One year sentence of probation for assault under Kansas law does not qualify offense as aggravated felony for sentencing under 8 U.S.C. § 1326(b)(2)

SENTENCING United States v. Gonzalez-Coronado, No. 03-2226, ___ F.3d ___ (10th Cir. Aug. 15, 2005)(New Mexico). Appeal of sentence for illegal reentry to United States after previous deportation in violation of 8 U.S.C. § 1326(a). HELD: (1) Sentence imposed by Kansas court for one to five years probation for felony assault conviction was not term of imprisonment of at least one year for purpose of defining aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Therefore, district court erred in treating defendant’s prior Kansas conviction as aggravated felony for sentencing purposes under 8 U.S.C. § 1326. Error was harmless, however, because under 8 U.S.C. § 1326(b)(1), defendant with prior felony conviction, other than aggravated felony, still faces maximum ten-year sentence, which in this case was more than sufficient to support thirty-seven-month sentence actually imposed on defendant. (2) Under United States v. Booker, 125 S.Ct. 738 (2005), district court committed plain error through mandatory application of federal sentencing guidelines. However, where defendant failed to show any reason why district court might impose significantly different sentence if case were remanded for discretionary resentencing, court of appeals will not notice error because core notions of justice are not offended by declining to correct sentencing error with no significant effect on sentence. Read the opinion here.