                    UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT
                          __________________________

 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                       No. 04-3166

 ALONZO L. PLAKIO, JR.,

        Defendant - Appellant.


                                        ORDER
                                Filed December 16, 2005


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


      Appellant’s motion to publish the order and judgment filed October 3, 2005,

is granted. The published opinion is attached.



                                        Entered for the Court
                                        Clerk of Court


                                        By:
                                              Deputy Clerk
                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                   PUBLISH
                                                                        OCT 3, 2005
                   UNITED STATES COURT OF APPEALS
                                                                        Clerk of Court
                              TENTH CIRCUIT
                         __________________________

 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                    No. 04-3166

 ALONZO L. PLAKIO, JR.,

       Defendant - Appellant.
                      ____________________________

                 Appeal from the United States District Court
                          for the District of Kansas
                        (D.C. No. 03-CR-40096-RDR)


Eric F. Melgren, United States Attorney and Nancy Landis Caplinger, Assistant
United States Attorney, Topeka, Kansas, for Plaintiff - Appellee.

David J. Phillips, Federal Public Defender and Melody Evans, Assistant Federal
Public Defender, Topeka, Kansas, for Defendant - Appellant.


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


PER CURIAM.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.

      Alonzo Plakio, Jr. pled guilty to being a felon-in-possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). 1 Pursuant to USSG §2K2.1(a)(4)(A), 2 the

district court calculated Plakio’s base offense level as 20 based on a prior state

felony drug conviction. Plakio objected, claiming his prior drug conviction did

not constitute a felony offense under §2K2.1(a)(4)(A) because the maximum

punishment for the offense for someone with his criminal history category was

eleven months under the state sentencing guidelines. By his reasoning, the base

offense level for the federal offense was 14, not 20. The district court disagreed

and sentenced him to thirty months imprisonment. Plakio appeals pursuant to 18

U.S.C. § 3742(a)(2). We exercise jurisdiction, REVERSE and REMAND for re-

sentencing.


      1
       18 U.S.C. § 922(g)(1) provides:

      (g) It shall be unlawful for any person--

              (1) who has been convicted in any court of, a crime punishable by
              imprisonment for a term exceeding one year;
      ....

      to ship or transport in interstate or foreign commerce, or possess in or affecting
      commerce, any firearm or ammunition; or to receive any firearm or ammunition
      which has been shipped or transported in interstate or foreign commerce.
      2
          Because Plakio was sentenced pursuant to the November 5, 2003 edition of the
United States Sentencing Guidelines Manual all guideline citations refer to the 2003
edition, unless noted otherwise.

                                            -2-
-3-
                                      A NALYSIS

      We review the district court’s interpretation of the sentencing guidelines de

novo. United States v. Plotts, 347 F.3d 873, 875 (10th Cir. 2003). Section

2K2.1(a)(4)(A) dictates a base level of 20 for a violation of 18 U.S.C. §

922(g)(1), if “the defendant committed any part of the instant offense subsequent

to sustaining one felony conviction of . . . a controlled substance offense . . . .”

Application Note 5 of the Commentary to USSG §2K2.1 refers to USSG

§4B1.2(b) for the definition of “controlled substance offense.” Section 4B1.2(b)

defines a controlled substance offense as an “offense under federal or state law,

punishable by imprisonment for a term exceeding one year, that prohibits the

manufacture, import, export, distribution, or dispensing of a controlled substance

. . . or the possession of a controlled substance . . . with intent to manufacture,

import, export, distribute, or dispense.” (Emphasis added). Application Note 5 of

the Commentary to §2K2.1 highlights that a prior felony conviction “means a

prior adult federal or state conviction for an offense punishable by . . .

imprisonment for a term exceeding one year, regardless of whether such offense is

specifically designated as a felony and regardless of the actual sentence

imposed.” (Emphasis added). Thus, what matters is not the classification of the

offense nor the actual sentence imposed, but the maximum possible sentence. See

United States v. Arnold, 113 F.3d 1146, 1148 (10th Cir. 1997) (holding the


                                          -4-
possibility of an upward departure from a presumptive eleven month sentence

rendered the offense a felony for purposes of § 922(g)).

