IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-31076

Summary Calendar

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.

United States Court of Appeals

Fifth Circuit

F I L E D

October 24, 2013

Lyle W. Cayce

Clerk

* 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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