Published on: Wednesday, March 25, 2020

On March 23, 2020, the Supreme Court issued a 3-page opinion in Davis v. United States, No. 19-5421 (Mar. 23, 2020) (per curiam), reversing the “Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments for plain error.”

Mr. Davis was sentenced to four years and nine-months in federal prison for federal gun and drug convictions, with his federal sentence to run consecutive to any sentences state courts might impose for other pending state court charges.  Mr. Davis did not object to the consecutive nature of his sentence in the district court.

On appeal, Mr. Davis argued his federal sentence should have been imposed concurrently to his state sentence as part of the “same course of conduct” under the Sentencing Guidelines.  Characterizing the argument as raising factual issues, the Fifth Circuit refused to consider the argument at all, even under plain-error review, relying on Fifth Circuit precedent that “[q]uestions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error review.” 

In vacating the Fifth Circuit’s judgment, the Supreme Court noted that “almost every other Court of Appeals conducts plain-error review of unpreserved arguments, including unpreserved factual arguments.”  The Court’s reasoning was short and sweet:

Rule 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 text of Rule 52(b) does not immunize factual errors from plain-error review.  Our cases likewise do not purport to shield any category of errors from plain-error review. See generally Rosales-Mireles v. United States, 585 U. S. ___ (2018); United States v. Olano, 507 U. S. 725 (1993). Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.

Briefing on the merits is available on the Supreme Court’s website here