                                                            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that this opinion should not be published and is not precedent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.
                                1
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

                                        2
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

                                       3
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.

                                         4
                                                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.
                                 5
     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.

                                             6
