In Re Sealed Case

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 16, 2008 Decided January 16, 2009

No. 06-3082

IN RE: SEALED CASE
______

Appeal from the United States District Court
for the District of Columbia
(No. 04cr00390)
______

Beverly G. Dyer, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
Kristina L. Ament, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese III and Elizabeth H. Danello,
Assistant U.S. Attorneys.
Before: BROWN, Circuit Judge, and EDWARDS and
SILBERMAN, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
Concurring Statement filed by Senior Circuit Judge
EDWARDS, with whom Senior Circuit Judge SILBERMAN joins.
Dissenting opinion filed by Circuit Judge BROWN.
EDWARDS, Senior Circuit Judge: Appellant pled guilty to
maintaining a crack house, in violation of 21 U.S.C. § 856(a)(2),
and to possession of a firearm by a convicted felon, in violation
 2

of 18 U.S.C. § 922(g)(1). The District Court sentenced him to
a 97-month term of imprisonment under U.S.S.G. § 2D1.8(a)(1),
a provision of the United States Sentencing Guidelines
(“Guidelines”) that imposes a substantially higher base offense
level for persons convicted of maintaining a drug establishment
who are also found to have participated in the underlying drug
crime.
Appellant now challenges this sentence, arguing both that
the District Court erred in applying § 2D1.8(a)(1) to calculate
his base offense level, because there was insufficient evidence
in the record that he actually “participated” in the underlying
drug offense, and that his sentence is substantively
unreasonable. In addition, appellant requests that we remand his
case for resentencing in light of recent amendments to the
Guidelines that decrease the base offense levels for certain crack
cocaine offenses.
The parties suggest that, because he never objected to the
District Court that the evidence was insufficient to support its
reliance on § 2D1.8(a)(1), appellant’s claim on appeal must be
reviewed only for plain error under United States v. Olano, 507
U.S. 725 (1993), and its progeny. We need not reach this issue,
because the District Court in this case made no findings on
appellant’s participation in the underlying drug offense. The
Presentence Investigation Report (“PSR”) contained no factual
findings on appellant’s participation in the underlying drug
offense; the trial judge offered no findings on this crucial issue;
and appellant’s participation cannot be inferred from the sparse
record under review on appeal. In these circumstances, we are
constrained to remand the case to allow the District Court to
determine in the first instance whether the Government carried
its burden at sentencing and proved participation by a
preponderance of the evidence. See Pullman-Standard v. Swint,
456 U.S. 273, 291-92 & n.22 (1982) (remand appropriate where
 3

district court altogether fails to make findings or fails to make
findings with respect to a material issue).
On remand, if appellant files a motion pursuant to 18 U.S.C.
§ 3582(c)(2) for a reduced sentence, the District Court should
also consider in the first instance the applicability of the recent
amendments to the Guidelines relating to base offense levels for
crack cocaine offenses. Finally, because we remand for
resentencing, we do not reach appellant’s challenge to the
substantive reasonableness of his sentence.
I. BACKGROUND
On August 30, 2004, appellant was charged by information
with maintaining a crack house, in violation of 21 U.S.C.
§ 856(a)(2), and with possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). On September 13,
2004, appellant pled guilty to both counts pursuant to a written
plea agreement.
The proffer of facts supporting appellant’s guilty plea is
simple and straightforward. On June 4, 2003, officers of the
Metropolitan Police Department executed a search warrant at an
apartment leased by appellant. Though appellant shared the
apartment with his co-defendant, the two men had separate
bedrooms. Upon entering the apartment, the officers found the
co-defendant trying to step into the closet of his bedroom. The
officers’ search of the co-defendant’s bedroom closet revealed
35.3 grams of crack cocaine, a loaded Ruger .40 caliber
semiautomatic handgun, $676 in cash, a digital scale, identifying
documents, mail, a wallet, and a white plate with white rock
residue. In the dining room of the apartment, the officers found
a Pyrex measuring cup containing a white substance and a box
of rubber gloves. In appellant’s bedroom, the officers found a
triple-beam scale, a loaded Beretta 9-mm semiautomatic
handgun, a box of 9-mm ammunition, 63.25 grams of marijuana,
empty Ziploc bags, and Ziploc bags containing green, weed-like
 4

