### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 40570 Summary Calendar

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 guilt y plea to harboring undocumented aliens in the United States for financial gain. Because Fajardo did not object to the substantive reasonableness of the se ntence in the district court, review i s 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 5 TH C IR

. R. 47.5 , the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED April 22, 2014 Lyle W. Cayce Clerk Case: 13-40570 Document: 00512604105 Page: 1 Date Filed: 04/22/2014No. 13

- 40570

clear or obvious and that a ffects 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 reputa tion of judicial proceedings. ” See id

. (intern al 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 outline d 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 cont ained in the presentence report. Fajardo a lso argues that the district court failed to consider the significant hardship his sentence would have on his family. T he district court ’s comments during sentencing reflect that it properly made an individualized assessment of the facts in the case by co nsidering 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, t he within

- guidelines sentence imposed by the district court is entitled to a rebuttable presumption of reas onableness. See United States v. Jenk ins, 712 F.3d 209, 214 (2013)

. Fajardo has not rebutted the presumption because he has not show n 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 Case: 13-40570 Document: 00512604105 Page: 2 Date Filed: 04/22/2014No. 13

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factor, or committed a clear err or of judgment in balancing the § 3553(a) factors

. See id

. Fajardo therefore has not demonstrated that the district court committed clear or obvious err or in imposing the 70

- month sentence

. See Jenkins , 712 F.3d at 214. Accordingly, the sentence is AFFIRMED.

3 Case: 13-40570 Document: 00512604105 Page: 3 Date Filed: 04/22/2014