   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




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