United States v. Kimberly Logan , 498 F. App'x 445 ( 2012 )

Case: 11-10352 Document: 00512067623 Page: 1 Date Filed: 11/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 29, 2012
No. 11-10352
Summary Calendar Lyle W. Cayce
Clerk
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
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-10352 Document: 00512067623 Page: 2 Date Filed: 11/29/2012
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 waiver-
contentions 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.
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Case: 11-10352 Document: 00512067623 Page: 3 Date Filed: 11/29/2012
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.
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