| Davis, previously convicted of two state felonies, pleaded guilty as a felon in possession of a firearm, 18 U.S.C. 922(g)(1), 924(a)(2), and to possessing drugs with the intent to distribute, 21 U.S.C. 841(a)(1), (b)(1)(C). The presentence report noted pending drug and gun charges stemming from a separate 2015 state arrest. The district court sentenced Davis to 57 months in prison, to run consecutively to any sentences that the Texas courts might impose. Davis did not object. Davis appealed, arguing that his 2015 state offenses and his 2016 federal offenses were part of the “same course of conduct,” and that under the Sentencing Guidelines (1B1.3(a)(2), 5G1.3(c)), the sentences should have run concurrently. The Fifth Circuit refused to consider Davis’ argument, characterizing it as raising factual issues; in the Fifth Circuit “[q]uestions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” The Supreme Court vacated, granting a petition for certiorari and a motion for leave to proceed in forma pauperis. The Fifth Circuit’s “outlier practice” of refusing to review certain unpreserved factual arguments for plain error lacks a legal basis. Rule 52(b) states: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” Rule 52(b) does not immunize factual errors from plain-error review. Supreme Court precedent does not purport to shield any category of errors from plain-error review. |