material. A search of appellant turned up $545 in cash.
Appellant’s fingerprints were later lifted from the plate with the
white rock residue found in his co-defendant’s bedroom closet.
At the plea hearing, appellant admitted that the factual
proffer was accurate. He also admitted that he knew that crack
was present in his apartment and that he allowed the crack to be
stored there. Plea H’rg Tr. at 30 (Sept. 13, 2004), reprinted in
Appellant’s Appendix (“App.”) at Tab 1.
Relying on the 2005 edition of the United States Sentencing
Commission Guidelines Manual, the PSR prepared by the
probation office calculated appellant’s base offense level under
U.S.S.G. § 2D1.8(a), the section of the Guidelines that governs
convictions for maintaining a drug establishment under 21
U.S.C. § 856(a)(2). For a defendant who also participated in the
underlying drug offense, § 2D1.8(a)(1) advises the sentencing
court to use the offense level for the relevant drug type and
quantity from U.S.S.G. § 2D1.1. See U.S.S.G. § 2D1.8(a)(1).
The guideline further advises that the offense level from § 2D1.1
should be reduced by four levels and capped at level 26 if the
defendant “had no participation in the underlying controlled
substance offense other than allowing use of the premises.”
U.S.S.G. § 2D1.8(a)(2). Although the PSR contained no factual
findings on appellant’s participation in the underlying drug
offense, it applied § 2D1.8(a)(1) and recommended a base
offense level of 30. See U.S.S.G. § 2D1.1(c)(5) (prescribing
base offense level of 30 for at least 35 grams of cocaine base).
The PSR recommended increasing the offense level by two
levels under § 2D1.1(b)(1), because appellant possessed a gun
in connection with a drug offense. The PSR also recommended
a two-level decrease for acceptance of responsibility under
U.S.S.G. § 3E1.1(a), resulting in a total offense level of 30.
Given appellant’s criminal history category of III, the applicable
Guidelines range was 121 to 151 months. After reviewing the
PSR, appellant’s counsel filed several sentencing memoranda
 5

with the District Court, in which he requested that appellant’s
offense level be determined in accordance with the Guidelines
for powder cocaine, rather than by applying the 100-to-one drug
quantity ratio between crack and powder cocaine then prescribed
by § 2D1.1.
At the April 19, 2006 sentencing hearing, the District Court
accepted the PSR. See Sentencing H’rg Tr. at 4-5, 32-33 (Apr.
19, 2006), App. at Tab 2. However, the District Court made no
mention of § 2D1.8(a)(1) and made no factual findings on
appellant’s participation in the underlying drug offense. Instead,
the trial judge offered the following observations:
Letting someone use your apartment to cook and store crack
cocaine for sale was no benign offense. That conduct
helped keep the most vulnerable and helpless among us
strung out on poison. And keeping a loaded semiautomatic
pistol in a crack house did nothing to promote a safe
environment. . . . However, it is true that you committed no
act of violence[,] you did not deploy or brandish the pistol,
and you did not use it here in connection with pedaling [sic]
crack.
Id. at 33. After weighing the factors to be considered in
imposing a sentence, see 18 U.S.C. § 3553(a), the District Court
sentenced appellant to 97 months of imprisonment. Id. at 30-36.
II. ANALYSIS
A. Standard of Review
Following the Supreme Court’s decisions in United States
v. Booker, 543 U.S. 220 (2005), and Gall v. United States, 128
S. Ct. 586 (2007), appellate courts review sentences under an
abuse-of-discretion standard and set aside sentences found to be
“unreasonable.” Booker, 543 U.S. at 261-63; Gall, 128 S. Ct. at
597. This review proceeds in two steps. First, the court must
ensure that the district court committed no procedural error,
 6

“such as failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the § 3553(a) factors, selecting a sentence based on
clearly erroneous facts, or failing to adequately explain the
chosen sentence – including an explanation for any deviation
from the Guidelines range.” Gall, 128 S. Ct. at 597. Once the
appellate court determines that a sentence is procedurally sound,
it reviews the substantive reasonableness of the sentence under
an abuse-of-discretion standard. Id.; see also United States v.
Gardellini, 545 F.3d 1089,1092-93 & n.2 (D.C. Cir. 2008).
In applying the clearly erroneous standard, an appellate
court must remain mindful that
judicial findings of fact are presumptively correct. See
Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,
500 (1984). This presumption “recognizes and rests upon
the unique opportunity afforded the trial court judge to
evaluate the credibility of witnesses and to weigh the
evidence,” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S.
844, 855 (1982), the comparative expertise of trial and
appellate judges, and the cost of duplicative appellate
decisionmaking, Anderson v. Bessemer City, 470 U.S. 564,
574-75 (1985). Pursuant to this presumption, a finding of
fact will not be overturned as “clearly erroneous” unless,
“although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.” Id. at 573.
HARRY T. EDWARDS & LINDA A. ELLIOTT, FEDERAL
STANDARDS OF REVIEW – REVIEW OF DISTRICT COURT
DECISIONS AND AGENCY ACTIONS 62 (2007). “However, when
a district judge altogether fails to make findings or fails to make
findings with respect to a material issue, appellate courts
normally vacate the judgment and remand for the judge to make
those findings.” Id. at 63.
 7

