Whether the Fifth Circuit erred in refusing to review an unpreserved factual argument for plain error

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 the role adjustment request 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.” United States v. Bazan, 773 F. App’x 811 (5th Cir. 2019) (quoting United States v. Lopez, 923 F.2d 47, 50 (Sth Cir. 1991)). Mr. Bazan filed a petition for writ of certiorari with this Court. Bazan v. United States, 140 S. Ct. 2016 (2020) (mem.). Mr. Bazan argued the Fifth Circuit’s practice of refusing to review un-presented factual determinations was in conflict with the doctrine of plain error review. /d. While the petition was pending, this Court concluded “there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.” Davis v. United States, 140 S. Ct. 1060, 1061 (2020). Based on this holding, this Court granted Mr. Bazan’s petition for writ of certiorari, vacated the Fifth Circuit’s judgment, and remanded this case for further consideration in light of Davis. Bazan, 140 S. Ct. at 2016. On remand, the Fifth Circuit explained that review was for plain error. (