Whether the Fifth Circuit erred in holding that a district court's failure to apply a minor or mitigating role adjustment under the Sentencing Guidelines can never constitute plain error on appeal

QUESTION PRESENTED FOR REVIEW Petitioner, JOSE ARMANDO BAZAN, was charged with and pleaded guilty to a single count of possession with intent to distribute cocaine. The District Court imposed a sentence of 119 months. On direct appeal, Mr. Bazan argued he should have received a minor or mitigating role downward adjustment under the Guidelines and that the sentence was unreasonable. Mr. Bazan agreed review was for plain error because he did not present these issues to the District Court. The Government responded that this claim was not reviewable on appeal because the issue of minor/mitigating role is a fact question. The United States Court of Appeals for the Fifth Circuit (“the Fifth Circuit”) agreed, stating that “question of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” (