# 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* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 06/13/2022No. 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 devi ating 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 th e court’s balancing of the § 3553(a) factors was tainted by its misunderstan ding that Gater wo uld automatically receive credit for the time he had spen t 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 proced ural 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 applic ation 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 th at it imposed an upward variance because a within-Guidelines range sent ence would not achieve the goals of the § 3553(a) sentencing factors. Th e court focused on Gater’s criminal record, which began when he was a juven ile, by: reciting the facts underlying his prior convictions for battery, robbery, burglary, and theft; and commenting on his tendency towards re cidivism, noting “the only time he was not committing crimes was when he was in jail”. Al though the prior convictions referenced by the court rece ived criminal-history points, it is well-settled that a district court may a fford additional weight to a relevant § 3553(a) factor, even if it is alread y accounted for under the Guidelines. Case: 21-30602 Document: 00516354686 Page: 2 Date Filed: 06/13/2022No. 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 givi ng, 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 co unsel explained Gater would not automatically receive such credit, the court clarified it would not reduce the70-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