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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-50875

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

June 8, 2010

Lyle W. Cayce

Clerk

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No. 09-50875

2

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 probationrevocation 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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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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