### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-20403 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff-Appellee

v. MARLON FAJARDO, also known as Christopher Sebastian Rodriquez-Mendez, Defendant-Appellant

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:10-CR-785-1

Before SMITH, GARZA, and DeMOSS, Circuit Judges. PER CURIAM: * Marlon Fajardo appeals the consecutive 10- and 16-month prison sentences imposed following his guilty plea convictions for falsely and willfully representing himself as a United States citizen and social security n u mb er fraud. He argues that his consecutive sentences are procedu r ally and substantively unreasonable. First, Fajardo contends that his sentences are procedurally unreasonable because the district court fa i l e d t o a rticulate any reasons in open court for its U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D April 16 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-20403 Document: 00511822213 Page: 1 Date Filed: 04/16/2012No. 11-20403

sentencing decision. F ajardo’s general objection to the procedural reasonableness of his sentences was insufficient to preserve this claim of error. See United States v. Dunigan , 555 F.3d 501, 506 (5th Cir. 2009). Fajardo “could have asked the district court for further explanation during the sentencing hearing, but did not.” See United States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th Cir. 2009). Accordingly, as to this claim of error, plain error review applies. To prevail under plain error review, Fajardo must show a forfeited error that is clear or obvious and affects his substantial rights. See Puckett v. United States , 556 U.S. 129, 135 (2009). When these elements are shown, this court has the discretion to cor r e c t the error only if it “seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id

. (internal quotation marks, citation, and brackets omitted). Reviewing the adequacy of the district court’s reasons in the context of the full sentencing hearing, we find no reversible plain error. See United States v. Gore , 298 F.3d 322, 324–26 (5th Cir. 2002). Prior to imposing Fajardo’s sentences, the court adopted the presentence report, which included a summary of Fajardo’s instant offense and his criminal history. See id

. at 325–26 & n.3. The court then engaged both the Federal Public Defender and the Government in a colloquy that implicitly indicated the reaso n s f o r it s sentencing decision, including its concerns about the nature and circumstances of Fajardo’s instant offense, the dangers of identity theft, and the underrepresentation of Fajardo’s criminal history. See id. at 325. Additionally, the court’s statement of reasons clarified both the nature of Fajardo’s sentences, as imposed outside of the Sentencing Guidelines system, and the grounds for the court’s sentencing decision, thus permitting effective appellate review. See United States v. Allison , 447 F.3d 402, 407 n.12 (5th Cir. 2006). There is nothing in the record to suggest that Fajardo’s sentence would have been any different if the court had provided additional reasons for its choice
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of sentence. Cf. Mondragon-Santiago , 5 6 4 F

. 3d at 364–65 (reviewing withinguidelines sentence). Moreover, the court’s explanation in its written statement of reasons “would render remand a meaningless formality.” See Gore , 298 F.3d at 325. Fajardo next argues that the district court committed procedural error by relying on unsupported assumptions that he used the identity of a United States

c itizen to open a line of credit and obtain employment. The district court included these findings in its written statement of re a s o n s, which was issued four days after the sentencing hearing. Because Fajardo had no opportunity to object to these findings, the plain error standard does not apply to our review of this claim of error . Se e U n ited States v. Bigelow , 462 F.3d 378, 381 (5th Cir. 2006).The presentence report reflects that Fajardo used a citi z e n ’ s identity to

o b t ain a credit card and secure a Texas driver’s license to drive his employer’s truck. Fajardo offered no evidence to rebut these findings. See United States v. Nava , 624 F.3d 226, 230–31 (5th Cir. 2010), cert. denied , 131 S. Ct. 2945 (2011). In light of this evidence, Fajardo has not shown that the district court’s factual finding that he used a citizen’s identity to open a line of credit is c l e a rl y
erroneous. See id. at 229. Fajardo has likewise failed to show the district c o urt c o m mitt e d p ro c e dur al

error by selecting a sentence based, in part, on a finding that he used a citizen’s identity to obtain employment. A “sentencing cou r t is permitted to make

common-sense inferences from the circumstantial evidence.” United States v. Caldwel l , 4 4 8 F

. 3 d 287, 292 (5th Cir. 2006). Fajardo sought a job or position with his employer that he could not otherwise ob t a i n w ithout using a citizen’s identity. Accordingly, he has not shown, in light of the record as a whole, that the district court’s finding was clearly erroneous. See Nava , 624 F.3d

. at 229. Finally, Fajardo argues that his sentences are s ub s t antively unreasonable because they are greater than necessary to effectuate the purposes of sentencing
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and because the court made a clear error of judgment in b a lancing the sentencing factors of 18 U.S.C. § 3553(a) by giving additional weight to factors already included in his offense level calculati o n s. Fajardo’s objection to the court’s sentences as “greater than necessary to comply with [§] 3553(a)” was sufficient to preserve a claim of error as to the substantive reasonableness of his sentences. See Mondragon-Santiago , 564 F.3d at 360–61. When imposing a non-guidelines sentence, distric t c o u rts may give additional weight “to factors included in calculating t he applicable advisory Guidelines range, since to do otherwise would essentially render the Guidelines mandatory.” United States v. Williams , 517 F.3d 801, 809 (5th Cir. 2008). In addition, district courts are “free to conclude that the a p p l i cable Guidelines range gives too much or too little weight to one or more factors,” and may adjust the sentence accordingly under § 3553(a). United States v. Lopez-Velasquez , 526 F.3d 804, 807 ( 5 t h C i r . 2008) (internal quotation marks and citation omitted). The district court thus di d n o t ab use its discretion in giving more weight to f actor s alre a dy inclu de d in th e c alculation of Fajardo’s advisory guidelines range. In support of its sentencing decision, the district court provided detailed

reasons b a s e d on the § 3553(a) factors. Moreover, the court was “in a superior position to find facts and judge their import under § 3553(a).” See Gall v. U.S. , 552 U.S. 38, 51 (2007) (internal quotation marks and citation omitted). Given the deference owed to a district court’s consideration of the § 3553(a) factors and

r e a sons for its sentencing decision, Fajardo has not shown that his sen t e n c e s
were greater than necessary t o e f f e ctuate the purposes of sentencing or represented an abuse of the district court’s discretion. See id. at 51–53; United States v. Smith , 440 F.3d 704, 708–10 (5th Cir. 2006). AFFIRMED.

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