     Case: 10-20858     Document: 00511775682         Page: 1     Date Filed: 03/02/2012




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

                                                                            FILED
                                                                           March 2, 2012
                                     No. 10-20858
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

GABRIEL GUZMAN-VILLA, also known as Juan Garcia,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:09-CR-296-1


Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
        Gabriel Guzman-Villa appeals the 51-month sentence imposed following
his guilty-plea conviction for conspiracy to transport, conceal, and harbor illegal
aliens within the United States. Guzman contends the district court plainly
erred in applying a four-level enhancement, pursuant to Sentencing Guideline
§ 3B1.1(a), based on finding he was an organizer or leader of a criminal activity.
The Government contends: Guzman waived this issue by acknowledging at



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20858    Document: 00511775682      Page: 2    Date Filed: 03/02/2012

                                  No. 10-20858

sentencing that the enhancement was correct; alternatively, the district court
did not plainly err by applying the enhancement.
      “Forfeiture is the failure to make the timely assertion of a right; waiver is
the intentional relinquishment of a known right.” United States v. Arviso-Mata,
442 F.3d 382, 384 (5th Cir. 2006). Whereas forfeited errors are reviewed for
plain error, waived errors are unreviewable. Id. By stating at sentencing that
she could not “argue against” the four-level enhancement, Guzman’s counsel
may have waived this issue. See United States v. Fernandez-Cusco, 447 F.3d
382, 384 (5th Cir. 2006) (similar circumstance). In any event, the claim fails
under plain-error review. For relief under that review, there must be, inter alia,
a clear or obvious error. E.g., United States v. Peltier, 505 F.3d 389, 391-92 (5th
Cir. 2007). For the reasons that follow, there was none.
      Under Guideline § 3B1.1(a), defendant’s offense level should be increased
by four levels “[i]f the defendant was an organizer or leader of a criminal activity
that involved five or more participants or was otherwise extensive”.            For
purposes of the enhancement, the five participants need not be charged or
convicted with defendant, but rather need only have knowingly participated in
some part of the criminal enterprise. See § 3B1.1, comment. (n.1); United States
v. Boutte, 13 F.3d 855, 860 (5th Cir. 1994). The uncontroverted evidence in the
presentence investigation report (PSR) established there were at least five
participants in the conspiracy. The PSR further established Guzman exercised
decision making authority; participated in the conspiracy; had a high degree of
participation in planning or organizing the smuggling; and exercised authority
over at least one participant.       See § 3B1.1, comment (n.4) (factors for
determining whether defendant was leader).
      AFFIRMED.




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