“[F]actfinding is the basic responsibility of district courts,
rather than appellate courts, and . . . the Court of Appeals
should not . . . resolve[] in the first instance [a] factual
dispute which had not been considered by the District
Court.”
Pullman-Standard, 456 U.S. at 291-92 (second and third
alterations added) (citation omitted).
The question that we face in this case is whether the District
Court judge made factual findings on appellant’s participation
in the underlying drug offense sufficient to survive appellate
review. Because, as we explain in the following sections, there
are no such findings and we can infer none, we are obliged to
remand the case to the trial court for appropriate findings.
B. Appellant’s Challenge to the Sufficiency of the Evidence
Supporting the District Court’s Reliance on § 2D1.8(a)(1)
Appellant contends that his sentence should be reversed for
two principal reasons: First, the District Court made no factual
finding that appellant participated in the underlying controlled
substance offense; and, second, the record is insufficient to
support a finding of participation. Appellant thus contends that
the District Court erred in applying § 2D1.8(a)(1) to calculate
his base offense level.
The parties have briefed and argued the question of who
bears the burden of proof under § 2D1.8(a). Appellant contends
that the Government carries the burden of proving participation
under § 2D1.8(a)(1). The Government, in turn, argues that when
non-participation is at issue under § 2D1.8(a)(2), the defendant
bears the burden of proving non-participation because it is a
mitigating factor in sentencing. As explained in Part II.B.2
infra, we hold that remand is necessary in this case because the
District Court failed to make any finding on appellant’s
participation or non-participation. Because the District Court
will be required to apply the correct legal standard in its
 8

factfinding on remand, we first address the matter of the burden
of proof. See, e.g., United States v. Barry, 938 F.2d 1327, 1333-
37 (D.C. Cir. 1991) (determining in the first instance the correct
legal standard to be applied by the district court on remand); see
also United States v. Hart, 324 F.3d 740, 750-51 (D.C. Cir.
2003) (stating the correct legal standard to be applied by the
district court and remanding the case because appellate court
could not determine whether district court had applied the
correct legal standard); United States v. McCoy, 242 F.3d 399,
410 (D.C. Cir. 2001) (same). After addressing the burden of
proof issue, we explain why this case must be remanded for
further factfinding.
1. Section 2D1.8(a) and the Participation Requirement
Section 2D1.8 of the November 1, 2005 Sentencing
Guidelines provides:
(a) Base Offense Level:
(1) The offense level from §2D1.1 applicable to the
underlying controlled substance offense, except as
provided below.
(2) If the defendant had no participation in the
underlying controlled substance offense other than
allowing use of the premises, the offense level shall be
4 levels less than the offense level from §2D1.1
applicable to the underlying controlled substance
offense, but not greater than level 26.
The criminal statute to which appellant pled guilty, 21
U.S.C. § 856(a)(2), does not require the Government to prove a
defendant’s participation in the underlying offense as an element
of the crime. The plain language of the applicable Guideline,
however, requires a finding of such participation for the higher
offense level in § 2D1.8(a)(1) to apply. Because, under the
Guidelines, the fact of participation enhances a defendant’s
 9

sentence, the Government bore the burden of proving
participation under § 2D1.8(a)(1) by a preponderance of the
evidence. See United States v. Price, 409 F.3d 436, 444 (D.C.
Cir. 2005) (government “carries the burden of proving any facts
that may be relevant in sentencing”); United States v.
Washington, 115 F.3d 1008, 1010 (D.C. Cir. 1997) (“The burden
is on the government to prove facts in support of a sentence
enhancement by a preponderance of the evidence.”); United
States v. Burke, 888 F.2d 862, 869 (D.C. Cir. 1989) (noting that
“insofar as [a Guidelines provision] relates to a matter that
would enhance the defendant’s sentence, the burden of proof is
on the prosecution to satisfy the factual prerequisites of the
provision”).
The Government does not dispute that it carried the burden
of proving appellant’s participation under § 2D1.8(a)(1); nor
does the Government doubt that proof of participation would
necessarily refute any claim of non-participation. Rather, the
Government advances the somewhat perplexing argument that,
because a defendant generally bears the burden of proof on
mitigating factors at sentencing, appellant bore the burden of
proving non-participation under § 2D1.8(a)(2). Appellee’s Br.
at 11-13. See United States v. Riley, 376 F.3d 1160, 1171 (D.C.
Cir. 2004) (“It is the defendant [who] bears the burden of
proving by a preponderance of the evidence that he is eligible
for a downward departure[.]”) (quotation marks and citation
omitted); United States v. White, 1 F.3d 13, 18 (D.C. Cir. 1993)
(“The defendant ‘properly bears the burden of proof under those
sections of the Guidelines that define mitigating factors.’”)
(quoting Burke, 888 F.2d at 869 n.10).
The Government’s argument is specious, especially given
that it does not dispute that the prosecution is obliged to prove
participation without regard to whether § 2D1.8(a)(2) is a
mitigating factor. It is not correct, as our dissenting colleague
suggests, that the District Court’s obligation to make a factual
 10

