § 1B1.3(a)(1)(B). Accordingly, there was no error in
applying the undue influence enhancement to Ferguson. See Smith, 895 F.3d
at 417.
AFFIRMED.
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