     Case: 12-31076       Document: 00512418515         Page: 1     Date Filed: 10/24/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 24, 2013
                                     No. 12-31076
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ALVIN MINGO, also known as Nook Mingo,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:10-CR-222-2


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Alvin Mingo appeals the 18-year (216 months) term of imprisonment
imposed following his guilty-plea conviction of multiple counts of drug trafficking
offenses, possession of a firearm in furtherance of a drug trafficking crime, and
possession of a firearm by a convicted felon. 18 U.S.C. §§ 2, 922(g)(1), 924(a)(2),
924(c)(1)(A); 21 U.S.C. §§ 841(a)(1), 843(b), 846. Mingo argues that the sentence,
which was an upward variance from the statutory minimum term and advisory
guidelines range, was substantively unreasonable.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-31076

      This court reviews a district court’s sentencing decision for reasonableness,
under the abuse-of-discretion standard. Gall v. United States, 552 U.S. 38, 50-51
(2007); United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
“Appellate courts must first ensure that the district court committed no
significant procedural error.” Cisneros-Gutierrez, 517 F.3d at 764. Mingo does
not argue that the district court committed procedural error.           Where the
sentence is procedurally sound, this court considers the substantive
reasonableness of the sentence under the abuse of discretion standard. Gall, 552
U.S. at 51. Reasonableness review requires this court to assess whether the
sentence unreasonably fails to reflect the 18 U.S.C. § 3553(a) factors. United
States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      The Government argues that Mingo did not adequately preserve this issue
for appeal. If Mingo did not preserve his appellate challenge, plain error review
would govern this appeal. See United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). Because the following analysis indicates that Mingo cannot prevail
even under the less deferential, abuse-of-discretion standard, it is unnecessary
for this court to determine the standard of review.         See United States v.
Rodriguez, 523 F.3d 519, 525 (5th Cir. 2008).
      The record reflects that the district court appropriately relied upon the
§ 3553(a) sentencing factors in determining that an above-guidelines sentence
was warranted, including such considerations as Mingo’s history and
characteristics, the need for the sentence to reflect the seriousness of the offense
and to promote respect for the law, the need to provide adequate deterrence to
further criminal conduct, and the need to protect the public from further crimes.
See § 3553(a)(1); § 3553(a)(2)(A) - (C). The sentencing decision also reflects
consideration of the kinds of sentences available as well as the advisory
guidelines range. See § 3553(a)(3), (4).
      Mingo’s argument regarding the circumstances of his upbringing amounts
to a mere disagreement with the weight the district court afforded to the various

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                                  No. 12-31076

sentencing factors, and such an argument does not warrant reversal. See Gall,
552 U.S. at 51. His assertion that he was previously punished while imprisoned
for possession of a shank, a factor that the district court considered when
imposing the variance, is not persuasive given the extensive reasons the district
court provided to support its sentencing decision. See United States v. Scott, 654
F.3d 552, 555 (5th Cir. 2011). Also, given the careful attention that the district
court paid to Mingo’s particular facts and circumstances, his argument that his
sentence was not commensurate with his co-defendants is not persuasive, as the
record does not provide fact findings regarding whether his co-defendants were
similarly situated. See § 3553(a)(1); United States v. Guillermo-Balleza, 613
F.3d 432, 435 (5th Cir. 2010). Moreover, the magnitude of the variance is not
unreasonable. See United States v. Jones, 444 F.3d 430, 433, 442 (5th Cir. 2006);
United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005); United States v.
Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995). Accordingly, Mingo has not
shown that the district court abused its discretion in imposing an upward
variance from the advisory guidelines range. See Gall, 552 U.S. at 51.
      AFFIRMED.




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