finding about participation “arguably arises only when the
defendant invokes [§ 2D1.8(a)(2)] and offers supporting
evidence.” Because participation is an element of the sentence,
and the Government “carries the burden of proving any facts
that may be relevant in sentencing,” Price, 409 F.3d at 444, the
District Court must make the necessary factual findings to
determine whether the Government has carried its burden of
proof. It makes no difference whatsoever whether the defendant
invokes § 2D1.8(a)(2) – the Government cannot seek a sentence
based on § 2D1.8(a)(1) unless it first proves participation.
Furthermore, § 2D1.8(a) by its plain terms provides for a
base offense level, not a mitigating departure. The section is
titled “Base Offense Level” and advises the sentencing court
either to import the “offense level” from § 2D1.1 if the
defendant also participated in the underlying drug offense, or to
reduce that “offense level” if the defendant “had no
participation.” U.S.S.G. § 2D1.8(a)(1), (2). See United States
v. Leasure, 319 F.3d 1092, 1098 (9th Cir. 2003) (“[B]ecause the
purpose of § 2D1.8 is to establish a defendant’s base offense
level, the government must prove the fact of participation[.]”).
The Tenth Circuit’s decision in United States v. Dickerson,
195 F.3d 1183 (10th Cir. 1999), upon which the Government
relies, does not persuade us to the contrary. There, the court
held that a defendant has the burden of proving non-
participation under § 2D1.8(a)(2) because “subsection (a)(1)
effectively presumes that a defendant personally participated in
the underlying controlled substance offense.” Dickerson, 195
F.3d at 1189, 1190. First, neither the plain language of the
Guideline nor the commentary creates such a presumption of
participation. See U.S. SENTENCING GUIDELINES MANUAL
§ 2D1.8 cmt. n.1 (2005). Second, the fact of participation
enhances a defendant’s sentence based on uncharged, unproven
conduct; it is clear that such a fact may not be “presumed” true,
but must instead be proven by the Government by a
 11

preponderance of the evidence. See, e.g., Washington, 115 F.3d
at 1010 (“The burden is on the government to prove facts in
support of a sentence enhancement by a preponderance of the
evidence.”).
2. The Need to Remand the Case for Further Factfinding
The Government argues in the alternative that there was
sufficient evidence in the record from which the District Court
could have concluded that it met its burden of proving that
appellant actually participated in the underlying offense. In
particular, the Government points to several pieces of evidence
from the factual proffer, including the plate with white rock
residue containing appellant’s fingerprints that officers found in
his co-defendant’s closet as well as the drug paraphernalia and
gun found in the shared dining room and appellant’s bedroom.
Appellee’s Br. at 14-17. The problem here is that the District
Court made no findings of fact on participation. We can only
speculate as to what the trial judge might have concluded from
the evidence had such findings been made. The District Court’s
only comments on appellant’s conduct concerned the charged
offense of maintaining a crack house. See Sentencing H’rg Tr.
at 33 (“Letting someone use your apartment to cook and store
crack cocaine for sale was no benign offense.”). If anything,
these comments might be seen to suggest that appellant did not
participate in a crack offense in any way beyond allowing others
to store crack at his apartment. See id. (“[Y]ou committed no
act of violence[,] you did not deploy or brandish the pistol, and
you did not use it here in connection with pedaling [sic] crack.”)
(emphasis added).
The Government suggests that we can infer the facts
necessary to conclude that the District Court implicitly found
that appellant participated in the underlying offense. See, e.g.,
United States v. Mastropierro, 931 F.2d 905, 906-07 (D.C. Cir.
1991) (inferring facts to support District Court’s implicit factual
finding at sentencing). We will not follow that approach here.
 12

