F I L E D

United States Court of Appeals

Tenth Circuit

August 15, 2005

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES of AMERICA,

Plaintiff-Appellee,

v.

LORENZO GONZALEZCORONADO,

Defendant-Appellant.

No. 03-2226

Appeal from the United States District Court

for the District of New Mexico

(D.C. No. CR-03-720-JC)

Kurt J. Mayer, Assistant Federal Public Defender (Stephen P. McCue, Federal

Public Defender, with him on the briefs), Las Cruces, New Mexico for

Defendant-Appellant.

David N. Williams, Assistant United States Attorney (David C. Iglesias, United

States Attorney, and Norman Cairns, Assistant United States Attorney, on the

briefs), Albuquerque, New Mexico, for Plaintiff-Appellee.

Before EBEL, McWILLIAMS and HENRY, Circuit Judges.

EBEL, Circuit Judge.
2

Defendant-Appellant Lorenzo Gonzalez-Coronado (“Gonzalez”) appeals the

prison sentence he received for entering the United States unlawfully after having

previously been deported, in violation of 8 U.S.C. § 1326(a). Gonzalez first

contends the district court, in sentencing him, erred by treating his prior felony

conviction for attempted aggravated assault as an aggravated felony under

8 U.S.C. § 1326(b)(2). To qualify as an aggravated felony under § 1326(b)(2), a

prior conviction must have resulted in at least a one-year prison sentence. The

Government concedes, and we agree, that the district court erred in treating

Gonzalez’s prior conviction as an aggravated felony under § 1326(b)(2) because

his prior conviction only resulted in probation. Nonetheless, this error was

harmless because Gonzalez’s prior conviction was still a felony which is

sufficient, under 8 U.S.C. § 1326(b)(1), to support the thirty-seven-month

sentence the district court imposed. 

Gonzalez also challenges the application of the federal sentencing

guidelines to impose that thirty-seven-month sentence. We conclude the district

court properly calculated Gonzalez’s sentencing range under the guidelines. The

district court, however, committed plain error when it treated the guidelines as

mandatory. See United States v. Booker, 125 S. Ct. 738, 756-57 (2005). 

Nonetheless, we do not reverse because it does not “seriously affect[] the

fairness, integrity, or public reputation of judicial proceedings.” United States v.
3

Gonzalez-Huerta, 403 F.3d 727, 736 (10th Cir. 2005) (en banc). 

I. FACTS

Gonzalez is a citizen of Mexico. In 1992, he pled guilty in Kansas state

court to a felony, attempted aggravated assault. The Kansas court sentenced

Gonzalez to one to five years’ probation. As a result of that state-court

conviction, the United States deported Gonzalez. 

In January 2003, authorities discovered Gonzalez in the United States

unlawfully. He subsequently pled guilty to entering the United States unlawfully

after having been previously deported, in violation of 8 U.S.C. § 1326(a). In

calculating Gonzalez’s sentence, the district court treated his prior Kansas

conviction for attempted aggravated assault as an aggravated felony under

8 U.S.C. § 1326(b)(2), and as a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A)(ii). The district court imposed a thirty-seven-month sentence. 

Gonzalez timely appeals. See Fed. R. App. P. 4(b)(1)(A)(i). 

II. DISCUSSION

A. 8 U.S.C. § 1326

Gonzalez pled guilty to being in the United States unlawfully after having

been previously deported, violating 8 U.S.C. § 1326(a). “The penalties for

reentering the country after deportation vary widely depending upon an alien’s

criminal history.” United States v. Soto-Ornelas, 312 F.3d 1167, 1169 (10th Cir.
1 8 U.S.C. § 1326(a) provides that 

any alien who--

(1) has been denied admission, excluded,

deported, or removed or has departed the United States

while an order of exclusion, deportation, or removal is

outstanding, and thereafter

(2) enters, attempts to enter, or is at any time

found in, the United States, unless (A) prior to his

reembarkation at a place outside the United States or his

application for admission from foreign contiguous

territory, the Attorney General has expressly consented

to such alien’s reapplying for admission; or (B) with

respect to an alien previously denied admission and

removed, unless such alien shall establish that he was

not required to obtain such advance consent under this

chapter or any prior Act,

shall be fined under Title 18, or imprisoned not more than 2 years, or both. 

