Court Decisions and Agency Actions 5 (2007). Because Question (1) in this case was unobjected to, it ought to be reviewed for plain error. Instead, the court decides the legal question, asserting “[t]he plain language of’ § 2D1.8(a)(2) “requires a finding of such participation for the higher offense level in § 2D1.8(a)(l) to apply.” Maj. Op. at 846. Because there was no factual finding, the majority remands. However, under the plain error standard that should be applied here, Appellant loses; this court has never resolved whether § 2D1.8(a)(2) sets the base offense level or is a mitigation provision, and in fact, as the majority observes but fails fully to credit, there is a circuit split on this very question. Compare United States v. Dickerson, 195 F.3d 1183, 1189-90 (10th Cir.1999) (<HOLDING>) and United States v. Leasure, 319 F.3d 1092,
holding that employer bears the burden of proving applicability of flsa exemptions holding that the burden is on the plaintiff holding that the burden is on the defendant when the validity of the warrant is challenged holding burden is on the defendant to show applicability of  2d18a2 holding that burden is on government to show that error in failure to provide notice is harmless