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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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