2 Section 1326(b) provides that

Notwithstanding subsection (a) of this section, in the case of

any alien described in such subsection--

(1) whose removal was subsequent to a conviction

for commission of three or more misdemeanors

involving drugs, crimes against the person, or both, or a

felony (other than an aggravated felony), such alien shall

(continued...)

4

2002). Where the defendant has no prior criminal history, § 1326(a) provides for

a maximum two-year sentence.1

 See Soto-Ornelas, 312 F.3d at 1169-70. A

defendant who has had a prior felony conviction, however, is subject to a

maximum ten-year sentence. See 8 U.S.C. § 1326(b)(1).2 And if the defendant’s
2

(...continued)

be fined under Title 18, imprisoned not more than 10

years, or both.

3 Title 8, U.S.C. § 1326(b)(2) provides that “[n]otwithstanding

subsection (a) of this section, in the case of any alien described in such

subsection . . . whose removal was subsequent to a conviction for commission of

an aggravated felony, such alien shall be fined under such Title, imprisoned not

more than 20 years, or both[.]” 

4 The statute is missing a word. The statute’s accompanying footnote

(continued...)

5

prior felony is an “aggravated felony,” he is subject to a maximum twenty-year

prison sentence. 8 U.S.C. § 1326(b).3

 This court reviews the district court’s

interpretation of 8 U.S.C. § 1326 de novo. See United States v. Zamudio, 314

F.3d 517, 521 (10th Cir. 2002).

Gonzalez contends that the district court erred in treating his prior Kansas

felony conviction as an aggravated felony under 8 U.S.C. § 1326(b)(2), which

permits a maximum sentence of twenty years. Gonzalez argues that the district

court, instead, should have sentenced him under 8 U.S.C. § 1326(a), which

provides for only a two-year maximum sentence. 

To define “aggravated felony” under § 1326(b)(2), this court looks to

8 U.S.C. § 1101(a)(43). See Zamudio, 314 F.3d at 522; Soto-Ornelas, 312 F.3d at

1169. In pertinent part, 8 U.S.C. § 1101(a)(43)(F) defines an aggravated felony

as “a crime of violence (as defined in section 16 of Title 18, but not including a

purely political offense) for which the term of imprisonment [is]4 at least one
4

(...continued)

suggests this word should be is. See 8 U.S.C. § 1101 n. 3; see also United States

v. Saenz-Mendoza, 287 F.3d 1011, 1013 & n.3 (10th Cir. 2002) (inserting “is”). 

5 Other circuits have distinguished between cases involving sentences

directly to probation and sentences that are, instead, suspended, thus resulting in

probation. See United States v. Landeros-Arreola, 260 F.3d 407, 410 (5th Cir.

2001); Guzman-Bera, 216 F.3d at 1020-21; see also United States v.

Martinez-Villalva, 232 F.3d 1329, 1333 (10th Cir. 2000) (noting parties agreed

that if district court imposed one-year suspended sentence, prior conviction would

qualify as aggravated felony, but if court originally imposed probation, prior

(continued...)

6

year.” Gonzalez concedes that his prior conviction for attempted aggravated

assault is a crime of violence under 18 U.S.C. § 16. Nonetheless, he argues that

his prior conviction did not involve a prison term of at least one year. To

determine whether a prior conviction involved at least a one-year prison sentence,

this court looks to the actual sentence imposed. See, e.g., Soto-Ornelas, 312 F.3d

at 1169 & n.2; see also United States v. Hidalgo-Macias, 300 F.3d 281, 284 (2d

Cir. 2002); United States v. Guzman-Bera, 216 F.3d 1019, 1020 (11th Cir. 2000). 

