prove by a preponderance of the evidence any “mitigating factors.” United States v. White, 1 F.3d 13,18 (D.C.Cir.1993) (Silberman, J). On the other hand, if § 2D1.8(a)(2) sets the base offense level, then the district court might have been required to make a factual finding as to participation, regardless of whether the defendant raised the issue. See United States v. Price, 409 F.3d 436, 444 (D.C.Cir.2005). Question (1) in this case thus depends on whether § 2D1.8(a)(2) is a mitigating factor. However it is resolved, determining § 2D1.8(a)(2)’s character is a purely legal question. Questions of law receive either de novo review (if objected to) or plain error review (if unobjected to). Haery T. Edwards & LiNda A. Elliott, Federal STANDARDS OF REVIEW — REVIEW OF DISTRI 8 (9th Cir.2003) (<HOLDING>). Indeed, it is not surprising that there is a
holding that the burden to show that reprocurement did not subject the government to excess costs was on the plaintiff contractor holding that the burden is on the plaintiff 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 holding burden is on the government to show participation under  2d18al