USA v. Marlon Fajardo

Filing

UNPUBLISHED OPINION FILED. [11-20403 Affirmed] Judge: JES , Judge: EMG , Judge: HRD. Mandate pull date is 05/07/2012 for Appellant Marlon Fajardo [11-20403]

Case: 11-20403

Document: 00511822213

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Date Filed: 04/16/2012

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

FILED
No. 11-20403
Summary Calendar

April 16, 2012
Lyle W. Cayce
Clerk

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
*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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