The District Court’s utter silence on the participation question
is reason enough to give us pause. More important, however, is
the Supreme Court’s admonition in Pullman-Standard: “Where
the trial court fails to make findings, or to find on a material
issue, and an appeal is taken, the appellate court will normally
vacate the judgment and remand the action for appropriate
findings to be made[.]” 456 U.S. at 292 n.22 (citation omitted).
Indeed, even when a trial court’s findings are set aside on an
error of law, “the court of appeals is not relieved of the usual
requirement of remanding for further proceedings to the tribunal
charged with the task of factfinding in the first instance.” Id. at
293.
Without explicit findings, we cannot conclude with any
certainty that the District Court was aware of the participation
requirement in § 2D1.8(a)(1) or that it employed the correct
legal standard in determining appellant’s sentence. Where, as
here, the evidence points to no clear conclusion on appellant’s
alleged participation, we will not infer it. Rather, the case must
be remanded to allow the trial judge to make appropriate
findings that are susceptible to appellate review should the
appellant again seek review in this court. See McCoy, 242 F.3d
at 410 (remanding case for district court to determine
applicability of sentencing enhancement because “on the record
before us we cannot conclude with confidence that it employed
the correct legal standard in applying the . . . enhancement”); cf.
United States v. Hutchinson, 268 F.3d 1117, 1118 (D.C. Cir.
2001) (remanding case for further factfinding, because the trial
judge had failed to make findings of fact essential to decide the
issue on review).
III. CONCLUSION
On remand, the District Court should determine, on the
existing record, whether the Government met its burden of
proving by a preponderance of the evidence that appellant
participated in the underlying offense. If the District Court
 13

determines that the Government did meet its burden, then
appellant will be free to seek review of the District Court’s
factual findings on participation. During the proceedings on
remand, appellant may file a motion pursuant to 18 U.S.C.
§ 3582(c)(2) for a reduced sentence in light of the recent
amendments to the Guidelines that lower the base offense levels
for certain crack cocaine offenses. Finally, because we remand
for resentencing, we will not consider appellant’s challenge to
the substantive reasonableness of the sentence ultimately
imposed by the District Court at this time. See In re Sealed
Case, 527 F.3d 188, 190 (D.C. Cir. 2008) (remanding to district
court for correction of procedural sentencing error and declining
to assess the substantive reasonableness of sentence).
For the foregoing reasons, we vacate appellant’s sentence
and remand the case for resentencing consistent with this
opinion.
 1

EDWARDS, Senior Circuit Judge, concurring, with whom
SILBERMAN, Senior Circuit Judge, joins: The question before
this court is whether a preponderance of the evidence supports
the trial court’s decision to sentence appellant under U.S.S.G.
§ 2D1.8(a)(1). With no attention paid to the relevant federal
rules or applicable case law, the parties assumed that appellant’s
claim was subject to plain error review because he failed to
preserve his objection to the trial judge’s factual findings. After
determining that the District Court made no factual findings on
appellant’s participation in the underlying drug offense, we had
no occasion to address the applicable standard of review.
Nonetheless, because we think the issue is important, especially
in the context of sentencing, we write separately to explain why
we think the parties were likely misguided in their assumption.
Our premise is simple: We are required to apply “a clear
error standard of review for appellate challenges to judicial
fact-finding at sentencing,” United States v. Garcia, 413 F.3d
201, 222 (2d Cir. 2005), without regard to whether appellant
objected to the trial judge’s factual findings below.
As the Supreme Court recently stated in Gall v. United
States, 128 S. Ct. 586 (2007), we review a sentencing court’s
factual determinations for clear error. See id. at 597 (holding
that a sentence is subject to reversal if the trial judge “select[s]
a sentence based on clearly erroneous facts”); see also United
States v. Edwards, 496 F.3d 677, 681, 683 (D.C. Cir. 2007)
(appellate courts review sentencing court’s factual findings for
clear error). However, with respect to certain matters (other
than a trial judge’s factfinding in support of a particular
sentence), if a criminal defendant fails to object to an error at
sentencing, a challenge to that error on appeal is deemed
forfeited unless the more demanding plain error standard of
review is satisfied. See FED. R. CRIM. P. 51(b) (“Preserving a
Claim of Error”); FED. R. CRIM. P. 52(b) (“Plain Error”); see
also United States v. Olano, 507 U.S. 725, 731-32 (1993). Thus,
 2

for example, if on appeal an appellant raises a theory in support
of a downward adjustment that was never raised at sentencing,
the matter will be reviewed for plain error. See, e.g., In re
Sealed Case, 349 F.3d 685, 690-91 (D.C. Cir. 2003). Likewise,
parties in a sentencing proceeding must file timely objections to
the findings contained in a PSR in order to preserve any
objections for appeal. See FED. R. CRIM. P. 32(f) (“Objecting to
the Report”); FED. R. CRIM. P. 32(f)(1) (parties must object
within 14 days to “material information, sentencing guideline
ranges, and policy statements contained in or omitted from the
[presentence] report”); cf. United States v. Saro, 24 F.3d 283,
286 (D.C. Cir. 1994) (reviewing for plain error appellant’s claim
that district court erred in calculating his base offense level
where appellant failed to object to the findings in the PSR).
Our case law is unclear on whether a criminal defendant
must object to a sentencing court’s factual determinations at the
time of sentencing in order to avoid forfeiting any challenges on
appeal. See United States v. Brodie, 524 F.3d 259, 269-70 & n.7
(D.C. Cir. 2008) (declining to resolve whether unpreserved
challenge to district court’s finding on sentencing enhancement
is reviewable only for plain error and concluding that the
enhancement was not erroneous); United States v. Gewin, 471
F.3d 197, 202 (D.C. Cir. 2006) (same, where court’s implicit
factual finding on appellant’s ability to pay fine was not
erroneous). We believe that, as with judge-made factual
findings in civil bench trials, an appellant in a criminal case may
seek clear error review of a sentencing court’s factual findings
without regard to whether the appellant requested findings,
objected to them, or moved to amend the findings before the
trial judge.
Federal Rule of Civil Procedure 52(a) codifies the clearly
erroneous standard of review for findings of fact in civil bench
trials. See FED. R. CIV. P. 52(a)(6). In Maine v. Taylor, 477
U.S. 131 (1986), the Supreme Court adopted Rule 52(a)’s
 3

