     Case: 16-11714      Document: 00514275258         Page: 1    Date Filed: 12/15/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                             United States Court of Appeals

                                    No. 16-11714
                                                                                      Fifth Circuit

                                                                                    FILED
                                  Summary Calendar                          December 15, 2017
                                                                               Lyle W. Cayce
UNITED STATES OF AMERICA,                                                           Clerk


                                                 Plaintiff-Appellee

v.

KYLE ROBERT MIETH, also known as “K-Wood”,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-120-2


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Kyle Robert Mieth appeals his 220-month, above-guidelines sentence
imposed following his guilty plea conviction for conspiracy to possess with
intent to distribute a controlled substance. For the first time on appeal, he
argues that the district court erred by (1) referencing his prior criminal
offenses, including those not resulting in a conviction, when imposing an


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11714   Document: 00514275258     Page: 2   Date Filed: 12/15/2017


                                  No. 16-11714

upward variance and (2) failing to address specifically the mitigating factors
offered by Mieth and instead focusing solely on his criminal history.
       In reviewing a sentence for reasonableness, we first examine whether
the district court committed any significant procedural error, including
“selecting a sentence based on clearly erroneous facts.” Gall v. United States,
552 U.S. 38, 51 (2007). In considering the procedural unreasonableness of a
sentence, we review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). However,
because Mieth did not preserve his appellate arguments, he must show a
forfeited error that is clear or obvious and that affects his substantial rights.
See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a
showing, we have the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
id.
       The sentencing court explicitly stated that it was considering the
mitigating factors set forth in Mieth’s objection to the presentence report, and
that consideration was reflected in the mental health aspects of the imposed
sentence. The district court properly considered Mieth’s prior criminal conduct
and the leniency of his prior sentences when determining the propriety of an
upward variance. See United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th
Cir. 2008); United States v. Brumfield, 558 F. App’x 489, 490 (5th Cir. 2014)
(relying on United States v. Lee, 358 F.3d 315, 328-29 (5th Cir. 2004)). Mieth
has failed to show any error, plain or otherwise.
       The judgment of the district court is AFFIRMED.




                                        2
