Case: 09-40855 Document: 00511254243 Page: 1 Date Filed: 10/05/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 5, 2010
No. 09-40855
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARYANN MARTINEZ-SALDIVAR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:07-CR-410-1
Before JONES, Chief Judge, and REAVLEY and HAYNES, Circuit Judges.
PER CURIAM:*
Maryann Martinez-Saldivar appeals her sentence imposed upon revocation
of 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
imposing an above-guidelines term of 18 months of imprisonment. Because
Martinez-Saldivar did not raise this issue in the district court, the plain error
standard of review is applicable. See United States v. Weatherton, 567 F.3d 149,
152 (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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 09-40855 Document: 00511254243 Page: 2 Date Filed: 10/05/2010
No. 09-40855
To 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
States, 129 S. Ct. 1423, 1429 (2009). If the appellant makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, 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.
Rodriguez-Parra, 581 F.3d 227, 230 (5th Cir. 2009), cert. denied, 130 S. Ct. 1544
(2010). We need not decide whether the district court violated § 3582(a) because
any such error would not have been clear or obvious. See United States v.
Peltier, 505 F.3d 389, 393 (5th Cir. 2007); United States v. Pena, 125 F.3d 285,
288 (5th Cir. 1997); United States v. Giddings, 37 F.3d 1091, 1094-97 (5th Cir.
1994); see also United States v. Ellis, 564 F.3d 370, 378 (5th Cir.), cert. denied,
130 S. Ct. 371 (2009).
Accordingly, the judgment of the district court is AFFIRMED.
2