United States v. Brandon Devos , 692 F. App'x 310 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-3358
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Brandon Devos
lllllllllllllllllllll Defendant - Appellant
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No. 16-3359
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Brandon Devos
lllllllllllllllllllll Defendant - Appellant
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Appeals from United States District Court
for the Northern District of Iowa - Cedar Rapids
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Submitted: May 8, 2017
Filed: May 18, 2017
[Unpublished]
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Before RILEY, BEAM, and SHEPHERD, Circuit Judges.
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PER CURIAM.
In December 2006, following a guilty plea to conspiracy to distribute heroin,
the district court1 sentenced Brandon Devos to 104 months' imprisonment followed
by a three-year term of supervised release. In November 2013, while Devos remained
in the custody of the Bureau of Prisons (BOP), he entered a residential reentry center
to serve the remainder of his prison term. In December 2013, after failing a breath
analysis, Devos escaped from BOP custody but was apprehended days later. In May
2014, Devos pled guilty to escape from custody and the district court sentenced him
to 21 months' imprisonment to be served consecutively to the undischarged portion
of his prior sentence, followed by a three-year term of supervised release to be served
concurrent with the term of supervised release from his 2006 conviction. In
November 2015, Devos returned to the residential reentry center and completed his
term of imprisonment without incident. In January 2016, Devos began serving his
two, concurrent, three-year terms of supervised release.
In June, the United States Probation Office (USPO) filed a petition to revoke
Devos's supervision, alleging that Devos violated the terms of his supervised release
in four respects: (1) failing to participate in substance-abuse testing; (2) using
methamphetamine; (3) associating with a felon or a person engaged in criminal
activity; and (4) lying to his probation officer. As to the first and second claims the
USPO alleged that Devos intentionally diluted his urine and then, after he was
enrolled in a sweat-patch testing program, his sweat patches tested positive for
methamphetamine. Devos admitted that he failed to participate in substance-abuse
testing, that he associated with one felon noted in the claims, and that he lied to his
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
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probation officer. Devos denied that he used methamphetamine despite the positive
results on the sweat patches.
At the revocation hearing, a nationally recognized expert on sweat-patch
testing, as well as two probation officers testified regarding the allegations of
supervised release violations at issue. The district court made factual findings that
Devos submitted two diluted urine samples, had positive sweat patches during three
time periods, associated with persons engaged in criminal activity as alleged, and
failed to truthfully answer inquiries by his probation officer. Having established the
allegations in the petition, the court discussed sentencing options, considered the 18
U.S.C. § 3553(a) factors, and held that a return to prison for twelve months followed
by a term of supervised release was the best course of action. In so holding the court
discussed Devos's "extremely serious" criminal history, the nature of his prior crimes,
his potential risk to others given evidence of his poor treatment of women especially,
his repeated drug use and violations, and his additional propensity to lie to the very
people tasked with monitoring his progress, among other listed factors.
Devos appeals the district court's revocation of his term of supervised release,
claiming that instead of revocation, a modification was the better course for the court,
allowing him to remain on supervised release but ordering him to attend more
intensive drug treatment. We review the district court's underlying factual findings
for clear error and its decision to revoke Devos's term of supervised release for an
abuse of discretion. United States v. Meyer, 483 F.3d 865, 868 (8th Cir. 2007). The
court abuses its discretion when it fails to consider a factor that should have received
significant weight, gives significant weight to an improper or irrelevant factor, or
makes a clear error of judgment. United States v. Goodon, 742 F.3d 373, 376 (8th
Cir. 2014). Devos does not argue that the district court failed to properly weigh
particular factors, nor does he claim that the charges were false, but rather he argues
that the court erred in its judgment to revoke Devos's supervised release instead of
merely modifying the terms of that release to include more intensive drug treatment.
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Despite the expert testimony regarding the positive methamphetamine tests,
which Devos did not challenge, he persistently maintains that methamphetamine use
is out of character for him and denies using methamphetamine. He is steadfast that
modification, not revocation, was the best course here. Devos is correct that various
concerns could equally support modification or revocation, but upon review of this
record, including the hearing transcript and the district court's colloquy, we conclude
the district court did not fail to consider a relevant factor that should have received
significant weight, give significant weight to an improper or irrelevant factor, or
commit a clear error of judgment in weighing those factors. There was certainly no
clear error in finding Devos violated the terms of his supervised release and at
bottom, given the weight we afford the determination of the district court, there was
no abuse of discretion in revoking Devos's supervised release. United States v.
Kobriger, 825 F.3d 495, 498 (8th Cir. 2016) ("The fact that this court [or certainly the
defendant himself] might reasonably have concluded that a different sentence was
better suited is assuredly insufficient to justify reversal of the district court under a
deferential abuse-of-discretion standard.")
We affirm.
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