USA v. Maryann Martinez-Saldivar

Filing

UNPUBLISHED OPINION FILED. [09-40855 Affirmed] Judge: EHJ , Judge: TMR , Judge: CH. Mandate pull date is 10/26/2010 for Appellant Maryann Martinez-Saldivar [09-40855]

USA v. Maryann Martinez-Saldivar

Doc. 0

Case: 09-40855

Document: 00511254243

Page: 1

Date Filed: 10/05/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-40855 October 5, 2010 Lyle W. Cayce Clerk U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. M A R Y A N N MARTINEZ-SALDIVAR, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 2:07-CR-410-1

B e fo r e JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges. P E R CURIAM:* M ary a n n Martinez-Saldivar appeals her sentence imposed upon revocation o f her probation. She contends that the district court violated 18 U.S.C.

§ 3582(a) by considering her medical and psychological needs as a basis for im p o s in g an above-guidelines term of 18 months of imprisonment. Because M a r t i n e z -S a ld iv a r did not raise this issue in the district court, the plain error s t a n d a r d of review is applicable. See United States v. Weatherton, 567 F.3d 149, 1 5 2 (5th Cir. 2009).

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

Case: 09-40855

Document: 00511254243 Page: 2 No. 09-40855

Date Filed: 10/05/2010

T o show plain error, the appellant must show (1) a forfeited error (2) that is clear or obvious and (3) that affects her substantial rights. Puckett v. United S ta te s , 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this c o u r t has the discretion to correct the error but only if it seriously affects the fa ir n e s s , integrity, or public reputation of judicial proceedings. Id. A legal error is not clear or obvious if it is subject to reasonable dispute. See United States v. R o d r ig u e z -P a r r a , 581 F.3d 227, 230 (5th Cir. 2009), cert. denied, 130 S. Ct. 1544 (2 0 1 0 ). We need not decide whether the district court violated § 3582(a) because a n y such error would not have been clear or obvious. See United States v. P e ltie r , 505 F.3d 389, 393 (5th Cir. 2007); United States v. Pena, 125 F.3d 285, 2 8 8 (5th Cir. 1997); United States v. Giddings, 37 F.3d 1091, 1094-97 (5th Cir. 1 9 9 4 ); see also United States v. Ellis, 564 F.3d 370, 378 (5th Cir.), cert. denied, 1 3 0 S. Ct. 371 (2009). A c c o r d in g ly , the judgment of the district court is AFFIRMED.

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