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17-1654 

United States v. Devost

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION 

TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED 

AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS 

COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT 

FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX 

OR AN ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A 

PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY 

NOT REPRESENTED BY COUNSEL. 

 At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, 

on the 21st of March, two thousand eighteen. 

PRESENT: 

DENNIS JACOBS,

RICHARD C. WESLEY, 

DEBRA ANN LIVINGSTON,

Circuit Judges. 

_____________________________________ 

UNITED STATES OF AMERICA, 

 Appellee, 

-v.- 17-1654 

DONOVAN DEVOST, 

 Defendant-Appellant. 

____________________________________ 

FOR DEFENDANT-APPELLANT: Marianne Mariano, Federal Public 

Defender's Office, Western 

District of New York, Buffalo, 

NY. 
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FOR APPELLEE: Mary C. Baumgarten, Assistant 

United States Attorney, for 

James P. Kennedy, Jr., United 

States Attorney for the Western 

District of New York, Buffalo, 

NY.

 

Appeal from a judgment of the United States District 

Court for the Western District of New York (Arcara, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the district court is 

AFFIRMED. 

Donovan Devost appeals from a judgment of the United 

States District Court for the Western District of New York 

(Arcara, J.) sentencing him to 85 months’ imprisonment for 

bank robbery. See 18 U.S.C. § 2113(a). We assume the 

parties' familiarity with the underlying facts, the 

procedural history, and the issues presented for review. 

Devost’s prior appeal challenged the original sentence 

as procedurally and substantively unreasonable. See United 

States v. Devost, 609 F. App’x 47 (2d Cir. 2015). We 

rejected as unavailing the bulk of Devost’s arguments, but 

we acknowledged that the one argument of possible merit 

amounted to a “collateral[] attack [on] a state-court 

conviction” that did not concern an alleged “violation of 

the right to counsel.” Id. at 47—48; see United States v. 

Sharpley, 399 F.3d 123, 126 (2d Cir. 2005). Accordingly, 

we affirmed Devost’s sentence, adding, however, that if 

Devost “successful[ly] . . . challeng[ed] his state 

sentence . . . in a state-court proceeding, he could then 

‘apply for reopening of his federal sentence’ under 28 

U.S.C. § 2255.” Devost, 609 F. App’x at 48 n.1 (quoting 

Daniels v. United States, 532 U.S. 374, 382 (2001)). 

Devost subsequently prevailed in state court and reopened 

his federal sentence. 

At resentencing, the criminal history category was 

reduced by one point, the revised guidelines range was 77 

to 96 months, and a within-guidelines term of 85 months was 
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imposed. The court considered, inter alia, Devost’s 

misconduct in prison to that point, including an incident 

in which he stabbed a fellow inmate. See Pepper v. United 

States, 562 U.S. 476, 503-05 (2011) (noting that a district 

court resentencing a defendant may consider the defendant’s 

post-sentencing misconduct). Devost challenges as 

procedurally and substantively unreasonable the court’s 

reliance on that factor. 

1. Devost argues that his sentence is procedurally 

unreasonable because “the district court relied on a single 

factor”--his misconduct in prison--“to the exclusion of all 

others.” Appellant’s Br. 12. In particular, Devost argues 

that the court failed to consider the context of his 

misconduct in prison (namely, that he was antagonized by 

other inmates) and his history of mental-health issues. 

This argument lacks support in the record. 

“[W]e presume, in the absence of record evidence 

suggesting otherwise, that a sentencing judge has 

faithfully discharged h[is] duty to consider the 

[necessary] factors.” United States v. Fernandez, 443 F.3d 

19, 30 (2d Cir. 2006), abrogated on other grounds by Rita 

v. United States, 551 U.S. 338 (2007). The record makes 

clear that the court considered the necessary factors, 

including the particular factors that Devost claims the 

court ignored. 

In articulating its assessment of Devost’s misconduct 

in prison, the court explicitly referenced “the 

justifications that [Devost’s counsel] . . . indicat[ed] 

may be the reason for those altercations.” App’x 103. And 

as to Devost’s purported history of mental-health issues, 

the court stated that it had “carefully considered the 

factors in 18 U.S.C. § 3553(a),” which include the 

defendant’s personal history and characteristics. Id. at 

102. 

A sentencing court is not required to “precisely 

identify either the factors set forth in § 3553(a) or 
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specific arguments bearing on the implementation of those 

factors in order to comply with [its] duty to consider 

[them].” Fernandez, 443 F.3d at 29 (emphasis removed). A 

court’s consideration can be “inferred by comparing what 

was argued by the parties . . . with what the [court] did.” 

Id. (internal quotation marks and citation omitted). The 

court heard extensive argument regarding Devost’s 

background and mental-health history. The court’s 

consideration of that history is manifested by the 

directive that the “commitment order shall reflect that 

[Devost] should be subject to . . . mental health 

evaluation when he returns to the Bureau of Prisons.” 

App’x 99; see also id. at 102 (“[T]he Court has considered 

. . . all the points raised by the defendant [and his] 

counsel.”). The court’s sentencing decision was therefore 

procedurally reasonable. 

2. Devost argues that his sentence is substantively 

unreasonable because the district court relied entirely on 

his misconduct in prison, and the weight of that “single 

factor . . . cannot support . . . the 85 month sentence 

imposed.” Appellant’s Br. 12. This argument is meritless 

because (as explained above) the district court considered 

all of the required factors--not just Devost’s misconduct. 

In any event, the weight accorded any single factor at 

sentencing “is a matter firmly committed to the discretion 

of the sentencing judge and is beyond our review, as long as 

the sentence ultimately imposed is reasonable.” United 

States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir. 2008) 

(internal quotation marks omitted). Nothing in the record 

suggests that Devost’s 85-month sentence--which is seven 

months shorter than the 92-month sentence we affirmed in 

his prior appeal--is “unacceptably harsh.” United States v. 

Friedberg, 558 F.3d 131, 137 (2d Cir. 2009). This is among 

“the overwhelming majority of cases [in which] a Guidelines 

sentence . . . fall[s] comfortably within the broad range 

of sentences that [are] reasonable.” Id. (internal 

quotation marks omitted). 
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We have considered Devost’s remaining arguments and 

find them to be without merit. For the foregoing reasons, 

we AFFIRM the judgment of the district court. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court