Filed: Jun. 08, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit UNITED STATES COURT OF APPEALS for the Fifth Circuit F I L E D June 7, 2007 Charles R. Fulbruge III No. 05-41582 Clerk 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
Summary: United States Court of Appeals Fifth Circuit UNITED STATES COURT OF APPEALS for the Fifth Circuit F I L E D June 7, 2007 Charles R. Fulbruge III No. 05-41582 Clerk 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 ..
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United States Court of Appeals
Fifth Circuit
UNITED STATES COURT OF APPEALS
for the Fifth Circuit
F I L E D
June 7, 2007
Charles R. Fulbruge III
No. 05-41582 Clerk
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
*
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that this opinion should not be published and is not precedent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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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
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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.
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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).
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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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.
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