clearly erroneous standard for appellate review of findings of
fact by a district court in criminal cases on issues other than
those that determine guilt. Id. at 145; see also 9C CHARLES
ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE: TRIALS § 2573 (3d ed. 2008) [hereinafter WRIGHT
& MILLER] (Rule 52(a)’s clearly erroneous standard applies to
“findings of a district judge in a criminal case on issues other
than guilt”). The Taylor Court reasoned that applying Rule
52(a)’s clearly erroneous standard in criminal cases was
appropriate, because the “Federal Rules of Criminal Procedure
contain no counterpart to Federal Rule of Civil Procedure 52(a)”
and “the considerations underlying Rule 52(a) – the demands of
judicial efficiency, the expertise developed by trial judges, and
the importance of first-hand observation – all apply with full
force in the criminal context, at least with respect to factual
questions having nothing to do with guilt.” Taylor, 477 U.S. at
145 (internal citation omitted) (emphasis added).
Since Taylor, the Court has reaffirmed that the clearly
erroneous standard applies to judicial factfinding in criminal
cases. See Hernandez v. New York, 500 U.S. 352, 365-66 (1991)
(plurality opinion) (noting that “Federal Rule of Civil Procedure
52(a) . . . permits factual findings to be set aside only if clearly
erroneous” and that “we have held that the same standard should
apply to review of findings in criminal cases on issues other than
guilt”) (citing Taylor, 477 U.S. at 145; Campbell v. United
States, 373 U.S. 487, 493 (1963)). This court, in turn, has
invoked Rule 52(a) in holding that the clearly erroneous
standard governs our review of factual findings in criminal
cases. See United States v. Williams, 951 F.2d 1287, 1289 (D.C.
Cir. 1991) (citing Rule 52(a) and noting that the clearly
erroneous standard was “imported from the civil rules for cases
tried to the court . . . because the rules of criminal procedure
were silent on the matter”) (internal citation omitted).
 4

By its own terms, Rule 52 makes clear that a party need not
object to a trial judge’s findings of fact in order to preserve a
challenge on appeal:
Questioning the Evidentiary Support. A party may later
question the sufficiency of the evidence supporting the
findings, whether or not the party requested findings,
objected to them, moved to amend them, or moved for
partial findings.
FED. R. CIV. P. 52(a)(5). See also 9C WRIGHT & MILLER § 2581
(noting that “Federal Rule 52 is not intended to create formal
barriers to appellate review” and that, under Rule 52(a), it is not
“necessary for a party seeking to question the sufficiency of the
evidence on appeal to have made an objection in the district
court to the findings”); HARRY T. EDWARDS & LINDA A.
ELLIOTT, FEDERAL STANDARDS OF REVIEW – REVIEW OF
DISTRICT COURT DECISIONS AND AGENCY ACTIONS 62 (2007)
[hereinafter EDWARDS & ELLIOTT] (noting that, under Rule 52,
an “appellate challenge to the sufficiency of the factual findings
on which a judgment or judgment on partial findings rests is not
affected by a party’s failure to preserve the issue”). This
exemption from the error-preservation requirement has been part
of Rule 52 since the Federal Rules of Civil Procedure were
adopted in 1937. See 3 JAMES WM. MOORE & JOSEPH
FRIEDMAN, MOORE’S FEDERAL PRACTICE § 52.02 (1938)
(analyzing the error-preservation provision in Rule 52 and
noting that “all pitfalls in securing review have been avoided”).
The provision was initially housed in Rule 52(b). In 2007, the
Federal Rules of Civil Procedure were amended and the error-
preservation provision was moved from Rule 52(b) to Rule
52(a)(5). See EDWARDS & ELLIOTT at 201. However, the
content of the provision was retained without material change.
See FED. R. CIV. P. 52, advisory committee’s notes (2007
amendments).
 5

