Whether the Fifth Circuit erred in holding that a defendant's claim for a minor or mitigating role downward adjustment under the Sentencing Guidelines is not reviewable on plain error review

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 24 months to run concurrently with sentences imposed in separate drug/ failure to appear cases. On direct appeal, Mr. Bazan argued he should have received a minor or mitigating role downward adjustment under the Guidelines. 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 and held: “because this issue was a question of fact capable of resolution at sentencing, this ‘can never constitute plain error.” (