### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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 i m p r i sonment i m p o s e d f

o ll o w i n g hi s guilty-plea conviction o f m ultiple c ounts of drug traf f i c ki n g offenses, possession of a firearm in f urtherance of a drug trafficking crime, and possession of a firearm by a convicted felon. 18 U.S.C. §§ 2, 9 22(g)(1), 924(a)(2), 924(c)(1)(A); 21 U.S.C. §§ 8 41(a)(1), 843(b), 846. M i n go argues that t he sentence, which was an upward variance from the statutory minimum term and advisory guidelines range, was substantively unreasonable. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D October 24, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-31076 Document: 00512418515 Page: 1 Date Filed: 10/24/2013No. 12-31076

This c o urt r evi e w s a di s tri c t c o u rt ’ s s e nt e n c i n g d e c i sion f or reasonableness, under the abuse-of-discretion standard. Ga l l v. United States , 552 U.S. 3 8, 50-51 (2007); United States v. Cisneros-Gutierrez , 517 F

. 3 d 7 5 1 , 764 (5th Cir. 2008). “Appellate courts must first ensure that the district court c ommitted no significant procedural error.” Cisneros-Gutierrez , 517 F.3d at 764. Mingo does not argue that t he district court committed p r o c e d u r a l error. Where the sentence is pr o c e d u rally 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 t o assess whether the sentence unreasonably fails to reflect the 18 U.S.C. § 3553(a) f a c t o rs. 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 h is appellate challenge, plain error review would govern this appeal. See United States v. Peltier , 505 F.3d 389, 3 91-92 (5th Cir. 2007). Because the f ollowing analysis i ndicates that Mingo cannot prevail

even under the less deferential, abuse-of-discretion standard, it is unnecessary for this court to d etermine the st a n d a r d o f r eview. See United S tates v. Rodriguez , 523 F.3d 519, 525 (5th Cir. 2008). The record reflects that the district court appropriately r e l i e d upon the § 3553(a) sentencing factors i n determining that a n above-guidelines sentence

was warranted, including such considerations a s Mingo’s history and characteristics, the need for the sentence to r eflect the seriousness of t he offense and to promote respect for the law, the need to provide adequate deterrence to further criminal conduct, a nd the need to protect the p ublic from further crimes. See § 3553(a)(1); § 3553(a)(2)(A)

- (C). The senten c i n g d e c ision also reflects consideration o f t he kinds o f sentences available as w ell as t he advisory guidelines range. See § 3553(a)(3), (4). Mingo’s argument regarding t he c ir c u m stances of his upbringing a mounts to a mere disagreement with the weight t he district c o urt afforded t o the various
2 Case: 12-31076 Document: 00512418515 Page: 2 Date Filed: 10/24/2013No. 12-31076

sentencing factors, and such an argument does not warrant reversal. See Gall , 552 U.S. at 51. H is assertion that he was previously punished while imprisoned for p o ssession of a shank, a factor t hat the district court considered when imposing the variance, i s not persuasive given the extensive reasons the district court provided t o support its sentencing decision. See United States v. Scott , 654 F.3d 5 52, 555 (5th Cir. 2 011). Also, given the careful a ttention t h at 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. Se e § 3553(a)(1); U n ited S ta tes v . G u illerm o -B a lleza , 6 1 3 F

. 3 d 4 3 2 , 4 3 5 (5 th C i r. 2 0 1 0 )

. Moreover, the magnitude o f the v a r i a n ce is not unreasonable. See United States v . Jones , 444 F .3d 430, 4 33, 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 d i s t r i c t court abused its discretion i n i mposing an upward variance from the advisory guidelines range. See Gall , 552 U.S. at 51. AFFIRMED.

3 Case: 12-31076 Document: 00512418515 Page: 3 Date Filed: 10/24/2013