                                                       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.

                        --------------------
           Appeal from the United States District Court
                for the Southern District of Texas
                      USDC No. 2:05-CR-99-ALL
                        --------------------

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this opinion should not be published and is not precedent except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
                                 -2-

§ 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
                                  -3-

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
                               -4-

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.
