Did the First Circuit err when it held Mr. Gotay-Guzman could not establish plain-error regarding the assessment of 2 criminal-history points for his Puerto-Rico convictions?

QUESTIONS PRESENTED According to his PSR, pursuant to USSG § 4A1.1(b), Mr. Gotay-Guzman earned 2 criminal history points due to a 6-month sentence he received in Puerto Rico for two prior misdemeanor convictions. Mr. Gotay-Guzman argued to the First Circuit that under the plain error standard he was not eligible for the 2-point assessment based on the language of Application Note 2 to § 4A1.1(b). Application Note 2 provides that “[clertain prior sentences are not counted or are counted only under certain conditions,” and that a “sentence for a foreign conviction, a tribal court conviction, an expunged conviction, or an invalid conviction, is not counted.” USSG § 4A1.1(b), Cmt., n.2. In a summary opinion, the First Circuit stated in a single paragraph that Mr. Gotay-Guzman could not meet the plain error standard because his argument was one of first impression, and absent clear and binding precedent, the First Circuit held there could be no plain error. In addition, the First Circuit rejected his argument based on a prior First Circuit decision involving a different guideline and standard that rejected an argument that convictions from Puerto Rico courts “cannot be counted in amassing [a defendant's] criminal history score.” Did the First Circuit err when it held Mr. Gotay-Guzman could not establish plain error regarding the assessment of 2 criminal history points for his Puerto Rico convictions? ii