United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 5, 2005
Charles R. Fulbruge III
Clerk
No. 05-50028
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MONICA TAMAYO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:02-CR-279-ALL
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Monica Tamayo appeals the sentence imposed following her
guilty plea to misprision of a felony. She argues that (1) her
base offense level was erroneously calculated under U.S.S.G.
§ 2X4.1 at level 32; (2) her base offense level was erroneously
enhanced pursuant to U.S.S.G. § 3C1.1 (2003); and (3) her
sentence contravened United States v. Booker, 125 S. Ct. 738
(2005).
*
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this opinion should not be published and is not precedent except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.
No. 05-50028
-2-
Tamayo did not object in the district court to the
calculation of her base offense level on the basis urged on
appeal, and, therefore, review is for plain error only. See
United States v. Mares, 402 F.3d 511, 520 (5th Cir. 2005),
petition for cert. filed No. 04-9517 (U.S. Mar. 31, 2005). Our
review of the record does not reveal error plain or otherwise.
We review the district court’s U.S.S.G. § 3C1.1 enhancement
for clear error. See United States v. Villanueva, 408 F.3d 193,
203 & n.9 (5th Cir. 2005). The record indicates that Tamayo’s
two-year flight to Mexico to avoid prosecution following her
arrest was “obstructive” conduct and not an ordinary case of
avoidance of arrest; therefore, the enhancement was not clearly
erroneous. See United States v. Phillips, 210 F.3d 345, 348 (5th
Cir. 2000); U.S.S.G. § 3C1.1, comment. (n.5(d)).
Finally, Tamayo’s Booker claim, raised for the first time on
appeal, does not survive plain error review because she cannot
show that her substantial rights were affected. See Mares,
402 F.3d at 520-21. The district court’s upward departure shows
that it was not influenced by any factors argued in mitigation
and that it chose the sentence it deemed appropriate under the
circumstances. Furthermore, its decision to upwardly depart was
discretionary. See United States v. Warters, 885 F.2d 1266, 1275
(5th Cir. 1989).
AFFIRMED.