Court Rarely Finds Plain Error on Matters of First Impression

 United States v. Cooper, 2020 U.S. App. LEXIS 13873 (7th Cir. April 30, 2020):

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On appeal, Cooper argues for the first time that he was entitled to a full, plenary resentencing hearing and that he was entitled to be physically present at the hearing. Because he did not raise these concerns in the district court, we review them only for plain error. See United States v. Olano, 507 U.S. 725, 732-37, 113 S. Ct. 1770, 123 L. Ed. 2d 508 (1993); United States v. Pankow, 884 F.3d 785, 790-91 (7th Cir. 2018). We have yet to decide whether § 404 of the First Step Act mandates a plenary resentencing [*4]  hearing, though we note that other courts have declined to so hold. See United States v. Hegwood, 934 F.3d 414, 418 (5th Cir. 2019) (plenary resentencing not allowed); United States v. Beamus, 943 F.3d 789, 792 (6th Cir. 2019) (plenary resentencing at court's discretion); United States v. Wirsing, 943 F.3d 175, 186 (4th Cir. 2019) (same). We rarely find plain error on matters of first impression, however, see United States v. Ramirez, 783 F.3d 687, 695 (7th Cir. 2015), and nothing in § 404 plainly requires the district court to hold any sort of hearing at all. We therefore cannot conclude that the district court plainly erred by reducing Cooper's sentence without holding a plenary hearing or without having Cooper appear in person.

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