     Case: 09-50875     Document: 00511135638          Page: 1    Date Filed: 06/08/2010




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

                                                  FILED
                                                                            June 8, 2010
                                     No. 09-50875
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

ROSA ANNA TRINIDAD,

                                                   Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 4:07-CR-256-1


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Rosa Anna Trinidad challenges her sentence of 24-months’ imprisonment,
imposed upon revocation of her probation. Our court has declined to resolve
whether, following United States v. Booker, 543 U.S. 220 (2005), the
reasonableness standard of review applies to revocation sentences; we need not




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                 No. 09-50875

do so here, because, as Trinidad concedes, only plain-error review applies. See
United States v. Whitelaw, 580 F.3d 256, 260 (5th Cir. 2009).
       To establish reversible plain error, Trinidad must show the district court
committed a clear or obvious error that affected her substantial rights; even
then, we have discretion whether to correct such error and, generally, will do so
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings.   E.g., United States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008),
cert. denied, 129 S. Ct. 962 (2009).
      Trinidad contends the district court plainly erred in finding she continued
to use drugs and posed a danger to herself and others in the community. Had
Trinidad objected timely to these findings, the district court could have
ascertained pertinent facts.      In that regard, questions of fact capable of
resolution by the district court upon proper objection at sentencing can never
constitute plain error. United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).
In the light of the foregoing, Trinidad has not established clear or obvious error.
See Baker, 538 F.3d at 332; Lopez, 923 F.2d at 50.
      Trinidad also contends the court plainly erred in imposing a substantively
unreasonable sentence. She maintains that the above-Guidelines sentence of 24
months’ imprisonment was unreasonable because it overstated the seriousness
of her behavior. She asserts that her violations of her probation terms (failing
to report to her probation officer and failing to submit urine specimens) were
minor infractions.
      Although Trinidad’s 24-month sentence was in excess of the Guidelines
range of three to nine months’ imprisonment, it was within the statutory
maximum. See 18 U.S.C. §§ 4, 3565. Our court has routinely upheld probation-
revocation sentences that, as here, exceed the Guidelines range but are within
the statutory maximum. Whitelaw, 580 F.3d at 265. Trinidad has not shown
plain error as to this issue. See Baker, 538 F.3d at 332.



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                                No. 09-50875

      Finally, Trinidad, notwithstanding her above-described concession about
plain-error review, contends:    such review should not apply because she
requested a lower sentence in the district court; and, because reasonableness is
an appellate standard, no objection to either procedural or substantive
reasonableness need be made to preserve error. She acknowledges this issue is
foreclosed by our precedent but raises it for possible further review.
      AFFIRMED.




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