A 2020 United States Supreme Court opinion in which the Court summarily reversed the Fifth Circuit’s “practice of refusing to review certain unpreserved factual arguments for plain error.”
United States v. Cristerna-Gonzalez, 962 F.3d 1253, 1262-63 (10th Cir. 2020):
Very recently a unanimous Supreme Court rejected the rule in [the Fifth] circuit that “questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” Davis v. United States, ___ U.S. ___, 140 S. Ct. 1060, 1061, 206 L.Ed.2d 371 (2020) (per curiam) (brackets and internal quotation marks omitted). The Supreme Court said that “[t]he text of [Federal Rule of Criminal Procedure] 52(b) does not immunize factual errors from plain-error review. Our cases likewise do not purport to shield any category of errors from plain-error review.” Id.
The Supreme Court was not saying, however, that plain error can be established by speculation about the facts. Plain error in this context will be uncommon. Perhaps, for example, a witness’s lack of expert qualifications will be clear from the record. The D.C. Circuit’s decision in United States v. Saro, 24 F.3d 283 (D.C. Cir. 1994), which was cited with apparent approval in Davis, is instructive. The court was considering an unpreserved challenge to the truth of the factual finding in the presentence report that the defendant had aided and abetted an uncharged drug sale by participating in the negotiations. The court rejected the proposition that such an unobjected-to error was immune from plain-error review. It explained:
We see no warrant for this categorical rule. To be sure, since the obviousness of an error is assessed from the sentencing court’s perspective, factual errors in pre-sentence reports may well tend to survive plain-error review more readily than legal errors. Pre-sentence investigators often have access to a much broader spectrum of information than the trial court itself, and so the fact that the trial record does not support a particular finding does not necessarily mean that the finding is inaccurate. Sentencing courts generally are entitled to rely on the unchallenged findings of pre-sentence reports. But at least when those findings are internally contradictory, wildly implausible, or in direct conflict with the evidence that the sentencing court heard at trial, factual errors can indeed be obvious.
Id. at 291 (emphasis added); see also Frost, 684 F.3d at 977 (“Some hearsay errors are blatant enough to warrant plain-error reversal even without much factual development, but such is not the case here.”). The court reversed and remanded for resentencing because the presentence report contained no evidence that the defendant was involved in the negotiation and such involvement was apparently contrary to trial testimony. See Saro, 24 F.3d at 291-92.