In this case, the Kansas court sentenced Gonzalez directly to probation. For this

reason, the Government concedes that Gonzalez’s Kansas conviction was not an

aggravated felony under 8 U.S.C. § 1326(b)(2). We agree. 

Although we have not yet addressed this issue under 8 U.S.C.

§ 1101(a)(43)(F), we have held, in applying a similar statutory definition of

aggravated felony under § 1101(a)(43)(G), that a sentence directly to probation

for a one- to two-year period is not a one-year prison term.5 In United States v.
5

(...continued)

conviction would not be aggravated felony). In this case, however, the parties do

not dispute that the Kansas court sentenced Gonzalez directly to probation. We

do not, therefore, consider here a suspended sentence. See United States v.

Hernandez-Rodriguez, 388 F.3d 779, 781 (10th Cir. 2004) (holding 365-day

sentence, with 305 days suspended, satisfies § 1101(a)(43)(F)’s “year of

imprisonment requirement”). 

7

Martinez-Villalva, 232 F.3d 1329, 1332 (10th Cir. 2000), this court applied

8 U.S.C. § 1101(a)(43)(G), which defines an aggravated felony to include “a

theft . . . or burglary offense for which the term of imprisonment [is] at least one

year.” There, we held that the government had failed to meet its burden of

proving that the defendant’s prior conviction involved a prison term of at least

one year where it appeared that the sentence, instead, was only to probation. See

Martinez-Villalva, 232 F.3d at 1333-34. That reasoning applies as well to the

statutory definition of aggravated felony at issue here, 8 U.S.C. § 1101(a)(43)(F). 

Other circuits, too, have held that a sentence of probation is insufficient to

meet 8 U.S.C. § 1101(a)(43)’s statutory definition of an aggravated felony as one

resulting in a prison term of at least one year. See, e.g., Landeros-Arreola, 260

F.3d at 410 (applying 8 U.S.C. § 1101(a)(43)(F)); Guzman-Bera, 216 F.3d at

1020-21 (applying 8 U.S.C. § 1101(a)(43)(G)). 

We hold, therefore, that the sentence the Kansas court imposed on

Gonzalez, one to five years’ probation, was not a term of imprisonment of at least

one year for the purpose of defining an aggravated felony under 8 U.S.C.
6

In relying on 8 U.S.C. § 1326(b)(1) to affirm Gonzalez’s sentence,

we note that the United States was not required to charge sentencing

enhancements under 8 U.S.C. § 1326(b) in the criminal information. See

Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998) (specifically

addressing § 1326(b)(2)); see also Soto-Ornelas, 312 F.3d at 1170. At the plea

proceeding, defense counsel acknowledged that § 1326(b)’s sentencing

enhancement was not an element of the offense. 

Further, before accepting Gonzalez’s guilty plea, the district court advised

Gonzalez that he faced up to twenty years in prison. Cf. United States v.

(continued...)

8

§ 1101(a)(43)(F). Therefore, the district court erred in treating Gonzalez’s prior

Kansas conviction as an aggravated felony under 8 U.S.C. § 1326(b)(2).

In light of that error, Gonzalez argues that he is entitled to be resentenced 

because his current thirty-seven-month sentence exceeds the maximum two-year

sentence available under 8 U.S.C. § 1326(a). We need not remand for

resentencing on this ground, however. Gonzalez has never disputed that his prior

Kansas conviction for attempted aggravated assault was a felony conviction. 

(R.O.A. Vol. V, at 3 (defense counsel requested, at first sentencing hearing, that

district court find that Gonzalez’s Kansas conviction “was simply a felony

conviction”); Aplt. Br. at 4 (“Mr. Gonzalez was arrested and charged in Kansas

state court with attempted aggravated assault, a class E felony. He pleaded guilty

to the charge.”).) And, under 8 U.S.C. § 1326(b)(1), a defendant like Gonzalez

who has had a prior felony conviction, other than an aggravated felony, still faces

a maximum ten-year sentence, which is more than sufficient to support

Gonzalez’s thirty-seven-month sentence.6 Therefore, the district court’s treating
6

