United States v. Devaney
In United States v. Devaney, —- F.4th —-, No. 23-10480 (5th Cir. July 22, 2024), the Fifth Circuit affirmed the defendant’s drug-trafficking conviction and his 480-month prison sentence. The court rejected Devaney’s arguments about his motion to suppress cell phone evidence, motion to suppress statements, and Sentencing Guidelines objections.
Background: After a drug deal gone bad, Devaney drove after two men, forced their vehicle to stop, and began shooting at them, injuring one and killing an innocent bystander. The next day, officers tried to stop Devaney’s vehicle. He led them on a high-speed chase for about two miles, then he fled on foot until he was arrested. After his arrest, Devaney admitted some crimes, but he denied firing a gun. Later, officers obtained warrants to search the vehicle and Devaney’s two cell phones.
Motion to Suppress Search: Devaney argued that the officer’s warrant affidavits were bare bones, so the good-faith exception should not apply and the searches of his car and his phones were unconstitutional. The Fifth Circuit rejected that argument, because “an affidavit is not bare bones merely because it fails to establish probable cause” (emphasis in original). That description only applies if an affidavit contains “wholly conclusory statements … “devoid of the facts and circumstances from which a magistrate can independently determine probable cause” (quoting United States v. Morton, 46 F.4th 331, 336) (5th Cir. 2022) (en banc).
Motion to Suppress Statements: Devaney argued that officers violated his rights by continuing to question him after he made four requests for counsel. “But an accused’s invocation of his right to counsel must be unequivocal and unambiguous. See Berghuis v. Thompkins, 560 U.S. 370, 380–82 (2010).” The Fifth Circuit found that all four of Devaney’s requests was insufficiently unequivocal and ambiguous.
Devaney “mentioned an attorney when officers began asking about the drug deal. But, when officers then asked whether he was invoking his right to counsel, he answered ‘[n]ot yet . . . I’m not asking for an attorney yet.’
He “asked whether the officers would call [a specific attorney], stating that he wanted [that man’s] advice. [He] then clarified that he wanted merely to call [the attorney] ‘as a friend’—without hiring him as his attorney—and without ending the interview.”
He “asked again whether there was ‘a way to talk to my attorney without ending the interview.’ The officers answered in the negative.”
Finally, he “asked a third time whether he could call [the attorney] as a friend. The officer responded that he would not allow [Devaney] to make phone calls at that time. [Devaney] then indicated that he wanted to continue providing information and consented to searches and forensic testing.”
In each instance, the Fifth Circuit concluded that Devaney “failed properly to invoke his right to counsel.”
Guidelines Issue: Devaney objected to three parts of his Sentencing Guidelines calculation, but “none of his challenges matter[ed] if [USSG] § 2D1.1’s cross-reference to [USSG] § 2A1.1 applies.”
Guideline 2D1.1 applies in drug cases, but 2A1.1 applies to murder. The former directs courts to apply 2A1.1 if “a victim was killed under circumstances that would constitute murder under 18 U.S.C. § 1111.” Here, “the identity of the shooter who fired the shot that killed the innocent bystander is unknown,” but “ample evidence shows that it was [Devaney] or his co-conspirators, as all shot at the buyers’ vehicle.”
“Moreover, the pursuit and shooting are consistent with the purposes of the drug transaction,” so they were properly considered “relevant conduct” for Devaney’s drug-trafficking conviction.
Cautionary Note: In the opening brief, Devaney’s counsel raised two specific objections to the Sentencing Guidelines issue. But after receiving the Government’s response to those arguments, Devaney’s “reply brief never respond[ed] to the government’s contentions on this issue. Accordingly, he … waived any issue on appeal with respect to the cross reference’s applicability. See Duncan v. Wal-Mart La., L.L.C., 863 F.3d 406, 408 n.2 (5th Cir. 2017) (stating that failing to address appellees’ responsive contentions in reply briefing is tantamount to abandonment).