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U.S. Supreme Court Rejects Fifth Circuit’s Rule Barring Plain-Error Review of Unpreserved Factual Arguments

In an opinion that amounted to just three paragraphs, the Supreme Court of the United States held on March 23, 2020, that the Fifth Circuit’s rule barring plain error review for unpreserved factual errors had “no legal basis,” and the Court vacated the lower court’s decision and remanded for review in the first instance.

When Charles Davis was convicted of drug and firearm charges after his 2016 arrest in Dallas, Texas, he was sentenced to just under five years in federal prison. But the judge ordered that sentence to run consecutively to whatever sentence the Texas state court would impose for offenses that occurred a year earlier. Davis never objected to his sentence.

Instead, on appeal to the U.S. Court of Appeals for the Fifth Circuit, Davis raised for the first time that the district judge should have run the sentences concurrent because the offenses were of the “same course of conduct” as provided under United States Sentencing Guidelines (“USSG”). Under USSG § 5G1.3(c), a federal sentence must run concurrent with any future state sentence “that is relevant conduct to the instant offense of conviction under ... § 1B.1.3 (relevant conduct).”

But the Court of Appeals refused to hear Davis’ claim. It said he was raising a factual issue, and it invoked the Fifth Circuit’s longstanding rule barring plain error review for factual issues. Davis appealed to the Supreme Court, which granted his petition for discretionary review.

Federal Rule of Criminal Procedure 52(b) states in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The Fifth Circuit has long held that factual issues raised for the first time on appeal don’t fall under Rule 52(b). United States v. Lopez, 923 F.2d 47 (5th Cir. 1991).

The Supreme Court rejected the Fifth Circuit’s rule. “Almost every other Court of Appeals conducts plain-error review of unpreserved arguments, including unpreserved factual arguments,” the Court said in a short per curiam opinion. The text of Rule 52(b) does not immunize factual errors from plain-error review, and Supreme Court precedent does not shield any category of errors from plain-error review, the Court explained in rejecting the Fifth Circuit’s “outlier practice.”

“Put simply, there is no legal basis for the Fifth Circuit’s practice of declining review to certain unpreserved factual arguments for plain error,” the Court concluded.

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Related legal case

Davis v. United States



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