United States v. Milton , 231 F. App'x 390 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 19, 2007
Charles R. Fulbruge III
Clerk
No. 06-60925
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FARWETT MILTON,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 2:06-CR-11-1
--------------------
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Farwett Milton appeals his 70-month prison sentence for his
guilty–plea conviction of distribution of more than five grams of
cocaine base, in violation of 21 U.S.C. § 841(a)(1). Milton
contends that the district court erred in determining the
quantity of cocaine base attributable to him for sentencing
purposes. He asserts that the district court should not have
considered conduct in five indictment counts that were dismissed
pursuant to Milton’s plea agreement.
*
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this opinion should not be published and is not precedent except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.
No. 06-60925
-2-
Milton raised such a contention in his objections to the
presentence report; however, he explicitly withdrew the
contention at the beginning of his sentencing hearing. The
withdrawal of an objection constitutes the waiver of that
objection by the defendant. United States v. Musquiz, 45 F.3d
927, 931 (5th Cir. 1995). “Waived errors are entirely
unreviewable, unlike forfeited errors, which are reviewable for
plain error.” Id. Milton’s withdrawal of his sentencing
objection amounted to a waiver thereof and renders the objection
unreviewable on appeal. See id.For the first time on appeal, Milton contends that the
district court’s consideration of conduct from the dismissed
counts violated his Sixth Amendment rights under United States v.
Booker, 543 U.S. 220 (2005). Even after Booker, a district court
is required to calculate the guidelines range in the same manner
as before Booker and to make factual findings by a preponderance
of the evidence. United States v. Johnson, 445 F.3d 793, 797-98
(5th Cir.), cert. denied, 126 S. Ct. 2884 (2006). Milton has not
established error, plain or otherwise, as to his Booker claim.
See United States v. Calverley, 37 F.3d 160, 162 (5th Cir. 1994)
(en banc).
The judgment of the district court is AFFIRMED.