UNITED STATES v. LINDSEY (2019)

Dominic Lindsey pled guilty to being a felon in possession of a firearm and possessing with intent to distribute a controlled substance. He appeals the district court’s decision to run his 78-month, within-guidelines sentence consecutively to anticipated sentences on numerous pending state charges.

Lindsey’s unpreserved arguments challenging the consecutiveness of his sentence under U.S.S.G. § 5G1.3 raise fact questions pertaining to whether the conduct underlying his three previous arrests was sufficiently connected or related to the underlying offense so as to qualify it as relevant conduct under U.S.S.G. § 1B1.3. “Questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991).

Lindsey argues that other precedents undermine the Lopez holding regarding the impossibility of plain error as to fact questions. See United States v. Olano, 507 U.S. 725, 732-34, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en banc). Those decisions addressed only legal error and do not effectively overrule Lopez.

A significant indication of the acceptance of this standard is that, according to the Government’s brief in this appeal, this Circuit has applied Lopez over 100 times to resolve factual disputes. Without repeating the research, we have no reason to doubt the approximation. Further, our court has done more than just ritualistically repeat the standard. On occasion, panel members have engaged with its reasonableness. At some length, one judge explained why “plain error review should not be applied to ․ [a] purely factual determination,” while another judge in the same case took the opposite position. See United States v. Claiborne, 676 F.3d 434, 438-40 (5th Cir. 2012) (Jones, C.J., concurring); id. at 440-44 (Prado, J., concurring). Of fundamental importance, a panel has no authority to overturn this court’s precedent. See United States v. Walker, 302 F.3d 322, 324-25 (5th Cir. 2002).

Finally, this case is a poor vehicle for suggesting our well-settled rule creates unfairness. Which if any among Lindsey’s prior offenses were relevant conduct could easily have been addressed by the district court if an objection had been made. At most, what is missing from the record is an explanation. An objection should have been employed to prompt one.

AFFIRMED.

FOOTNOTES

FOOTNOTE.  

PER CURIAM:* FN* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.