(...continued)

Westcott, 159 F.3d 107, 112-13 (2d Cir. 1998) (holding it was harmless error to

advise defendant, before accepting his guilty plea, that he faced lengthier

sentence than he actually faced under prior version of § 1326(b), where defendant

never requested to withdraw his plea after discovering this fact). And, at that

plea proceeding, defense counsel acknowledged that without the § 1326(b)(2)

enhancement, Gonzalez would face up to ten years in prison. Therefore, relying

on 8 U.S.C. § 1326(b)(1) now does not present any notice or charging concerns.

7 For the first time at oral argument, Gonzalez argued the United

States failed to prove he had a prior felony conviction at all because it did not

provide the district court with a copy of the prior Kansas judgment. We decline

to address this belatedly-raised issue. See United States v. Sandia, 188 F.3d

1215, 1218 n.2 (10th Cir. 1999) (holding appellant who did not raise issue until

oral argument had waived it). We do note, however, that it is not clear from the

record submitted on appeal whether or not the district court or probation officer

had received a certified copy of the Kansas judgment before sentencing. If this

issue had been raised it would have been Gonzalez’s obligation to insure that an

adequate appellate record was before us. 

9

Gonzalez’s prior conviction as an aggravated felony under 8 U.S.C. § 1326(b)(2)

was harmless.7

 See Fed. R. Crim. P. 52(a).

B. U.S.S.G. § 2L1.2(b)(1)(A).

In calculating Gonzalez’s sentencing range, the district court treated

Gonzalez’s prior Kansas conviction as a crime of violence under U.S.S.G.

§ 2L1.2(b)(1)(A) and enhanced his base offense level by sixteen levels. Gonzalez

argues the district court erred in doing so because he received only probation for

that Kansas conviction. 

Gonzalez raised this issue at sentencing. We review the district court’s

interpretation of the guidelines de novo, see Martinez-Villalva, 232 F.3d at 1332,
8 The district court, therefore, calculated Gonzalez’s sentence using

the 2002 sentencing guidelines. 

10

applying the guidelines in effect at the time the district court sentenced Gonzalez,

in September 2003,8

 see U.S.S.G. § 1B1.11(a). At that time, § 2L1.2(b)(1)(A)(ii)

provided that “[i]f the defendant previously was deported . . . after . . . a

conviction for a felony that is . . . a crime of violence . . . , increase [the base

offense level] by 16 levels.” And § 2L1.2(b)(1)(A)(ii)’s application note defines

a “crime of violence” as 

(1) . . . an offense under federal, state, or local law that has as an

element the use, attempted use, or threatened use of physical force

against the person of another; and

(2) includes murder, manslaughter, kidnapping, aggravated assault,

forcible sex offenses (including sexual abuse of a minor), robbery,

arson, extortion, extortionate extension of credit, and burglary of a

dwelling. 

Id., cmt. n. 1(B)(ii). 

Gonzalez’s only argument under the Guidelines § 2L1.2(b)(1)(A)(ii) is that

his state conviction should not be considered a crime of violence because he was

sentenced to probation rather than to imprisonment. However, unlike 8 U.S.C.

§ 1326(b)(2)’s requirement that an aggravated felony must result in a sentence of

at least one year, U.S.S.G. § 2L1.2(b)(1)(A)(ii) does not require that, to be a

“crime of violence,” a prior conviction result in a sentence of any particular

length. See United States v. Ramirez, 367 F.3d 274, 278 (5th Cir.), cert. denied,
9 Because Gonzalez does not otherwise dispute that his prior

conviction constituted a crime of violence, we do not address any other issues

with regards to this enhancement.

10 This court permitted the parties to file supplemental briefs addressing

Blakely. The parties filed their supplemental briefs after Blakely but prior to the

Supreme Court decided Booker. So the arguments do not directly address the

issues that have since become relevant in applying Booker. 

