Does plain error review apply to unobjected to factual determinations?

QUESTIONS PRESENTED A district court’s factual determinations are generally reviewed for clear error. In rejecting petitioner’s appeal in this case, the Second Circuit adopted a rule that the failure to object to a district court’s factual finding necessarily results in a determination that no clear error occurred. Such a holding jettisons Olano’s plain error standard as applied to factual determinations an untenable result that is inconsistent with both logic, the plain language of Rule 52(b), Fed.R.Crim.P. and the prior holdings of this Court. The Second Circuit likewise erred when it upheld the district court’s substantial upward variance based on its determination that petitioner’s conduct caused non-economic harms to alleged victims of petitioner’s fraud offense even though there was no proof that these individuals suffered those harms as a result of petitioner’s conduct rather than the 2008 Global Financial Crisis. This petition raises two issues for this Court’s consideration: 1. Does plain error review apply to unobjected to factual determinations? 2. Can an upward variance be based on non-economic losses to victims that were not established by a preponderance of the evidence? 1