### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-10352 Summary Calendar

UNITED STATES OF AMERICA, Plaintiff - Appellee

v. KIMBERLY LOGAN, Defendant - Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 3:10-CR-143-3

Before DAVIS, BARKSDALE, and ELROD, Circuit Judges. PER CURIAM: * Kimberly Logan appeals the sentence imposed following her guilty-plea conviction for conspiracy to possess and distribute pseudoephedrine while knowing and having a reasonable cause to believe it would be used to manufacture methamphetamine, in violation of 21 U.S.C. § 846. Following the denial of the Federal Public Defender’s motion to withdraw pursuant to Anders

v. California , 386 U.S. 738 (1967), the parties have briefed a p otentially U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Novembe r 29, 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the court hasd ete rm inedthat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 11-10352 Document: 00512067623 Page: 1 Date Filed: 11/29/2012No. 11-10352

nonfrivolous issue, which was identified in the order dated November 10, 2011, and concerns the appeal-waiver provision in Logan’s plea agreement. In the waiver, which the Government seeks to enforce, Logan retained the right to appeal only: the voluntariness of her guilty plea and appeal waiver; a
c laim of ineffective assistance of counsel; a sentence in excess of the s t a t u t o ry
m a xi m um; or an arithmetic error at sentencing. She asserts the waive r contentions raised by the Government have been rej e cted previously by a motions panel of this court and, thus, there is no r e a s o n to reconsider them. Contrary to Logan’s assertion, the motions-panel’s decision is not binding on this panel. E.g., In re Meyerland Co. , 910 F.2d 1257, 1263 (5th Cir. 1990). Therefore, the waiver-contentions by the Government may be addressed. In re Grand Jury Subpoena , 190 F.3d 375, 379 n.6 (5th Cir. 1 999). Appeal waivers are reviewed de novo and construed narrowly against the Government. United States v. Palmer , 456 F.3d 484, 488 (5th Cir. 2006). Such review is “a two-step inquiry: (1) whether the waiver was knowing and

v o l u nt ary and (2) whether the waiver applies to the circumstances at hand, based on the plain language of the agreement”. United States v. Bond , 414 F.3d 542, 544 (5th Cir. 2005). Logan does not challenge th e v o l untariness of her appeal waiver. Therefore, we address only the second inquiry. Logan contends: the district court committed a sentencing error by basing its drug-quantity determination on unreliable and conclusory statements in the presentence report and addendum, and this constitu ted an arithmetic error which she retained the right to appeal. The record does not suggest the parties i n t e nded the term “arithmetic error” to mean anything other than an erro r involving a mathematical calculation. E.g. , i d

. at 546 (without indication of dif f e r ent intent, terms in appellate waiver given their “ordinary and natural meaning”). Logan’s challenge to th e c ourt’ s drug-quantity determination is not a claim involving the “usual and ordinary meaning” of arithmetic error. Id. at 545.
2 Case: 11-10352 Document: 00512067623 Page: 2 Date Filed: 11/29/2012No. 11-10352

While Logan may be challenging the court’s factual f i n dings regarding drug quantity, she is not challenging the court’s arithmetic; even if the drug quantities the court relied on were inaccurate, Logan does not claim it erred in adding those quantities. Therefore, Logan’s claim does not fall within the “arithmetic error” exception of her appeal waiver. DISMISSED.

3 Case: 11-10352 Document: 00512067623 Page: 3 Date Filed: 11/29/2012