Cite as: 576 U. S. ____ (2015) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
ROY ELBERT CARLTON v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No.14–8740. Decided June 22, 2015
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR, with whom JUSTICE
BREYER joins, respecting the denial of certiorari.
The District Court enhanced petitioner Roy Carlton’s
sentence based on a factual inaccuracy introduced into the
sentencing record by the Government. The United States
Court of Appeals for the Fifth Circuit refused to review
Carlton’s appellate challenge to the enhancement, relying
on Circuit precedent holding that factual errors are never
cognizable on plain-error review. For the reasons that
follow, I believe the Fifth Circuit’s precedent is misguided.
Carlton was convicted by a jury of possessing marijuana
while incarcerated. The Probation Office prepared a pre-
sentence report recommending a two-level enhancement
of Carlton’s base offense level because the ultimate aim
of his crime was the distribution of a controlled sub-
stance in a prison. See United States Sentencing Com-
mission, Guidelines Manual §2D1.1(b)(4) (Nov. 2014). The
foundation for this enhancement was the Government’s
representation that Carlton’s girlfriend, Whitney Ander-
son, had testified at trial that Carlton intended to use the
marijuana to pay off a debt owed to another inmate. In
fact, Anderson said no such thing. The Government nev-
ertheless repeated its faulty assertion at sentencing, and
the District Court, which shared a similar misimpression
of Anderson’s testimony, imposed the enhancement and
sentenced Carlton to 27 months’ imprisonment.
Carlton challenged the sentencing enhancement before
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Statement of SOTOMAYOR, J.
the Fifth Circuit, citing the inaccuracy regarding Ander-
son’s testimony. The Government conceded its error, but
the Fifth Circuit rejected Carlton’s claim anyway. 593
Fed. Appx. 346 (2014) (per curiam). In light of defense
counsel’s failure to object at sentencing to the Govern-
ment’s characterization of the record, the court reviewed
Carlton’s argument under the plain-error standard. Id., at
348. The Fifth Circuit acknowledged that the record
“unambiguously” showed “Anderson never testified that
Carlton needed the marijuana to repay a prison debt,” and
that the District Court had therefore erred in supporting
the enhancement with her imagined statement. Ibid. The
court explained, however, that the District Court’s mis-
take was a mistake of fact. And under the Fifth Circuit’s
decision in United States v. Lopez, 923 F. 2d 47 (1991) ( per
curiam), such a factual error “ ‘can never constitute plain
error’ ” because it “could have been cured by bringing it to
the district court’s attention at sentencing.” 593 Fed.
Appx., at 349 (quoting Lopez, 923 F. 2d, at 50).
Judge Prado issued a concurring opinion. Although he
agreed that Lopez controlled Carlton’s case, Judge Prado
wrote separately to reiterate his view that Lopez was
wrongly decided. 593 Fed. Appx., at 349–352 (specially
concurring opinion).
I agree with Judge Prado. This Court has long held that
“[i]n exceptional circumstances, especially in criminal
cases, appellate courts . . . may, of their own motion, notice
errors to which no exception has been taken, if the errors
are obvious, or if they otherwise seriously affect the fair-
ness, integrity or public reputation of judicial proceed-
ings.” United States v. Atkinson, 297 U. S. 157, 160
(1936). The doctrine of plain error follows from the recog-
nition that a “rigid and undeviating judicially declared
practice under which courts of review would invariably
and under all circumstances decline to consider all ques-
tions which had not previously been specifically urged
Cite as: 576 U. S. ____ (2015) 3
Statement of SOTOMAYOR, J.
would be out of harmony with . . . the rules of fundamental
justice.” United States v. Olano, 507 U. S. 725, 732 (1993)
(internal quotation marks omitted). And in all the years
since the doctrine arose, we have never suggested that
plain-error review should apply differently depending on
whether a mistake is characterized as one of fact or one of
law. To the contrary, “[w]e have emphasized that a per se
approach to plain-error review is flawed.” Puckett v. United
States, 556 U. S. 129, 142 (2009) (internal quotation
marks omitted). The Fifth Circuit’s wooden rule that
factual mistakes cannot constitute plain error runs coun-
ter to these teachings.