11

125 S. Ct. 145 (2004); United States v. Pimental-Flores, 339 F.3d 959, 964 (9th

Cir. 2003). Therefore, the district court did not err in applying the guidelines

when it enhanced Gonzalez’s base offense level by sixteen under

§ 2L1.2(b)(1)(A)(ii), based upon Gonzalez’s prior Kansas conviction for

attempted aggravated assault, even though that prior conviction resulted in only

probation.9

C. Booker.

For the first time on appeal, Gonzalez argues that he is entitled to 

resentencing in light of Blakely v. Washington, 542 U.S. 296 (2004),10 and

Booker, 125 S. Ct. 738. Booker applies “to all cases on direct review.” Booker,

125 S. Ct. at 769. Nevertheless, because Gonzalez did not raise this claim before

the district court, we review only for plain error. See Gonzalez-Huerta, 403 F.3d

at 732. “Plain error occurs when there is (1) error, (2) that is plain, which

(3) affects substantial rights . . . .” Id. (quotation omitted). If Gonzalez is able to

meet those three requirements, then, “[u]nder the fourth prong of plain-error

review, [this] court may exercise its discretion to notice forfeited error only if it
12

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. at 736.

In Booker, the Court “reaffirm[ed that] [a]ny fact (other than a

prior conviction) which is necessary to support a sentence exceeding

the maximum authorized by the facts established by a plea of guilty

or a jury verdict must be admitted by the defendant or proved to a

jury beyond a reasonable doubt.” Booker, 125 S. Ct. at 756. As a

result, the Court held that mandatory application of the Guidelines

violates the Sixth Amendment when judge-found facts, other than

those of prior convictions, are employed to enhance a sentence.

Gonzalez-Huerta, 403 F.3d at 731. “To remedy this constitutional infirmity

created by applying judge-found facts to mandatory sentencing guidelines, the

[Booker] Court severed the provision of the Sentencing Reform Act making

application of the Guidelines mandatory,” 18 U.S.C. § 3553(b)(1). United States

v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005). 

“[T]here are two distinct types of error that a court sentencing prior to

Booker could make.” Gonzalez-Huerta, 403 F.3d at 731. First, the sentencing

court could violate the Sixth Amendment “by relying upon judge-found facts,

other than those of prior convictions, to enhance a defendant’s sentence

mandatorily.” Id. Second, “a sentencing court could err by applying the

Guidelines in a mandatory fashion, as opposed to a discretionary fashion, even

though the resulting sentence was calculated solely upon facts that were admitted

by the defendant, found by the jury, or based upon the fact of a prior conviction.” 

Id. at 731-32. 
13

In this case, there is no Sixth Amendment error because the district court

enhanced Gonzalez sentence based only upon the existence of his prior violent

felony conviction. See United States v. Sierra-Castillo, 405 F.3d 932, 935, 941

(10th Cir. 2005) (applying U.S.S.G. § 2L1.2(b)(1)(A)(ii)); Gonzalez-Huerta, 403

F.3d at 730, 732 (addressing sentence imposed for violating 8 U.S.C. § 1326 and

enhanced by prior convictions); see also United States v. Moore, 401 F.3d 1220,

1221, 1225 (10th Cir. 2005) (holding characterizing prior felony as violent, for

purposes of Armed Career Criminal Act, is legal rather than factual

determination, which “does not trigger the Sixth Amendment concerns addressed

in Booker”). 

The district court, however, did commit non-constitutional Booker error by

treating the guidelines as mandatory. See Gonzalez-Huerta, 403 F.3d at 732. 

This error amounts to plain error sufficient to satisfy the first two prongs of the

plain-error analysis. See United States v. Williams, 403 F.3d 1188, 1199-1200

(10th Cir. 2005), petition for cert. filed, (July 12, 2005) (No. 05-5327);

Gonzalez-Huerta, 403 F.3d at 732. 

