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Click here for the full text of this decision FACTS:On Oct. 18, 2004, defendant-appellant Anselmo Velasco, a citizen of Mexico, was arrested by the U.S. Border Patrol in Anson, Texas. Velasco was charged with the offense of illegal re-entry after deportation in violation of 8 U.S.C. �1326. On Jan. 6, 2005, Velasco pleaded guilty to the illegal reentry charge. Velasco was sentenced under the 2004 version of the U.S. Sentencing Guidelines March 25, 2005. The sentencing guideline applicable to a violation of �1326 calls for a base offense level of eight. This base offense level is increased by 16 levels if the defendant was previously deported after a conviction for a “crime of violence.” The presentence report (PSR) prepared by the U.S. Probation Office recommended a base offense level of eight, an increase of 16 levels because of Velasco’s 1996 Illinois conviction for aggravated battery, which the probation office classified as a “crime of violence,” and a decrease in three levels for Velasco’s acceptance of responsibility, for a total offense level of 21. Velasco objected to the characterization of his 1996 Illinois conviction for aggravated battery as a “crime of violence” for sentence-enhancement purposes. The district court overruled the objection and adopted the PSR’s characterization of Velasco’s Illinois aggravated battery conviction as a “crime of violence,” resulting in an offense level of 21. On March 25, 2005, the district court sentenced Velasco to 57 months of imprisonment, three years of supervised release and a special assessment of $100. Velasco then appealed his sentence on the ground that the district court improperly characterized his conviction for aggravated battery as a “crime of violence” and thus improperly enhanced his sentence. He also appeals the constitutionality of treating prior convictions as sentencing factors rather than offense elements under 8 U.S.C. �1326(b). HOLDING:Affirmed. An offense can be a “crime of violence” either because it fits within the enumerated list of qualifying offenses or because it has as an element the use of force. The district court enhanced Velasco’s sentence upon finding that Velasco was convicted under a specific disjunctive portion of the Illinois aggravated battery statute and that this disjunctive portion had as an element the use of physical force. Thus, the question before the court was whether the district court properly held that Velasco’s Illinois aggravated battery conviction “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The court concluded that the “use” of a deadly weapon to cause bodily harm � as expressly charged in Velasco’s indictment and required by the Illinois aggravated battery statute � involved the element of the use of destructive physical force against the victim’s person. As a result, we hold that a conviction under �12-4(b)(1) of the Illinois aggravated battery statute is a “crime of violence” for sentence-enhancement purposes. The court also declined to invalidate 8 U.S.C. �1326(b) as unconstitutional. Velasco had argued that 8 U.S.C. �1326(b) was unconstitutional in light of Apprendi v. New Jersey, 530 U.S. 466, 489-490 (2000), in which the Supreme Court held that facts that increase a sentence beyond the statutory maximum must as a general matter be found by a jury. But Apprendi explicitly refrained from overruling an earlier case upholding 8 U.S.C. �1326(b), and the court stated it was up to the U.S. Supreme Court to overrule that precedent. OPINION:King, J.; King, Garwood and Jolly, J.J.

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