## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-1285

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Northern District of Iowa. Jorge Antonio Lazo, * * [UNPUBLISHED] Appellant. *

___________ Submitted: September 20, 2010 Filed: September 29, 2010

___________ Before BYE, BEAM, and SMITH, Circuit Judges.

___________ PER CURIAM. Jorge Lazo re-entered the United Stat es illegally after being removed following his California state conviction for making a terroristic threat. Lazo entered a plea of guilty to the offense of illegal re-entry and was sentenced to a 46-month term of imprisonment. The district court 1 concluded Lazo’s California conviction for “terroristic threats” qualified as anaggravated felony under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b )(1). This resulted in an advisory sentencing guidelines range of 18 to 24 m onths. The district court imposed a non1 The Honorable Linda R. Reade, Chief J udge, United States District Court for the Northern District of Iowa.guideline sentence of 46 months of imprisonment based on a myriad of factors, including Lazo’s likelihood of dangerousne ss to the community, three prior DWIs, repeated illegal entries into the United Stat es, and lenient sentencing treatment that failed to deter Lazo in the pa st. Lazo appeals his senten ce, arguing the district court erred in finding the California conviction coul d be classified as an aggravated felony. 2
Normally, we review the district court’s conclusion that a prior conviction qualifies as an aggravated felony under U.S.S.G. § 2L1.2 de novo, United States v. Garcia-Medina , 497 F.3d 875, 876 (8th Cir. 2007), but we find it unnecessary to do so in this case, because any potential error was harmless. The district court was aware of the alternate advisory guidelines, and it expressly stated it would impose an upward variance in Lazo’s sentence, regardless of any error in the calculation of the advisory guidelines or the applicability of the § 2L1.2 adjustment. Sent. Tr. at 24-26. As a result, any error applying the enhan cement under § 2L1.2 was harmless. See United States v. Davis , 583 F.3d 1081, 1094-95 (8th Cir. 2009) (concluding that any error in classifying a defendant as a career offender would be harmless as the district court specifically stated it would impose the sa me sentence even if defendant was not deemed a career offender).
Accordingly, we affirm.

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2There currently appears to be a ci rcuit split on the question of whether a conviction under California Pena l Code §422, which is at issue here, qualifies as an aggravated felony. Compare Rosales-Rosales v. Ashcroft , 347 F.3d 714, 717 (9th Cir. 2003) (concluding that the California statute qualifies as an aggravated felony because it has as an element the threaten ed use of physical force), with United States v. De La Rosa-Hernandez , 264 Fed.Appx. 446 (5th Cir. 2008) (unpublished) (concluding that the California statute is not automatically classified as an aggravated felony because it does not necessarily include the th reatened use of physical force). -2-