     Case: 18-10604      Document: 00515070694         Page: 1    Date Filed: 08/09/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                      No. 18-10604                            August 9, 2019
                                                                              Lyle W. Cayce
UNITED STATES OF AMERICA,                                                          Clerk


                                                 Plaintiff-Appellee

v.

DOMINIC LINDSEY,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:17-CR-512-1


Before HIGGINBOTHAM, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       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


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 18-10604     Document: 00515070694      Page: 2    Date Filed: 08/09/2019


                                  No. 18-10604

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 (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.



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