                                                         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.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                     USDC No. 1:02-CR-279-ALL
                       --------------------

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this opinion should not be published and is not precedent except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.
