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United States v. Milton, 06-60925 (2007)

Court: Court of Appeals for the Fifth Circuit Number: 06-60925 Visitors: 260
Filed: Jun. 19, 2007
Latest Update: Feb. 21, 2020
Summary: 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 7
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                                                       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this opinion should not be published and is not precedent except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.

Source:  CourtListener

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