United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 4, 2006
Charles R. Fulbruge III
Clerk
No. 05-40900
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LORENZO ARELLANO-ESCALANTE,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CR-99-ALL
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Before Barksdale, Stewart, and Clement, Circuit Judges.
PER CURIAM:*
Lorenzo Arellano-Escalante (Arellano) appeals his guilty-
plea conviction and sentence for illegally reentering the United
States after a previous deportation, in violation of 8 U.S.C.
§ 1326. Arellano was sentenced to 46 months in prison and three
years of supervised release.
For the first time on appeal, Arellano argues that his
guideline imprisonment range was erroneously increased by 16
levels on the ground that his 1993 Texas conviction of sexual
assault was a “crime of violence” under U.S.S.G.
*
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this opinion should not be published and is not precedent except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.
No. 05-40900
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§ 2L1.2(b)(1)(A)(ii). The Government contends that this issue is
effectively unreviewable in that Arellano affirmatively waived it
below. Arellano replies that there is no “indication” that he,
as opposed to his counsel, made a “knowing and intentional
‘affirmative choice’” to forego appellate review of this claim.
Waiver, as opposed to forfeiture, is the “‘intentional
relinquishment or abandonment of a known right.’” See United
States v. Olano, 507 U.S. 725, 733 (1993) (citation omitted).
A claim that is waived is “entirely unreviewable, unlike
forfeited errors, which are reviewable for plain error.” See
United States v. Musquiz, 45 F.3d 927, 931 (5th Cir. 1995). We
have indicated that 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) (addressing waiver of Sixth
Amendment confrontation right) (quoting United States v.
Stephens, 609 F.2d 230, 232-33 (5th Cir. 1980)) (emphasis added).
In applying the 16-level increase, the district court noted
that Arellano had been indicted in Texas for the aggravated
sexual assault of a child under the age of 14 and that he had
pleaded guilty to the lesser included offense of sexual assault.
Arellano has not established that the court was not authorized to
consider the underlying offense conduct, at least insofar as this
No. 05-40900
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consideration was limited to the charging instrument. See United
States v. Izaguirre-Flores, 405 F.3d 270, 275 n.14 (5th Cir.),
cert. denied, 126 S. Ct. 253 (2005). Although the extent to
which such underlying conduct may be considered remains unsettled
in this circuit, see United States v. Sarmiento-Funes, 374 F.3d
336, 338 n.1 (5th Cir. 2004), Arellano has not established that
his attorney’s decision not to raise the § 2L1.2(b)(1)(A)(ii)
challenge in the district court was not prudent or reasonable.
See Reveles, 190 F.3d at 683 n.6; cf. United States v. Jaimes-
Jaimes, 406 F.3d 845, 847-49 (7th Cir. 2005) (concluding that
attorney’s waiver of objection to § 2L1.2(b)(1)(A)(ii) increase
was not reasonable and could not be attributed to defendant, when
increase was plain error). Accordingly, Arellano has not shown
that the waiver was invalid. As an alternative matter, he has
not established that the 16-level increase was plain error.
See United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.
1994) (en banc).
Arellano’s challenge to the constitutionality of § 1326(a)
and (b) is foreclosed by Almendarez-Torres v. United States, 523
U.S. 224, 235 (1998). Although Arellano contends that
Almendarez-Torres was incorrectly decided and that a majority of
the Supreme Court would overrule Almendarez-Torres in light of
Apprendi v. New Jersey, 530 U.S. 466 (2000), we have repeatedly
rejected such arguments on the basis that Almendarez-Torres
remains binding. See United States v. Garza-Lopez, 410 F.3d 268,
No. 05-40900
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276 (5th Cir.), cert. denied, 126 S. Ct. 298 (2005). Arellano
properly concedes that his argument is foreclosed in light of
Almendarez-Torres and circuit precedent, but he raises it here to
preserve it for further review.
The district court’s judgment is AFFIRMED.