     Case: 13-40570      Document: 00512604105         Page: 1    Date Filed: 04/22/2014




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

                                                                               FILED
                                    No. 13-40570                           April 22, 2014
                                  Summary Calendar
                                                                          Lyle W. Cayce
                                                                               Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

SAMUEL FAJARDO-MENDEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:12-CR-1604-1


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Samuel Fajardo-Mendez (Fajardo) appeals the 70-month guideline
sentence imposed following his guilty plea to harboring undocumented aliens
in the United States for financial gain. Because Fajardo did not object to the
substantive reasonableness of the sentence in the district court, review is for
plain error. See United States v. Dunigan, 555 F.3d 501, 506 (5th Cir. 2009).
Under that standard, Fajardo has the burden of demonstrating error that is


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-40570      Document: 00512604105        Page: 2    Date Filed: 04/22/2014


                                    No. 13-40570

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, this court has
the discretion to correct the error only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”           See id. (internal
quotation marks and citations omitted).
      Fajardo maintains that his sentence was substantively unreasonable
because it was greater than necessary to provide adequate deterrence, protect
the public, or effectuate any of the other sentencing goals outlined at 18 U.S.C.
§ 3553(a). He further maintains that the district court’s erroneous imposition
of a U.S.S.G. § 2L1.1(b)(5)(B) four-level enhancement for brandishing a weapon
during the offense contributed to the substantively unreasonable sentence. 1
Although Fajardo challenged the finding that he brandished a weapon in the
district court, he concedes that it was not an abuse of discretion for the district
court to make such finding based on information contained in the presentence
report.   Fajardo also argues that the district court failed to consider the
significant hardship his sentence would have on his family.
      The district court’s comments during sentencing reflect that it properly
made an individualized assessment of the facts in the case by considering the
mitigating arguments of counsel and the 18 U.S.C § 3553(a) factors. See Gall
v. United States, 552 U.S. 38, 49-50 (2007). Moreover, the within-guidelines
sentence imposed by the district court is entitled to a rebuttable presumption
of reasonableness. See United States v. Jenkins, 712 F.3d 209, 214 (2013).
Fajardo has not rebutted the presumption because he has not shown that the
district court failed to consider a significant factor, considered an improper

      1   Fajardo’s total offense level was 21 (including four-level enhancement under
§ 2L1.1(b)(5)(B)), and his sentencing guideline range was 70-87 months. Fajardo does not
contest the calculation of the guideline range, or the procedural reasonableness of his
sentence, acknowledging instead that we have upheld § 2L1.1(b)(5)(B) enhancements in
similar circumstances as the case at bar.
                                              2
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                                No. 13-40570

factor, or committed a clear error of judgment in balancing the § 3553(a)
factors. See id. Fajardo therefore has not demonstrated that the district court
committed clear or obvious error in imposing the 70-month sentence. See
Jenkins, 712 F.3d at 214. Accordingly, the sentence is AFFIRMED.




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