* 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that this opinion should not be published and is not precedent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.

1

United States Court of Appeals

Fifth Circuit

FILED

June 7, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

No. 05-41582

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GERARDO FERNANDO CHAPA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

(5:05-CR-1033-ALL)

Before KING, DeMOSS, and OWEN, Circuit Judges.

PER CURIAM:*

In 2005, Gerardo Fernando Chapa (“Chapa”) pleaded guilty

without a written plea agreement to transporting illegal aliens

for financial gain in violation of 8 U.S.C. § 1324 and 18 U.S.C.

§ 2. He was sentenced to a twenty-seven-month term of
2

imprisonment and a three-year term of supervised release. He

appeals his conviction and sentence, arguing for the first time

on appeal that the district court committed error by enhancing

his sentence under U.S.S.G. § 2L1.1(b)(5), the “reckless

endangerment enhancement.” Because we find that Chapa waived his

right to assert an error in application of § 2L1.1(b)(5), we

cannot review his claim and we affirm his conviction and

sentence.

I.

The following facts summarize the evidence orally proffered

by the prosecutor at Chapa’s rearraignment:

On April 11, 2005, Border Patrol agents were

called to assist a Texas Department of Public Safety

trooper at the scene of an accident in Jim Hogg County.

When the Border Patrol agents arrived on scene, they

identified Chapa as the driver of a 2004 Chrysler

minivan. Chapa initially claimed he was alone in the

minivan, however, agents subsequently found nine

undocumented aliens hiding in the brush near the

vehicle. Eight of the undocumented aliens admitted to

being in the minivan when the accident occurred. They

also admitted that they were in the United States

unlawfully and that they had paid to be smuggled into

the United States. After being advised of his rights

and waiving the same, Chapa admitted that he had

transported the aliens in the minivan prior to the

crash. He told the agents that he had fallen asleep at

the wheel and lost control of the vehicle.

The pre-sentence report (“PSR”) further indicated that at the

time of the accident, eight of the aliens were seated on the

minivan’s bench seats and one was lying in the cargo area in the
3

rear. The alien in the cargo area was knocked unconscious and

seriously injured after the minivan turned over several times and

hit a tree. 

At his rearraignment, Chapa pleaded guilty without a written

plea agreement to the offense of transporting illegal aliens for

financial gain in violation of 8 U.S.C. § 1324 and 18 U.S.C. § 2.

The issue of whether Chapa recklessly endangered the aliens was

reserved for sentencing. The PSR recommended a base offense level

of twelve pursuant to U.S.S.G. § 2L1.1; a three-level increase

pursuant to U.S.S.G. § 2L1.1(b)(2)(A) for smuggling six or more

illegal aliens; an increase to offense level eighteen pursuant to

U.S.S.G. § 2L1.1(b)(5) because the offense involved intentionally

or recklessly creating a substantial risk of death or serious

bodily injury to another person; and an additional two-level

increase pursuant to U.S.S.G. § 2L1.1(b)(6)(1) for bodily injury

to a person. The PSR also recommended a three-level reduction for

acceptance of responsibility, resulting in a total offense level

of seventeen. Based on a total offense level of seventeen and a

Criminal History Category of II, Chapa’s guideline sentencing

range was twenty-seven to thirty-three months.

Chapa did not file any written objections to the PSR.

Defense counsel acknowledged at sentencing that he had not

objected to anything in the PSR, but commented that he questioned
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whether a reckless endangerment enhancement was warranted under

§ 2L1.1(b)(5) where only one passenger had been located in the

cargo area and all other passengers had been located in seats.

Specifically, counsel stated,

Your Honor, this is a very peculiar case. I went back

and forth trying to decide whether I should file

objections to the PSR or not. He’s been given an

enhancement for endangerment. Had he not fallen asleep

and gone off the road and been pulled over, I probably

would have filed an objection that it was not

endangerment because the material witness indicates

that everybody was sitting on the bench seat except for

one person in the cargo area. And so I think what they

would be relying on with regard to endangerment would

be one person in the cargo area.

In light of the case law now, I don’t know if that

is a substantial risk of serious bodily injury or

death. However, . . . he did go off the road and

thereafter wreck and there was some injury. And I don’t

want to make light of the situation, but there was, and

this is exactly the kind of thing we’re concerned of

with putting people in the car is this kind of

accident. And the accident did not result in death or

serious bodily injury. And the reason that I did not

want to get up there and make that argument is that I

know he’s probably very lucky.

But the fact is that there was no death or serious

bodily injury, which is sort of the thing that we’re

concerned [with] in endangerment cases. Because of the

wreck, I didn’t file an objection, but it is a strange

situation.

The court determined that the guideline sentencing range of

twenty-seven to thirty-three months, including the reckless

endangerment enhancement, was appropriate and sentenced Chapa to

twenty-seven months in prison and three years of supervised

release. Chapa timely appealed his conviction and sentence.
1 Chapa’s appointed counsel originally filed an Anders

brief and a motion to withdraw as counsel. We denied counsel’s

motion and ordered counsel to brief the Court whether the district

court erred by increasing Chapa’s offense level pursuant to

U.S.S.G. § 2L1.1(b)(5) and whether that claim was waived. 

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II.

Chapa argues on appeal that the district court committed

plain error by applying the reckless endangerment enhancement.1

The Government contends that Chapa waived this claim by

acknowledging the claim at sentencing and choosing not to pursue

it. We agree with the Government.

“Waiver and forfeiture are two different means by which a

defendant may react to an error by the government or the district

court.” United States v. Arviso-Mata, 442 F.3d 382, 384 (5th Cir.

2006) (internal quotation marks omitted). Forfeiture occurs when

a defendant fails to make the timely assertion of a right,

whereas waiver occurs when a defendant intentionally relinquishes

a known right. Id. Forfeited errors are reviewed for plain error;

waived errors are entirely unreviewable. Id. A defendant’s

attorney can waive a claim by his client “so long as the

defendant does not dissent from his attorney’s decision, and so

long as it can be said that the attorney’s decision was a

legitimate trial tactic or part of a prudent trial strategy.”

United States v. Reveles, 190 F.3d 678, 683 n.6 (5th Cir. 1999)

(internal quotation marks omitted). 
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Chapa’s only contention regarding waiver is that it does not

apply in this context, i.e., where a defendant chooses to forego

a challenge to the district court’s application of the sentencing

guidelines. He cites a 2006 Supreme Court case, Zedner v. United

States, 126 S. Ct. 1976 (2006), for the proposition that a

defendant cannot waive the proper application of the sentencing

guidelines. However, it is settled in this Circuit that a

defendant can waive an error in application of the guidelines,

see United States v. Arellano-Escalante, 174 F. App’x 817 (5th

Cir. 2006); United States v. Molina, 82 F. App’x 977 (5th Cir.

2003); United States v. Martinez, 79 F. App’x 12 (5th Cir. 2003);

see also Arviso-Mata, 442 F.3d at 384 (indicating that waiver

could apply in the sentencing context under the right

circumstances); and Zedner, which concerns the Speedy Trial Act,

does not impact this line of precedent. Accordingly, because

Chapa did not dissent from counsel’s decision not to challenge

the reckless endangerment enhancement and because Chapa has not

shown that counsel’s decision not to pursue such a challenge was

unreasonable, counsel’s waiver is valid and we cannot review

Chapa’s claim on appeal.

III.

For the foregoing reasons, Chapa’s conviction and sentence

are AFFIRMED.