IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40805 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TRINIDAD CRUZ-GONZALEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas (L-02-CR-137-1) -------------------- January 7, 2003

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Defendant-Appellant Trinidad Cruz-Gonzalez (“Cruz”) was

arrested attempting to enter the United States. His sentence was

substantially increased as a result of a prior conviction for

aggravated battery. Cruz argues that aggravated battery as defined

by Illinois law is not an crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A) so as to merit a 16-level increase for sentencing

purposes. He further argues that the felony and aggravated felony

provisions of § 1326(b)(1) and (2) are unconstitutional because

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. they increase the penalty for a crime beyond the prescribed

statutory maximum without being submitted to a jury and being

proved beyond a reasonable doubt.

Because the issue whether the Illinois aggravated battery

statute comprises a crime of violence cannot be readily resolved by

reference to existing authority, Cruz has not demonstrated that the

district court committed clear or obvious error rising to the level

of plain error. See United States v. Hull,

(5th

Cir. 1998).

As Cruz concedes, his second argument is foreclosed by

Almendarez-Torres v. United States,

(U.S. 1998). In

the absence of any convincing argument for error, the sentence

imposed by the district court is

AFFIRMED.

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