IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 number

fraud. He argues that his consecutive sentences are procedurally and

substantively unreasonable. 

First, Fajardo contends that his sentences are procedurally unreasonable

because the district court failed to articulate any reasons in open court for its

United States Court of Appeals

Fifth Circuit

F I L E D

April 16, 2012

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. 11-20403

sentencing decision. Fajardo’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 correct 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 reasons for its 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, 564 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

citizen to open a line of credit and obtain employment. The district court

included these findings in its written statement of reasons, 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. See United States v. Bigelow, 462 F.3d 378, 381 (5th Cir.

2006).

The presentence report reflects that Fajardo used a citizen’s identity to

obtain 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 clearly

erroneous. See id. at 229.

Fajardo has likewise failed to show the district court committed procedural

error by selecting a sentence based, in part, on a finding that he used a citizen’s

identity to obtain employment. A “sentencing court is permitted to make

common-sense inferences from the circumstantial evidence.” United States v.

Caldwell, 448 F.3d 287, 292 (5th Cir. 2006). Fajardo sought a job or position

with his employer that he could not otherwise obtain without 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 substantively 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 balancing the

sentencing factors of 18 U.S.C. § 3553(a) by giving additional weight to factors

already included in his offense level calculations. 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, district courts may give

additional weight “to factors included in calculating the 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 applicable 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 (5th Cir. 2008) (internal quotation marks and citation omitted). 

The district court thus did not abuse its discretion in giving more weight to

factors already included in the calculation of Fajardo’s advisory guidelines range.

In support of its sentencing decision, the district court provided detailed

reasons based 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

reasons for its sentencing decision, Fajardo has not shown that his sentences

were greater than necessary to effectuate 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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