United States Court of Appeals 

for the Fifth Circuit 

No. 21-30602 

Summary Calendar 

United States of America, 

Plaintiff—Appellee, 

versus

Devonte Oshay Gater, 

Defendant—Appellant. 

Appeal from the United States District Court 

for the Western District of Louisiana 

USDC No. 3:20-CR-168-1 

Before Barksdale, Costa, and Engelhardt, Circuit Judges.

Per Curiam:*

Devonte Oshay Gater pleaded guilty to possession of a firearm by a 

convicted felon, in violation of 18 U.S.C. § 922(g)(1). He was sentenced to, 

inter alia, an above-Sentencing Guidelines term of 70 months’ imprisonment. 

*

 Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

June 13, 2022 

Lyle W. Cayce 

Clerk 

Case: 21-30602 Document: 00516354686 Page: 1 Date Filed: 06/13/2022
No. 21-30602 

2 

Gater claims his 70-month sentence, an upward variance from the 

advisory Guidelines sentencing range of 51 to 63 months, is substantively 

unreasonable. In support, he contends: the district court erred in relying on 

his criminal history as a basis for deviating from the Guidelines sentencing 

range because criminal history and the other 18 U.S.C. § 3553(a) sentencing 

factors relied on by the court were accounted for by the computation of the 

Guidelines sentencing range; and the court’s balancing of the § 3553(a) 

factors was tainted by its misunderstanding that Gater would automatically 

receive credit for the time he had spent in federal pretrial custody. 

Although post-Booker, the Sentencing Guidelines are advisory only, 

the district court must avoid significant procedural error, such as improperly 

calculating the Guidelines sentencing range. Gall v. United States, 552 U.S. 

38, 46, 51 (2007). If no such procedural error exists, a properly preserved 

objection to an ultimate sentence is reviewed for substantive reasonableness 

under an abuse-of-discretion standard. Id. at 51; United States v. DelgadoMartinez, 564 F.3d 750, 751–53 (5th Cir. 2009). In that respect, for issues 

preserved in district court, its application of the Guidelines is reviewed de 

novo; its factual findings, only for clear error. E.g., United States v. CisnerosGutierrez, 517 F.3d 751, 764 (5th Cir. 2008). 

The court explained at sentencing that it imposed an upward variance 

because a within-Guidelines range sentence would not achieve the goals of 

the § 3553(a) sentencing factors. The court focused on Gater’s criminal 

record, which began when he was a juvenile, by: reciting the facts underlying 

his prior convictions for battery, robbery, burglary, and theft; and 

commenting on his tendency towards recidivism, noting “the only time he 

was not committing crimes was when he was in jail”. Although the prior 

convictions referenced by the court received criminal-history points, it is 

well-settled that a district court may afford additional weight to a relevant 

§ 3553(a) factor, even if it is already accounted for under the Guidelines. 

Case: 21-30602 Document: 00516354686 Page: 2 Date Filed: 06/13/2022
No. 21-30602 

3 

E.g., United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008) (explaining 

“sentencing court is free to conclude that the applicable Guidelines range 

gives too much or too little weight to one or more factors”); United States v. 

Brantley, 537 F.3d 347, 350 (5th Cir. 2008) (recognizing “district court may 

rely upon factors already incorporated by the Guidelines to support a nonGuidelines sentence”). 

Gater further asserts the court’s giving, according to Gater, too much 

weight to his criminal history was compounded by its misunderstanding 

regarding whether Gater would receive credit for time spent in pretrial 

federal custody. After defense counsel explained Gater would not 

automatically receive such credit, the court clarified it would not reduce the 

70-month sentence because Gater’s prior criminal offenses warranted a nonGuidelines sentence. 

AFFIRMED. 

Case: 21-30602 Document: 00516354686 Page: 3 Date Filed: 06/13/2022