IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH 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 potentially

United States Court of Appeals

Fifth Circuit

F I L E D

November 29, 2012

Lyle W. Cayce

Clerk

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. 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

claim of ineffective assistance of counsel; a sentence in excess of the statutory

maximum; or an arithmetic error at sentencing. She asserts the waivercontentions raised by the Government have been rejected previously by a

motions panel of this court and, thus, there is no reason 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. 1999).

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

voluntary 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 the voluntariness 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 constituted an arithmetic error

which she retained the right to appeal. The record does not suggest the parties

intended the term “arithmetic error” to mean anything other than an error

involving a mathematical calculation. E.g., id. at 546 (without indication of

different intent, terms in appellate waiver given their “ordinary and natural

meaning”).

Logan’s challenge to the court’s drug-quantity determination is not a claim

involving the “usual and ordinary meaning” of arithmetic error. Id. at 545. 

2

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No. 11-10352

While Logan may be challenging the court’s factual findings 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