Federal Rule of Criminal Procedure 52(b), which codifies
the common-law plain-error rule, similarly draws no
distinction between factual errors and legal errors. It
states: “A plain error that affects substantial rights may
be considered even though it was not brought to the
court’s attention.” Not “a plain legal error,” or “a plain
error other than a factual error”; all plain errors fall within
the Rule’s ambit. Courts must apply the Federal Rules
as they are written, see Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U. S.
163, 168 (1993), and no basis is apparent for reading into
Rule 52(b) an exception for factual errors.
Given its inconsistency with the governing text and
longstanding precedent, it is little wonder that no other
court of appeals has adopted the per se rule outlined by
the Fifth Circuit in Lopez.1* This lack of uniformity can
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* See, e.g., United States v. Thomas, 518 Fed. Appx. 610, 612–613
(CA11 2013) (per curiam) (applying plain-error review to asserted
factual error); United States v. Griffiths, 504 Fed. Appx. 122, 126–127
(CA3 2012) (same); United States v. Durham, 645 F. 3d 883, 899–900
(CA7 2011) (same); United States v. Sahakian, 446 Fed. Appx. 861, 863
(CA9 2011) (same); United States v. Romeo, 385 Fed. Appx. 45, 50 (CA2
2010) (same); United States v. Gonzalez-Castillo, 562 F. 3d 80, 83–84
(CA1 2009) (same); United States v. Sargent, 19 Fed. Appx. 268 (CA6
4 CARLTON v. UNITED STATES
Statement of SOTOMAYOR, J.
have important consequences for criminal defendants.
Indeed, Carlton’s case illustrates the potential inequity
caused by the Fifth Circuit’s outlier position on plain
error: All agree the District Court improperly relied on
testimony Anderson never gave. But in the Fifth Circuit—
and only the Fifth Circuit—that mistake cannot be re-
viewed and possibly corrected. As a result, Carlton may
spend several additional months in jail simply because he
was sentenced in Alexandria, Louisiana, instead of Alex-
andria, Virginia.
For all these reasons, I conclude that Lopez’s categorical
rule is unjustified. Nevertheless, I reluctantly agree with
the Court’s decision to deny certiorari in this case. The
Solicitor General informs us that the Fifth Circuit is at
times inconsistent in its adherence to Lopez. Compare
United States v. Akinosho, 285 Fed. Appx. 128, 130 (2008)
( per curiam) (applying Lopez), with United States v. Ste-
venson, 97 Fed. Appx. 468, 470 (2004) (per curiam) (ignor-
ing Lopez); see also United States v. Rodriguez, 15 F. 3d
408, 416, n. 10 (1994) (questioning whether Lopez survived
this Court’s decision in Olano). When that sort of internal
division exists, the ordinary course of action is to allow the
court of appeals the first opportunity to resolve the dis-
agreement. I hope the Fifth Circuit will use that opportu-
nity to rethink its approach to plain-error review.
——————
2001) (per curiam) (same); United States v. Wells, 163 F. 3d 889, 900
(CA4 1998) (same); United States v. Saro, 24 F. 3d 283, 291 (CADC
1994) (same). Of the remaining Courts of Appeals, it appears that only
the Tenth Circuit has articulated a rule for unraised factual errors
anything like the Fifth Circuit’s. See United States v. Overholt, 307
F. 3d 1231, 1253 (2002) (where defendant “fail[s] to raise his factual
challenge at sentencing” court will “consider the issue waived and will
not find plain error”). But even the Tenth Circuit’s rule is subject to an
exception in cases, like this one, where “the appellant can establish the
certainty of a favorable finding on remand.” United States v. Dunbar,
718 F. 3d 1268, 1280 (CA10 2013) (internal quotation marks omitted).