     14-2180
     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 “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 9th day of July, two thousand fifteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                DENNIS JACOBS,
 8                GUIDO CALABRESI,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12
13       United States of America,
14                Appellee,
15
16                    -v.-                                               14-2180
17
18       Donovan Devost,
19                Defendant-Appellant.
20
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR APPELLANT:                        MARIANNE MARIANO, Federal Public
24                                             Defender for the Western
25                                             District of New York, Buffalo,
26                                             New York.
27


                                                  1
 1   FOR APPELLEE:              STEPHAN J. BACZYNSKI, Assistant
 2                              United States Attorney (for
 3                              William J. Hochul, Jr., United
 4                              States Attorney for the Western
 5                              District of New York), Buffalo,
 6                              New York.
 7
 8        Appeal from a judgment of the United States District
 9   Court for the Western District of New York (Arcara, J.)
10
11        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12   AND DECREED that the judgment of the district court be
13   AFFIRMED.
14
15        Donovan Devost appeals from the judgment of the United
16   States District Court for the Western District of New York
17   (Arcara, J.), sentencing him to 92 months’ imprisonment for
18   bank robbery in violation of 18 U.S.C. § 2113(a). We assume
19   the parties’ familiarity with the underlying facts, the
20   procedural history, and the issues presented for review.
21
22        1. Devost argues that the sentence is procedurally
23   unreasonable because (a) the district court made two errors
24   in calculating his criminal history category, and (b) the
25   district court did not adequately explain its reasons for
26   denying his motion for a downward departure, and for
27   selecting a 92-month sentence.
28
29        a. Devost contends that his state sentence of
30   “conditional discharge” violated state law, and that the
31   district court therefore committed procedural error in
32   relying on this sentence in calculating his criminal history
33   points. Devost’s argument is appealing, especially because
34   the government appears to concede that the state-court
35   sentence was imposed in violation of state law.
36   Nevertheless, under binding precedent, a defendant may not
37   use a federal sentencing proceeding to collaterally attack a
38   state-court conviction (unless the state conviction was
39   obtained in violation of the right to counsel). See, e.g.,
40   Custis v. United States, 511 U.S. 485, 497 (1994); United
41   States v. Sharpley, 399 F.3d 123, 126 (2d Cir. 2005). That
42   rule forecloses Devost’s argument here, intuitive as it may
43   be.
44
45        We now turn to the juvenile confinement issue. The
46   government at oral argument did not seriously contest that
47   there was error on this question, as seems likely.

                                  2
 1   Nevertheless, any error in the district court’s application
 2   of U.S.S.G. § 4A1.2(d)(2)(A) was necessarily harmless
 3   because correcting the error would not change Devost’s
 4   criminal history category or the applicable guidelines
 5   range. United States v. Cramer, 777 F.3d 597, 603 (2d Cir.
 6   2015). There is, moreover, nothing in the record that
 7   suggests that the sentencing judge would have imposed a non-
 8   guidelines sentence. Accordingly, at this time, it would be
 9   inappropriate for us to remand to the district court for a
10   reconsideration of the sentence.
11
12        Given the likelihood that state-court error drove the
13   Guidelines calculation in this case, the outcome of this
14   appeal may seem harsh; but it does not leave Devost without
15   recourse.1
16
17        b. Devost also takes issue with the district court’s
18   explanation (or lack thereof) for denying his motion for a
19   downward departure and for selecting a 92-month sentence.
20   As to the downward departure, the district court is under no
21   obligation to provide a statement of reasons for refusing to
22   depart downwards. United States v. Lawal, 17 F.3d 560, 563
23   (2d Cir. 1994). As to the district court’s ultimate
24   decision to impose a 92-month sentence (at the bottom of the
25   guidelines range), the explanation was brief but sufficient.
26   The record supports no suggestion that the district court
27   materially misunderstood any fact or law. See, e.g., United
28   States v. Fleming, 397 F.3d 95, 100 (2d Cir. 2005).
29
30        2. Devost argues that his 92-month sentence is so long
31   as to be substantively unreasonable. The precise sentence
32   chosen by the district court, if within lawful bounds, is
33   reviewed only for an abuse of discretion. Gall v. United
34   States, 552 U.S. 38, 51 (2007). That highly deferential
35   standard “provide[s] a backstop for those few cases that,


         1
              If Devost is successful in first challenging his
     state sentence of conditional discharge in a state-court
     proceeding, he could then “apply for reopening of his
     federal sentence” under 28 U.S.C. § 2255. Daniels v. United
     States, 532 U.S. 374, 382 (2001); see also Johnson v. United
     States, 544 U.S. 295, 304 (2005) (describing this procedural
     path). At that point, of course, any error on the juvenile
     confinement issue would no longer be harmless as a matter of
     law, because correcting the error would result in a change
     to the guidelines range.
                                  3
 1   although procedurally correct, would nonetheless damage the
 2   administration of justice because the sentence imposed was
 3   shockingly high, shockingly low, or otherwise unsupportable
 4   as a matter of law.” United States v. Rigas, 583 F.3d 108,
 5   123 (2d Cir. 2009). The district court did not abuse its
 6   discretion in imposing a 92-month sentence, the bottom of
 7   the applicable guidelines range.
 8
 9                             *    *   *
10
11        For the foregoing reasons, and finding no merit in
12   Devost’s other arguments, we hereby AFFIRM the judgment of
13   the district court.
14
15                                 FOR THE COURT:
16                                 CATHERINE O’HAGAN WOLFE, CLERK
17




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