How Plain-Error Review Applied to Unobjected Sentencing Facts

On November 13, 2026, the Eighth Circuit filed United States v. Times, No. 25-2791. The court affirmed an 84-month prison sentence for being a felon in possession of a firearm. The guidelines range was 51 to 63 months. Times argued that the judge relied on wrong facts to go above that range. Because he did not object at sentencing, the court reviewed only for plain error and found none. Read the decision (PDF).

This is a published opinion. The slip prints "Filed: November 13, 2026" with no clock time; the court's server lists the PDF as last modified at 11:00:02 a.m. Eastern that day.

What happened

Times pleaded guilty to one count of possessing a firearm after a felony conviction, under 18 U.S.C. § 922(g)(1). In April 2024, officers found him asleep and intoxicated in the driver's seat of a car, with a loaded handgun on the floorboard. In May 2024, after a stop for weaving, he told officers he had a gun under his seat and had come from a bar, where he had "a drink." When marshals went to his home to arrest him in July 2024, they found five handguns, ammunition and two loaded magazines.

Under the plea agreement, the government agreed to dismiss a second count and to ask for no more than 87 months. Neither side objected to the presentence report, and both agreed the advisory range was 51 to 63 months.

His record included 25 convictions for driving without a valid license, two for driving while intoxicated, drug and gun convictions, and second-degree murder for a 2008 shooting.

The judge found that Times's criminal history score and category were "understated" and did not "adequately reflect the seriousness of [his] criminal history." Saying "nothing has deterred Mr. Times from violating the law," the court granted an upward variance and imposed 84 months. An upward variance is a sentence above the guidelines range based on the factors in 18 U.S.C. § 3553(a), such as deterrence and protecting the public. See departures and variances.

The three statements Times challenged

On appeal, Times said the judge made three factual mistakes at the hearing:

1. That he was "driving without a driver's license, drunk on a number of occasions, many times with a gun."
2. That he had been drinking before the 2008 murder of his father-in-law.
3. That he had a "continuing pattern of drinking and driving with guns, and drinking and possession of guns."

The opinion says a court commits procedural error by "selecting a sentence based on clearly erroneous facts." It reverses for clear error "only when the entire record definitely and firmly illustrates that the lower court made a mistake."

Why the standard of review mattered

Times did not object to these statements at sentencing, so the court reviewed only for plain error. Federal Rule of Criminal Procedure 52(b) lets an appeals court consider "a plain error that affects substantial rights" even though no one raised it below.

The opinion lists four things the defendant must show: there is an error; the error is obvious; it affected his substantial rights; and it seriously affected "the fairness, integrity, or public reputation of judicial proceedings." It adds that meeting all four is difficult, "as it should be," quoting Puckett v. United States, 556 U.S. 129, 135 (2009).

No clear factual error

The court held that each statement had support in the record:

• Driving without a license. Times had 25 convictions for that.
• Driving drunk on a number of occasions. He had two DWI convictions.
• Drinking, driving and guns. The April 2024 and May 2024 stops both involved alcohol, a car and a handgun.
• Drinking before the murder. Times contested only the words "you apparently were drinking." The court noted the presentence report said he completed a substance abuse program early in that prison term, and held that the record "neither definitively nor firmly shows a mistake."

No effect on the sentence

The court gave a second, separate reason. Even if a statement lacked support, Times had to show "a reasonable probability that but for the error he would have received a more favorable sentence." The opinion says the error must have been a "principal basis" for the sentence.

The court was not convinced. The judge had pointed to several aggravating factors, including the danger Times's conduct posed to the community and his prior convictions for guns, drugs, illegal driving and murder. Because Times did not show a reasonable probability of a lower sentence, the challenge failed.

Who it affects

• People sentenced in the Eighth Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota). A challenge to the judge's description of the facts, raised for the first time on appeal, gets plain-error review, a hard standard to meet.
• Anyone facing a possible upward variance. The time to dispute a fact is at the sentencing hearing, and earlier through objections to the presentence report. Here no one objected to the report, and the court of appeals relied on it.
• People appealing a variance. Even a real factual slip may not lead to resentencing if the judge gave other reasons for the sentence. The question is whether the error was a principal basis for it.
• People in other circuits. The plain-error test comes from Rule 52(b) and Supreme Court cases and applies nationwide. Times itself binds only the Eighth Circuit.