Whether the absence of a binding, on-point decision of either this Court, or of the reviewing court of appeals, is enough to preclude the potential for error to be 'plain' within the meaning of Federal Rule of Criminal Procedure 52(b)

In United States v. Olano, 507 U.S. 725 (1993), this Court held that an appellate court’s discretion to correct unpreserved errors under Federal Rule of Criminal Procedure 52(b) is governed by a four -prong test. If a defendant establishes (1) “error,” that is (2) “plain,” and that (3) “affect[s] substantial rights,” then the court of appeals “should correct” the error if it (4) “seriously affects the fairness, integrity or public reputation of judicial proceedings.” 507 U.S. at 732, 736. An error is “plain,” under prong two, if it is “‘clear’ or, equivalently, ‘obvious’ . . . under current law.” Id. at 734. The Fifth Circuit has long adhered to a uniquely restrictive approach to Olano’s plainness prong. In that court, the absence of binding, on -point case authority— i.e., a decision of the Fifth Circuit, or of this Court, resolving the precise legal issue underlying a claim of error —is regularly taken as dispositive proof that the error cannot be plain under Rule 52(b). In every other circuit with criminal jurisdiction, in contrast, the lack of a binding case on point is relevant to, but not dispositive of, the plainness inquiry—una mbiguous text, a rule or principle that this Court or the reviewing circuit has recognized in an analogous context, or consensus among the on-point decisions of sibling circuits , all may make the law , and the claimed deviation from it, sufficiently clear to permit plain-error relief. This case illustrates the difference. In Ball v. United States, 470 U.S. 856 (1985), this Court held that convicting a defendant for receiving and possessing the same firearm run afoul of the Double Jeopardy Clause by cumulatively punishing the same conduct in greater and lesser -included offenses. All six circuits to have resolved the issue have uniformly held that Ball compels the same conclusion as applied to separate convictions based on the act of recei ving and continuously possessing the same child pornograph y. And five of those circuits first did so on plain -error review . Petitioner urged the Fifth Circuit to notice the exact same error as plain in light of Ball and the out-of-circuit consensus on that very issue . Following its outlier practice, the Fifth Circuit held that “the lack of binding authority as to th[at] issue,” alone, foreclosed this constitutional violation from qualifying as “plain” error . The question presented is: Whether the absence of a binding, on-point decision of either this Court, or of the reviewing court of appeals, is enough to preclude the potential for error to be “plain” within the meaning of Federal Rule of Criminal Procedure 52(b).