                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 February 28, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 05-20722
                           c/w No. 05-20741
                           Summary Calendar


UNITED STATES OF AMERICA,

                                     Plaintiff-Appellee,

versus

JOHN BUFORD FRAZIER,

                                     Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                      USDC No. 4:04-CR-354-2
                       --------------------

Before DeMOSS, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

     John Buford Frazier was convicted for possessing a firearm

as a convicted felon under 18 U.S.C. § 922(g)(1) and § 924(a)(2).

In the first of two consolidated appeals, No. 05-20722, he

challenges the district court’s revocation of his pre-trial bond.

We lack jurisdiction to consider his claims because the issues

raised are moot.   See Fassler v. United States, 858 F.2d 1016,

1017-18 (5th Cir. 1988).    The appeal is therefore DISMISSED.




     *
       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this opinion should not be published and is not precedent except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.
                             Nos. 05-20722
                           c/w No. 05-20741
                                  -2-

     In the second of Frazier’s appeals, he challenges his

conviction and the 71-month sentence he received.    First he

asserts that the district court erred in including his 1983 Texas

conviction for burglary in determining his criminal history

score.    Frazier was paroled on the 1983 conviction in 1987.   The

following year, he was convicted of aggravated robbery and

imprisoned in Colorado.    In 1989, his parole on the 1983

conviction was revoked, and his sentence was not discharged until

1991.    Frazier asserts that, because he was already in prison in

Colorado at the time his parole on the 1983 conviction was

revoked, the Colorado imprisonment did not “result from” the 1983

conviction for purposes of counting it toward his criminal

history under U.S.S.G. § 4A1.2(e)(1).    We rejected such an

argument in United States v. Ybarra, 70 F.3d 362, 366-67 (5th

Cir. 1995).

     Next Frazier asserts that the district court erred in

denying his motion to dismiss the indictment.    The Sixth

Amendment requires that an indictment (1) enumerate each prima

facie element of the charged offense; (2) fairly inform the

defendant of the charges filed against him; and (3) provide the

defendant with a double jeopardy defense against future

prosecutions.     United States v. Gaytan, 74 F.3d 545, 551 (5th

Cir. 1996).     The elements of the offense under § 922(g)(1) are

that the defendant have a prior conviction “in any court of[] a
                            Nos. 05-20722
                          c/w No. 05-20741
                                 -3-

crime punishable by imprisonment for a term exceeding one year.”

§ 922(g)(1).

     The indictment does not specify the predicate offense for

the charge against Frazier, although it does state that it was a

crime of violence.    Frazier asserts that his 1988 Colorado

conviction cannot serve as the predicate offense.    Assuming

arguendo that he is correct, he has another prior conviction for

a crime of violence, his 1983 conviction for burglary of a

habitation in Texas.    Accordingly, the district court did not err

in denying Frazier’s motion.

     Finally, Frazier asserts that the disparity between his 71-

month sentence and the 21-month sentence his co-defendant

received for the same conduct violates his rights under the Due

Process Clause.    We review the district court’s sentencing

decision for unreasonableness, with our inquiry guided by the

considerations set forth in 18 U.S.C. § 3553(a).    United States

v. Smith, 440 F.3d 704, 706 (5th Cir. 2006).    Subsection (a)(6)

requires the sentencing court to consider the disparity in

sentences among defendants who have been found guilty of similar

conduct only where the defendants have “similar records.”

§ 3553(a)(6).    Thus, § 3553(a)(6) concerns “the need to avoid

disparity among similarly situated defendants nationwide rather

than disparity with [a defendant’s] differently-situated

co-defendant.”    United States v. Duhon, 440 F.3d 711, 721 (5th

Cir. 2006), petition for cert. filed (May 18, 2006) (05-11144).
                            Nos. 05-20722
                          c/w No. 05-20741
                                 -4-

Even before § 3553 came into effect with the Sentencing Reform

Act of 1984, see Mistretta v. United States, 488 U.S. 361, 367-68

(1989), we had held that a disparity between co-defendants’

sentences does not violate the Due Process Clause where the

greater sentence is based upon, inter alia, the defendant’s

character and background.   United State v. Lucio, 394 F.2d 511,

511-12 (5th Cir. 1968).

     Frazier’s sentence was the result of his extensive criminal

record, and his counsel admitted during the sentencing hearing

that Frazier was different from his co-defendant and that “you

just can’t treat everybody equally.”   The disparity between the

co-defendants’ sentences here is not unreasonable, and it does

not violate the protections of the Due Process Clause.

     The judgment of the district court is AFFIRMED.
