The Fifth Circuit Make Another Plain Error in Front of the Supreme Court

Based on a review of the case law in Bloomberg Law, the issues that the Fifth Circuit has refused to review even under the lenient “plain error” standard of Fed. R. Crim. P. 52(b) are varied.

No Review

The Fifth Circuit didn’t review Charles Earl Davis’s argument at all, because he failed to preserve it for appeal by giving the district court a chance to consider it. Most of the time, novel arguments on appeal are considered for “plain error” under Federal Rule of Criminal Procedure 52(b). But the Fifth Circuit refused to look at the argument at all because they characterized it as raising factual issues. Under Fifth Circuit precedent, therefore, not even a “plain error” review was necessary. “Questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error,” the Fifth Circuit had held.

The Supreme Court vacated the Fifth Circuit’s decision, noting that “almost every other Court of Appeals conducts plain-error review of unpreserved arguments, including unpreserved factual arguments.”

“Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error,” the Court said. It ordered the Fifth Circuit to try again, remanding for further proceedings.

Fifth Circuit Almost Alone

The Fifth Circuit’s opinion establishing that factual questions not raised at sentencing are waived, Lopez v. U.S., has been cited 135 times in the Fifth Circuit for this proposition…

(according to a review of opinions that cite this point of law in Bloomberg Law.)

The point has been cited once each by the First and Sixth Circuits, and five times by the Tenth (most recently in 2016). Accordingly, while the Tenth Circuit also holds that failure to develop a factual record at sentencing leaves the court with nothing to review…

this argument against even cursory review of factual substantive issues in criminal appeals occurs almost exclusively in the Fifth Circuit.

So Many Questions

During February 2020 alone, the Fifth Circuit issued three opinions refusing to review alleged problems with criminal sentencing based on Lopez. In one, the defendant contended that the district court miscalculated the amount of the loss attributable to her bank fraud and embezzlement. In a second, the defendant sought to challenge the amount of methamphetamine used in determining his sentence for conspiracy to import the drug. In the third, the defendant sought to challenge, among other things, how his criminal history was calculated for purposes of determining his sentence under the Guidelines.

Sentencing under the Guidelines is an inherently factual process—as it is meant to be. The Supreme Court’s clarification that Fed. R. Crim. P. 52(b) means that all substantive issues get at least a “plain error” review on appeal will provide a great deal more guidance at the appellate level on what is and isn’t permissible in sentencing in the Fifth Circuit. At a minimum, a lot more district court decisions under the Guidelines in the Fifth Circuit are about to face appeal.