With no explanation, chose the best option from "A", "B", "C" or "D". 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,

A: holding that the burden is on the plaintiff
B: holding burden is on the defendant to show applicability of  2d18a2
C: holding that employer bears the burden of proving applicability of flsa exemptions
D: holding that the burden is on the defendant when the validity of the warrant is challenged
B.