USA v. Michael Go

Filing

UNPUBLISHED OPINION FILED. [16-11591 Dismissed as Frivolous] Judge: JLW , Judge: JLD , Judge: LHS Mandate issue date is 11/27/2017 for Appellant Michael Sean Goss; granting motion to file response out of time filed by Appellant Mr. Michael Sean Goss [8548687-2]; granting motion to withdraw as counsel filed by Mr. Mark R. Danielson [8464785-2] [16-11591]

Case: 16-11591

Document: 00514223389

Page: 1

Date Filed: 11/03/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-11591
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
November 3, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MICHAEL SEAN GOSS, also known as “Killer,”
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:16-CR-121-4
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *

The attorney appointed to represent Michael Sean Goss has moved for
leave to withdraw and has filed a brief in accordance with Anders v. California,
386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011).
Goss has filed an untimely response, which we construe as a motion for leave
to file an out-of-time response. We GRANT Goss leave to file his untimely
response. We have reviewed counsel’s brief and the relevant portions of the

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 16-11591

Document: 00514223389

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Date Filed: 11/03/2017

No. 16-11591
record reflected therein, as well as Goss’s response. We agree with counsel’s
assessment that the appeal presents no nonfrivolous issue for appellate review.
Goss argues that the district court erred in applying the two-level
enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. “A
defendant’s sentence may properly be enhanced under U.S.S.G. § 2D1.1(b)(1)
if the possession of a firearm by one of his coconspirators was reasonably
foreseeable.” United States v. Hernandez, 457 F.3d 416, 423 (5th Cir. 2006).
As stated in the PSR, Goss purchased methamphetamine multiple times from
a coconspirator who was known to carry a firearm during drug transactions.
This court has held that a coconspirator’s use of a firearm in a drug transaction
will ordinarily be foreseeable “because firearms are tools of the trade in drug
conspiracies.” Id. (quoting United States v. Dixon, 132 F.3d 192, 202 (5th Cir.
1997)). Thus, Goss has not raised a non-frivolous argument with respect to
this enhancement.
Goss also argues that there is insufficient evidence that he “maintained”
a premises for the purpose of manufacturing or distributing a controlled
substance within the meaning of U.S.S.G. § 2D1.1(b)(12). Though Goss filed a
written objection to the application of § 2D1.1(b)(12), he withdrew his objection
at sentencing. A defendant’s withdrawal of an objection constitutes the waiver
of that objection, and “[w]aived errors are entirely unreviewable.” United
States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). Therefore, Goss has failed
to present a nonfrivolous issue for appeal with respect to the application of
§ 2D1.1(b)(12). See United States v. Rico, 864 F.3d 381, 384 (5th Cir. 2017)
(withdrawal of written objection to enhancement at sentencing hearing
constituted waiver).

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No. 16-11591
Accordingly, counsel’s motion for leave to withdraw is GRANTED,
counsel is excused from further responsibilities herein, and the APPEAL IS
DISMISSED. See 5TH CIR. R. 42.2.

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