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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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




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