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

                                                FILED
                                                                   May 28, 2009
                                 No. 08-10013
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,

v.

EMPRA JERON HOLT,

                                            Defendant–Appellant.


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 7:05-CR-22-ALL


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
      On Petition for Rehearing, we deny rehearing, but we withdraw our prior
opinion, issued April 7, 2009, and substitute the following.
      Empra Jeron Holt pleaded guilty to one count of possession of fifty grams
or more of crack cocaine with intent to distribute, one count of possession of five
grams or more of crack cocaine with intent to distribute, and two counts of
possession of a firearm in furtherance of a drug trafficking offense. The district



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                  No. 08-10013

court sentenced him to serve a total of 495 months in prison. Holt now appeals
his conviction and sentence. We do not consider whether Holt filed a timely
notice of appeal because, for the reasons stated below, we conclude that his
appeal lacks merit. See United States v. Martinez, 496 F.3d 387, 388-89 (5th Cir.
2007), cert. denied, 128 S. Ct. 728 (2007).
      Holt argues that the district court erred and failed to comply with F ED.
R. C RIM. P. 11(b)(1) by accepting his pleas to the firearm charges. He contends
that these pleas were neither knowing nor voluntary due to his failure to
understand the essential elements of these charges and his failure to understand
his potential sentencing exposure.     Our review of the record refutes Holt’s
assertions concerning his understanding of the charges against him and the
potential sentence he could receive. Holt has shown no plain error in connection
with this claim. See United States v. Vonn, 535 U.S. 55, 59 (2002); see also
Blackledge v. Allison, 431 U.S. 63, 74 (1977); Hobbs v. Blackburn, 752 F.2d 1079,
1081 (5th Cir. 1985).
      Holt contends that the district court acted contrary to F ED. R. C RIM. P.
32(i) at sentencing by failing to make findings concerning the matters raised in
his objections to the PSR.      The record reflects that Holt knowingly and
voluntarily waived his right to bring most sentencing claims on appeal. See
United States v. Bond, 414 F.3d 542, 544 (5th Cir. 2005).           Because the
Government has invoked the appellate waiver clause found in Holt’s plea
agreement, and because this claim is covered by the waiver clause, we decline
to consider it. See id.; United States v. Story, 439 F.3d 226, 230-31 (5th Cir.
2006). Although it is not entirely clear whether Holt’s initial brief raised his
argument that the district court’s failure to make factual findings regarding his
objections to the PSR constituted arithmetic error or whether this was first
raised in a responsive pleading, see United States v. Jackson, 426 F.3d 301, 304
n.2 (5 th Cir. 2005), we will assume without deciding that the issue was presented
in a timely manner. The argument is nevertheless without merit. The district

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                                  No. 08-10013

court adopted the PSR without change. Failure to make specific findings, as
contemplated by F ED. R. C RIM. P. 32(i), regarding drug quantities and cash is not
an “arithmetic error.” Holt’s appeal waiver forecloses consideration of this issue.
      Holt also contends that the district court committed arithmetical error by
using cash that was seized from his home to calculate his sentence and by
determining that behavior underlying a dismissed charge was relevant conduct
for sentencing purposes. Assuming arguendo that consideration of these claims
is not precluded by the waiver, we conclude that they lack merit.
      Holt has shown no error in connection with the district court’s decision to
rely on the presentence report (PSR) with respect to the cash that was seized
from his home. See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006);
United States v. Carbajal, 290 F.3d 277, 287 (5th Cir. 2002). Holt likewise has
shown no error in connection with the district court’s relevant conduct
determination. See United States v. Alvarado-Santilano, 434 F.3d 794, 799 (5th
Cir. 2005). To the extent Holt argues that the district court erred by relying on
the PSR because it contained inaccurate and inconsistent statements, he has not
shown plain error. United States v. Fierro, 38 F.3d 761, 773 n.4, 774 (5th Cir.
1994); see also United States v. Vital, 68 F.3d 114, 119 (5th Cir. 1995).
      The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED. The Government’s alternative
motion for an extension of time to file an appellate brief is DENIED, as is the
Government’s request to dismiss the appeal.




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