In sum, plain error review always has been inapplicable to
factual challenges governed by Rule 52 of the Federal Rules of
Civil Procedure. See, e.g., Fed. Ins. Co. v. HPSC, Inc., 480 F.3d
26, 32 (1st Cir. 2007) (“We see no reason why [a party],
following a bench trial, cannot argue now for the first time [on
appeal] that the court’s findings were clearly erroneous or that
they cannot support the judgment.”) (citation omitted); Colonial
Penn Ins. v. Mkt. Planners Ins. Agency Inc., 157 F.3d 1032,
1036 & nn.2-3 (5th Cir. 1998) (same); Monaghan v. Hill, 140
F.2d 31, 33 (9th Cir. 1944) (same). Mindful that the clearly
erroneous standard applies to a trial judge’s factual findings in
criminal cases (on issues other than guilt), including findings
made at sentencing, see Gall, 128 S. Ct. at 597, we believe that
the clearly erroneous standard governs the sort of factual
sufficiency challenge at issue in this appeal. We find no merit
in the parties’ suggestion that plain error review would have
applied in this case had we been required to address the standard
of review. Nothing in Taylor or the Supreme Court’s more
recent cases applying the clearly erroneous standard in criminal
cases purports to require a criminal defendant to preserve a
challenge to the sufficiency of a district court’s non-guilt factual
findings at sentencing.
In reaching this conclusion, we follow the approach taken
by the Second Circuit in Garcia. In that case, the appellate court
reviewed a sentencing judge’s factual findings for clear error,
even though one of the defendants had failed to challenge the
findings below. 413 F.3d at 205, 219 n.13, 222-23. In applying
the clearly erroneous (not plain error) standard of review, the
Garcia court effectively adhered to the mandate of Federal Rule
of Civil Procedure 52(a)(5). We recognize that some circuits
seem to assume that plain error is the appropriate standard for
reviewing challenges to a sentencing court’s factual findings
raised for the first time on appeal. See, e.g., United States v.
Salado, 339 F.3d 285, 293-94 (5th Cir. 2003) (noting that the
appellate court reviews challenges to a trial judge’s factfinding
 6

in support of sentencing for plain error when the appellant failed
to object below); cf. United States v. Grier, 475 F.3d 556, 570
(3d Cir. 2007) (en banc) (“A sentence imposed as a result of a
clearly erroneous factual conclusion will generally be deemed
‘unreasonable’ and, subject to the doctrines of plain and
harmless error, will result in remand to the district court for
resentencing.”). However, these decisions lend little to our
analysis, because they entirely fail to consider the fact that the
clearly erroneous standard involves no preservation requirement.
More than 20 years ago, the Supreme Court noted that “the
‘clearly erroneous’ standard of review long has been applied to
nonguilt findings of fact by district courts in criminal cases.”
Taylor, 477 U.S. at 145. And since the adoption of Rule 52 in
1937, it has also been clear that an appellant need not object to
a trial judge’s factual findings in order to seek clearly erroneous
review of those findings on appeal:
Rule 52 makes clear that, in contrast to most questions
raised on appeal, an appellate challenge to the sufficiency
of the evidence supporting the factual findings on which a
judgment or judgment on partial findings rests is not
affected by a party’s failure to preserve the issue.
...
Plain error review is consequently inapplicable to review of
such challenges.
EDWARDS & ELLIOTT at 62-63.
To preserve a claim of error on appeal, a party typically
must raise the issue before the trial court. See, e.g., FED. R.
EVID. 103(a); FED. R. CRIM. P. 30(d); FED. R. CRIM. P. 51(b);
FED. R. CIV. P. 46; FED. R. CIV. P. 51(c), (d). “No procedural
principle is more familiar . . . than that a . . . right may be
forfeited in criminal as well as civil cases by the failure to make
timely assertion of the right before a tribunal having jurisdiction
 7

