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 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.

United States Court of Appeals

Fifth Circuit

FILED

April 22, 2014

Lyle W. Cayce

Clerk

 

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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.

3

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