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A trial court's decision is "plain error" under Federal Rule of Criminal Procedure 52(b) if the error is plain at the time of appellate review, even when the law was unsettled at the time of error.

Petitioner pled guilty to being a felon in possession of a firearm, and the court increased Petitioner’s sentence beyond the sentencing guideline range so he would be eligible for a drug treatment program. Petitioner did not object. However, he did appeal, arguing that the trial court’s decision to increase the sentence was plain error. While Petitioner’s appeal was pending, the Supreme Court decided Tapia v. United States, 564 U.S. ___ (2011) which held that it was error for a trial court to impose or lengthen a prison sentence to allow the offender to complete a treatment program. The Court of Appeals for the Fifth Circuit affirmed, reasoning that because the law was unsettled at the time of sentencing, the error was not “plain” within the meaning of Federal Rule of Criminal Procedure 52(b).

The Supreme Court reversed, holding that whether or not the law is settled at the time of trial, it is enough for the purposes of Rule 52(b) that a legal error is “plain” at the time of appellate review. The Court reasoned that a contrary “time of error” rule could not be squared with existing precedent, and would lead to unjustifiably different treatment for similarly situated parties.