to determine it.” Yakus v. United States, 321 U.S. 414, 444
(1944). There are at least three good reasons for this procedural
principle: (1) to allow the trial judge, before whom the matter
is being tried, to address a party’s claims in the first instance,
see Hormel v. Helvering, 312 U.S. 552, 556 (1941); (2) to afford
the appellate court the benefit of the trial judge’s views on
matters that may come before it on appeal, see United States v.
Blackwell, 694 F.2d 1325, 1344-45 (D.C. Cir. 1982) (Robinson,
J., concurring); and (3) to prevent one party from sandbagging
another by raising new claims on appeal, see Singleton v. Wulff,
428 U.S. 106, 120 (1976); Hormel, 312 U.S. at 556; In re Sealed
Case, 356 F.3d 313, 319 (D.C. Cir. 2004); Blackwell, 694 F.2d
at 1344-45 (Robinson, J., concurring). Given the importance of
this procedural principle, it is notable, but not surprising, that
Federal Rule of Civil Procedure 52(a)(5) carves out a significant
exception to the normal requirements of error preservation for
challenges to the sufficiency of the evidence supporting findings
of fact underlying judgments in bench trials. The exception is
unsurprising, because factfinding in a bench trial occurs only
after a trial judge has reviewed the parties’ evidentiary
submissions and arguments. In other words, a trial judge almost
always has the benefit of the parties’ views on the evidence
before making findings of fact. Therefore, it would serve no
good end to require the parties to formally object to the judge’s
findings of fact in order to preserve a challenge on appeal.
In any event, the Supreme Court has made it plain that the
clearly erroneous standard of review set forth in Rule 52 applies
in both civil and criminal contexts. The exception to the error-
preservation requirement now found in Rule 52(a)(5) is part of
the standard and, therefore, we can discern no good reason to
limit the exception to civil cases alone. Accordingly, we believe
that the clearly erroneous standard governs an appellate court’s
review of a sentencing judge’s factual findings, whether or not
those findings have been challenged below.
 BROWN, Circuit Judge, dissenting: Here we confront the
proverbial question: which comes first—the chicken or the
egg? Different intuitions lead to different conclusions. Thus,
the court remands; while I would simply affirm.

If a district court found a defendant was born in May
1957, when, in fact, she was born two months earlier, we
would not remand for the district court to correct its mistake
unless on appeal the defendant explains how the factual error
affected a legal conclusion. Nor would we remand if the
district court made no age finding at all, unless the defendant
spells out why that failure corrupted the legal analysis. An
appellate court simply does not resolve questions of fact (or
force a district court to make a factual determination) unless
the answer to the factual question matters.

For a remand to be appropriate, Appellant needs two
separate questions both to break his way: (1) whether the
district judge was legally required to make a factual finding
on participation; and (2) whether the district court did so. If
the answer to Question (1) is “no”—that is, if the district court
was not required to make a finding—then the answer to
Question (2) is irrelevant.

The court only asks “whether the District Court judge
made factual findings on appellant’s participation in the
underlying drug offense[.]” Maj. Op. at 7. I agree the district
court did not explicitly do so. But the more important
question is whether the district judge was obligated to make
such a finding in the first place. If § 2D1.8(a)(2) is a
mitigation provision, the district court’s obligation to make a
factual finding about participation arguably arises only when
the defendant invokes the provision and offers supporting
evidence. It is, after all, the defendant’s burden to prove by a
preponderance of the evidence any “mitigating factors.”
United States v. White, 1 F.3d 13, 18 (D.C. Cir. 1993)
(Silberman, J). On the other hand, if § 2D1.8(a)(2) sets the
 2
base offense level, then the district court might have been
required to make a factual finding as to participation,
regardless of whether the defendant raised the issue. See
United States v. Price, 409 F.3d 436, 444 (D.C. Cir. 2005).
Question (1) in this case thus depends on whether
§ 2D1.8(a)(2) is a mitigating factor.

However it is resolved, determining § 2D1.8(a)(2)’s
character is a purely legal question. Questions of law receive
either de novo review (if objected to) or plain error review (if
unobjected to). HARRY T. EDWARDS & LINDA A. ELLIOTT,
FEDERAL STANDARDS OF REVIEW – REVIEW OF DISTRICT
COURT DECISIONS AND AGENCY ACTIONS 5 (2007). Because
Question (1) in this case was unobjected to, it ought to be
reviewed for plain error. Instead, the court decides the legal
question, asserting “[t]he plain language of” § 2D1.8(a)(2)
“requires a finding of such participation for the higher offense
level in § 2D1.8(a)(1) to apply.” Maj. Op. at 8. Because
there was no factual finding, the majority remands.

However, under the plain error standard that should be
applied here, Appellant loses; this court has never resolved
whether § 2D1.8(a)(2) sets the base offense level or is a
mitigation provision, and in fact, as the majority observes but
fails fully to credit, there is a circuit split on this very
question. Compare United States v. Dickerson, 195 F.3d
1183, 1189–90 (10th Cir. 1999) (holding burden is on the
defendant to show applicability of § 2D1.8(a)(2)) and United
States v. Leasure, 319 F.3d 1092, 1098 (9th Cir. 2003)
(holding burden is on the government to show participation
under § 2D1.8(a)(1)). Indeed, it is not surprising that there is
a circuit split, because § 2D1.8(a)’s legal character is by no
means obvious. Thus even assuming error, we should affirm
because the district court did not “fail[] to follow an
 3
absolutely clear legal norm.” United States v. Andrews, 532
F.3d 900, 909 (D.C. Cir. 2008).

I respectfully dissent.