USA v. Michael Johnson

Filing

UNPUBLISHED OPINION FILED.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]

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.

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