United States Court of Appeals

For the Eighth Circuit

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No. 16-3358

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United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brandon Devos

lllllllllllllllllllll Defendant - Appellant

___________________________

No. 16-3359

___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Brandon Devos

lllllllllllllllllllll Defendant - Appellant

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Appeals from United States District Court 

for the Northern District of Iowa - Cedar Rapids

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 Submitted: May 8, 2017

Filed: May 18, 2017

[Unpublished]

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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.

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PER CURIAM.

In December 2006, following a guilty plea to conspiracy to distribute heroin,

the district court sentenced Brandon Devos to 104 months' imprisonment followed 1

by a three-year termofsupervised release. In November 2013, while Devosremained

in the custody of the Bureau of Prisons (BOP), he entered a residential reentry center

to serve the remainder of his prison term. In December 2013, after failing a breath

analysis, Devos escaped from BOP custody but was apprehended days later. In May

2014, Devos pled guilty to escape from custody and the district court sentenced him

to 21 months' imprisonment to be served consecutively to the undischarged portion

of his prior sentence, followed by a three-year term ofsupervised release to be served

concurrent with the term of supervised release from his 2006 conviction. In

November 2015, Devos returned to the residential reentry center and completed his

term of imprisonment without incident. In January 2016, Devos began serving his

two, concurrent, three-year terms of supervised release. 

In June, the United States Probation Office (USPO) filed a petition to revoke

Devos's supervision, alleging that Devos violated the terms of his supervised release

in four respects: (1) failing to participate in substance-abuse testing; (2) using

methamphetamine; (3) associating with a felon or a person engaged in criminal

activity; and (4) lying to his probation officer. As to the first and second claims the

USPO alleged that Devos intentionally diluted his urine and then, after he was

enrolled in a sweat-patch testing program, his sweat patches tested positive for

methamphetamine. Devos admitted that he failed to participate in substance-abuse

testing, that he associated with one felon noted in the claims, and that he lied to his

The Honorable Linda R. Reade, Chief Judge, United States District Court for

1

the Northern District of Iowa.

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probation officer. Devos denied that he used methamphetamine despite the positive

results on the sweat patches. 

At the revocation hearing, a nationally recognized expert on sweat-patch

testing, as well as two probation officers testified regarding the allegations of

supervised release violations at issue. The district court made factual findings that

Devos submitted two diluted urine samples, had positive sweat patches during three

time periods, associated with persons engaged in criminal activity as alleged, and

failed to truthfully answer inquiries by his probation officer. Having established the

allegations in the petition, the court discussed sentencing options, considered the 18

U.S.C. § 3553(a) factors, and held that a return to prison for twelve months followed

by a term of supervised release was the best course of action. In so holding the court

discussed Devos's "extremely serious" criminal history, the nature of his prior crimes,

his potential risk to others given evidence of his poor treatment of women especially,

his repeated drug use and violations, and his additional propensity to lie to the very

people tasked with monitoring his progress, among other listed factors. 

Devos appeals the district court's revocation of his term of supervised release,

claiming that instead of revocation, a modification wasthe better course for the court,

allowing him to remain on supervised release but ordering him to attend more

intensive drug treatment. We review the district court's underlying factual findings

for clear error and its decision to revoke Devos's term of supervised release for an

abuse of discretion. United States v. Meyer, 483 F.3d 865, 868 (8th Cir. 2007). The

court abuses its discretion when it fails to consider a factor that should have received

significant weight, gives significant weight to an improper or irrelevant factor, or

makes a clear error of judgment. United States v. Goodon, 742 F.3d 373, 376 (8th

Cir. 2014). Devos does not argue that the district court failed to properly weigh

particular factors, nor does he claim that the charges were false, but rather he argues

that the court erred in its judgment to revoke Devos's supervised release instead of

merely modifying the terms of that release to include more intensive drug treatment.

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Despite the expert testimony regarding the positive methamphetamine tests,

which Devos did not challenge, he persistently maintains that methamphetamine use

is out of character for him and denies using methamphetamine. He is steadfast that

modification, not revocation, was the best course here. Devos is correct that various

concerns could equally support modification or revocation, but upon review of this

record, including the hearing transcript and the district court's colloquy, we conclude

the district court did not fail to consider a relevant factor that should have received

significant weight, give significant weight to an improper or irrelevant factor, or

commit a clear error of judgment in weighing those factors. There was certainly no

clear error in finding Devos violated the terms of his supervised release and at

bottom, given the weight we afford the determination of the district court, there was

no abuse of discretion in revoking Devos's supervised release. United States v.

Kobriger, 825 F.3d 495, 498 (8th Cir. 2016) ("The fact that this court [or certainly the

defendant himself] might reasonably have concluded that a different sentence was

better suited is assuredly insufficient to justify reversal of the district court under a

deferential abuse-of-discretion standard.")

We affirm.

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