Gonzalez, then, has the burden of establishing that this plain error affected

his substantial rights. See Gonzalez-Huerta, 403 F.3d at 732-33. “Satisfying”

this requirement “‘usually means that the error must have affected the outcome of

the district court proceedings.’” Id. at 732 (quoting United States v. Cotton, 535
11 We note that the district court imposed a sentence at the bottom of

the guideline range and, in denying Gonzalez’s request for a downward departure

from that range, did comment “I don’t find any grounds for downward departure. 

I may not agree with what the sentencing guidelines are, but that doesn’t give me

the right to do a downward departure.” 

14

U.S. 625, 632 (2002)). Therefore, Gonzalez must show that, in light of the entire

record, “there is a reasonable probability” that the error affected his sentence. 

United States v. Dominguez Benitez, 542 U.S. 74, 124 S. Ct. 2333, 2340 (2004);

see also Gonzalez-Huerta, 403 F.3d at 733. Because we hold that Gonzalez does

not satisfy the fourth prong of United States v. Olano, 507 U.S. 725, 735-36

(1993), we need not decide whether he satisfies the third prong of prejudice.11

“Under the fourth prong of plain-error review, [this] court may exercise its

discretion to notice a forfeited error only if it seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Gonzalez-Huerta, 403

F.3d at 736. Here, as we have said, Gonzalez did not suffer constitutional error. 

“In the instance of non-constitutional error the standard for satisfying the fourth

prong of the plain error test is demanding.” Dazey, 403 F.3d at 1178. “[F]ailing

to correct non-Sixth Amendment Booker error when the defendant has failed to

preserve the error in the district court will rarely be found to [have] seriously

affected the fairness, integrity, or public reputation of judicial proceedings.” 

Sierra-Castillo, 405 F.3d at 941-42; see also United States v. Trujillo-Terrazas,

405 F.3d 814, 820 (10th Cir. 2005) (calling this a “formidable” standard). That is
15

because “a non-constitutional Booker error is ‘error’ at all only as the

serendipitous consequence of the severability analysis the Supreme Court

employed to correct the constitutional infirmity created by the combination of

judicial factfinding and mandatory application of the Guidelines.” 

Trujillo-Terrazas, 405 F.3d at 820-21; see also Gonzalez-Huerta, 403 F.3d at 738. 

Nor is there any reason to conclude that the sentence the district court

imposed in this case “is anything but fair and reasonable.” Trujillo-Terrazas, 405

F.3d at 820; see also Gonzalez-Huerta, 403 F.3d at 738-39. Gonzalez’s sentence

fell within the applicable guideline range and there is no objective evidence in the

record to support a sentence below that guideline range. Therefore, Gonzalez

“received a sentence similar to the sentence most similarly historied defendants in

the United States would have received for the crime for which he was convicted.” 

Gonzalez-Huerta, 403 F.3d at 743 (Ebel, J., concurring). 

In addition, we consider “[w]hether the district court would simply

reimpose the same sentence on remand, or whether instead the sentence ‘would

likely change to a significant degree if [the case] were returned to the district

court for discretionary resentencing . . . .’” United States v. Lawrence, 405 F.3d

888, 907 (10th Cir. 2005) (quoting Gonzalez-Huerta, 403 F.3d at 744 (Ebel, J.,

concurring)). Here, again, Gonzalez has failed to show any reason why the

district court might impose a significantly different sentence if we remanded for
16

discretionary resentencing. There is nothing remarkable about Gonzalez’s

criminal history. See Trujillo-Terrazas, 405 F.3d at 820. Nor does Gonzalez

suggest any “unique circumstances” that might provide the district court with a

reason to impose a sentence outside the now advisory guideline range. Williams,

403 F.3d at 1200. Core notions of justice would not be offended if this court

declined to notice a sentencing error that had no significant effect on Gonzalez’s

sentence. See Lawrence, 405 F.3d at 908; Gonzalez-Huerta, 403 F.3d at 739. 

Therefore, we decline to notice the district court’s sentencing error and, instead,

AFFIRM Gonzalez’s sentence. 

III. CONCLUSION

For these reasons, we AFFIRM Gonzalez’s thirty-seven-month sentence.