USA v. Michael Johnson


UNPUBLISHED OPINION FILED. [16-11486 Dismissed as Frivolous] Judge: WED, Judge: EBC, Judge: GJC. Mandate pull date is 09/11/2017 for Appellant Michael Wesley Johnson; granting motion to dismiss appeal filed by Appellee USA [8456121-2]; denying motion for summary affirmance filed by Appellee USA [8456121-3]; denying motion to extend time to file appellee's brief filed by Appellee USA [8456121-4] [16-11486]

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Case: 16-11486 Document: 00514125153 Page: 1 Date Filed: 08/21/2017 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 16-11486 Summary Calendar United States Court of Appeals Fifth Circuit FILED August 21, 2017 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. MICHAEL WESLEY JOHNSON, also known as Mike Jones, Defendant-Appellant Appeal from the United States District Court for the Northern District of Texas USDC No. 4:16-CR-112-5 Before DAVIS, CLEMENT, and COSTA, Circuit Judges. PER CURIAM: * Michael Wesley Johnson appeals the sentence imposed following his guilty plea conviction for conspiracy to possess with intent to distribute a mixture and substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1) and (b)(1)(C). He argues that the district court erred in accepting the statements of his codefendants when determining the drug quantity used to calculate his base Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. * Case: 16-11486 Document: 00514125153 Page: 2 Date Filed: 08/21/2017 No. 16-11486 offense level under the Sentencing Guidelines. The Government moves to dismiss the appeal as frivolous or, alternatively, for summary affirmance or an extension of time to file a brief. As correctly noted by the Government, during the sentencing hearing, Johnson expressly withdrew his objection to the district court’s drug quantity calculation. Johnson’s objection was therefore waived, and “[w]aived errors are entirely unreviewable[.]” United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). Because Johnson withdrew his objection to the drug quantity determination, the sole issue raised on appeal is unreviewable. Accordingly, the Government’s motion to dismiss the appeal is GRANTED, and the appeal is DISMISSED AS FRIVOLOUS. See 5TH CIR. R. 42.2. The Government’s alternative motions for summary affirmance or an extension of time to file a brief are DENIED. 2

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