     Case: 18-50462      Document: 00515063338         Page: 1    Date Filed: 08/05/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 18-50462                           August 5, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

CARLOS ROSS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:17-CR-243-1


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM: *
       Carlos Ross pleaded guilty, pursuant to a written plea agreement, to
conspiracy to possess with intent to distribute and distribute 280 grams or
more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846,
and possession of a firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c). On appeal, Ross challenges the sufficiency of
the factual basis supporting his guilty plea for his firearm conviction.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 18-50462

      Because Ross did not object to the sufficiency of the factual basis in the
district court, our review is for plain error. See United States v. Walker, 828
F.3d 352, 354 (5th Cir. 2016). To prevail on plain error review, Ross must
“show (1) there is an error, (2) that is clear and obvious, and (3) that affects his
substantial rights.” Id. (internal quotation marks and citation omitted). “Even
if these three requirements are met, the decision to correct the forfeited error
still lies within our sound discretion, which we will not exercise unless the
error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
      A defendant is deemed to possess a firearm “in furtherance of the drug
trafficking offense when it furthers, advances, or helps forward that offense.”
United States v. Ceballos-Torres, 218 F.3d 409, 410-11 (5th Cir. 2000). The
evidence showed that while executing a warrant to search Ross’s home, law
enforcement found a Springfield XD .40 caliber semi-automatic pistol under a
mattress in the master bedroom; drugs and drug paraphernalia were found in
a safe in the closet of the master bedroom and in other areas of his home; he
sold drugs from his home; and he could not legally possess the firearm because
he was a convicted felon. On these facts, Ross has not demonstrated clear or
obvious error regarding the district court’s acceptance of the factual basis
supporting his guilty plea for his firearm conviction. See Walker, 828 F.3d at
354. Accordingly, his conviction is affirmed.
      Ross also asserts that the district court erred in determining the
quantity of cocaine base attributable to him for purposes of calculating his base
offense level under U.S.S.G. § 2D1.1. The Government contends that Ross’s
sentencing challenge is barred by the appeal waiver in his plea agreement. We
review “de novo whether an appeal waiver bars an appeal.” United States v.
Keele, 755 F.3d 752, 754 (5th Cir. 2014). The record reflects that Ross’s appeal



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                                 No. 18-50462

waiver was knowing and voluntary. See United States v. Jacobs, 635 F.3d 778,
781 (5th Cir. 2011); United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).
Furthermore, according to its plain language, the waiver applies to Ross’s
appeal of his sentence. See Jacobs, 635 F.3d at 781; Bond, 414 F.3d at 544.
Because the appeal waiver precludes review of Ross’s sentence, his appeal is
dismissed in part. Counsel for Ross is cautioned that pursuing an appeal
contrary to a valid waiver and without responding to the Government’s
invocation of the waiver is a needless waste of judicial resources that could
result in sanctions. See United States v. Gaitan, 171 F.3d 222, 223-24 (5th Cir.
1999).
      AFFIRMED IN PART; DISMISSED IN PART; SANCTION WARNING
ISSUED.




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