Petitioner, JOSE ARMANDO BAZAN, was charged with and pleaded guilty to a single count of possession with intent to distribute cocaine. The District Court imposed a sentence of 119 months.

On direct appeal, Mr. Bazan argued he should have received a minor or mitigating role downward adjustment under the Guidelines and that the sentence was unreasonable.

Mr. Bazan agreed review was for plain error because he did not present these issues to the District Court. The Government responded that this claim was not reviewable on appeal because the issue of minor/mitigating role is a fact question. The United States Court of Appeals for the Fifth Circuit ("the Fifth Circuit") agreed, stating that "question of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error." (Appendix A, page 2) (quoting United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991)). The Fifth Circuit likewise held the reasonableness issue did not constitute plain error. (Appendix A, page 2).

The ruling of the Fifth Circuit directly affirmed the Government's position that there was to be "no review" of these claims as the Government had advocated. With respect to any factual findings by the District Court, those facts must not change when the issues change, contrary to the Government's advocacy to the contrary. Finally, the action by the Fifth Circuit reflects that the Appellate Court did not apply the plain error standard of review, as required by this Court. Critically, Mr. Bazan's request was for resentencing with the adjustment and a reasonable sentence. Hence, the Fifth Circuit has decided an important federal question in a way that conflicts with relevant decisions of this Court. A compelling reason is thus presented in support of discretionary review. Mr. Bazan therefore respectfully requests that this Honorable Court grant this Petition and allow this case to proceed to resentencing with a reduction for minor/minimal party status and a reasonable sentence.

Whether the Fifth Circuit erred in holding that a district court's failure to apply a minor or mitigating role adjustment under the Sentencing Guidelines can never constitute plain error on appeal