Case: 14-20119 Document: 00512917827 Page: 1 Date Filed: 01/28/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-20119
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 28, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
DEVON MICHEL SPICER,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:10-CR-732-6
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Devon Michel Spicer and others were involved in a health care fraud
conspiracy. United States v. St. Junius, 739 F.3d 193, 197 (5th Cir. 2013). The
district court sentenced Spicer to three concurrent terms of 60 months of
imprisonment to be followed by three concurrent terms of three years of
supervised release. As a condition of supervised release, Spicer was to pay
$794,434.08 in restitution. On direct appeal, we affirmed Spicer’s convictions
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-20119 Document: 00512917827 Page: 2 Date Filed: 01/28/2015
No. 14-20119
and sentence in all respects, except the restitution order. St. Junius, 739 F.3d
at 214-215. We vacated Spicer’s term of supervised release and remanded for
resentencing on that point. On remand, Spicer submitted a memorandum in
mitigation of sentence seeking a downward departure from the sentencing
guidelines recommended range of imprisonment based on evidence of his post-
sentence rehabilitation. The district court considered the motion and then
reimposed all of the terms of the original sentence except the amount of
restitution was reduced to $653. No objection was made to the sentence.
Spicer now appeals the district court’s decision not to grant his motion in
mitigation.
Spicer argues that the district court did not consider adequately the
evidence of his rehabilitation efforts under the factors in 18 U.S.C. § 3553(a).
We review sentences pursuant to Gall v. United States, 552 U.S. 38, 51 (2007),
When, as in this case, a defendant fails to preserve a claim of error, however,
this court applies the plain error standard. United States v. Peltier, 505 F.3d
389, 391 (5th Cir. 2007). To the extent that Spicer raises a procedural issue by
contending that the district court did not consider his motion in mitigation and
supporting evidence, the record shows that this contention is false.
To the extent that Spicer argues that his sentence on remand was not
reasonable, sentences are reviewed for reasonableness in light of the
sentencing factors in 18 U.S.C. § 3553(a). United States v. Mares, 402 F.3d
511, 519-20 (5th Cir. 2005). Spicer has failed to allege any specific failure in
the district court’s consideration of any sentencing factor. Spicer’s arguments
do not show a clear error of judgment on the district court’s part in balancing
the § 3553(a) factors; instead, they constitute a mere disagreement with the
weighing of those factors. See United States v. Cooks, 589 F.3d 173, 186 (5th
Cir. 2009).
The judgment of the district court is AFFIRMED.
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