       In order to determine the maximum possible sentence for the prior

conviction in this case, we look to the state sentencing scheme. Under the Kansas

Sentencing Guidelines, a felony sentence is determined by two factors: the crime

of conviction and the offender’s criminal history. State v. Gould, 23 P.3d 801,

811 (Kan. 2001). Under K AN . S TAT . A NN . § 65-4141(c), Plakio’s drug offense

was a severity level 8, nonperson felony, which allows for a range of possible

sentences between seven and twenty-three months depending on the defendant’s

criminal history. K AN . S TAT . A NN . § 21-4704(a). A grid box divides the overall

sentencing range for the offense level into nine subsets, ranging from A to I,

based on the defendant’s criminal history. 3 Under K AN . S TAT . A NN . § 21-4704

(2000 Supp.), “[t]he sentence contained in the grid box at the juncture of the

severity level of the crime of conviction and the offender’s criminal history

category is the presumed sentence.” Gould, 23 P.3d at 811. Plakio’s offense

severity level was 8 and his criminal history score was G, exposing him to a

presumptive sentencing range of nine to eleven months. Plakio received an



       3
         KAN. STAT. ANN. § 21-4704(c) provides that “[t]he sentencing guidelines grid is
a two-dimensional crime severity and criminal history classification tool. The grid's
vertical axis is the crime severity scale which classifies current crimes of conviction. The
grid's horizontal axis is the criminal history scale which classifies criminal histories.”

                                            -5-
eleven month suspended sentence and was placed on probation.

      The Kansas Sentencing Guidelines require a sentencing judge to “impose

the presumptive sentence provided by the sentencing guidelines . . . .” K AN .

S TAT . A NN . § 21-4716(a) (2000 Supp.). Prior to June 26, 2000, however, Kansas

courts could impose an upward departure from the presumed sentence pursuant to

K AN . S TAT . A NN . § 21-4716 (2000 Supp.). “Greatly simplified, K.S.A. 2000

Supp. 21-4716 allows imposition of a term beyond the maximum specified in the

appropriate sentencing grid box based upon a court finding the existence of one or

more aggravating factors.” Gould, 23 P.3d at 812.

      Ordinarily, the mere possibility of an upward departure (beyond one year)

would render Plakio’s conviction punishable by a term exceeding one year

regardless of the actual sentence received. See United States v. Norris, 319 F.3d

1278, 1281-82 (10th Cir. 2003) (holding the possibility of an upward departure

under K AN . S TAT . A NN . § 21-4719(b)(2) qualifies an offense as one punishable by

imprisonment for a term exceeding one year for purposes of § 922(g)(1) even

though defendant’s maximum presumptive sentence was less than one year and no

upward departure was imposed). However, on June 26, 2000, the United States

Supreme Court rendered its decision in Apprendi v. New Jersey, 530 U.S. 466

(2000). The Kansas Supreme Court presciently applied the principles laid down

in Apprendi to limit the ability of Kansas courts to depart upward from the


                                         -6-
presumptive sentence under K AN . S TAT . A NN . § 21-4716 (2000 Supp.). Gould, 23

P.3d at 814; see also Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 2547

n.1 (2004) (O’Connor, J., dissenting) (noting that the Kansas Supreme Court in

Gould was the only state court, prior to Blakely, to apply Apprendi to invalidate

application of its sentencing guidelines). Under Gould (and Blakely), upward

departures cannot be based on judicial fact-finding. Gould, 23 P.3d at 814.

Gould retroactively applied its invalidation of K AN . S TAT . A NN . § 21-4716 (2000

Supp.) to June 26, 2000, the date Apprendi was decided. Id. at 814; see Norris,

319 F.3d at 1282. Thus, from June 26, 2000, until June 6, 2002, the date Kansas

implemented its new sentencing scheme in K AN . S TAT . A NN . § 21-4718 (2003

Cum. Supp.), sentences in Kansas were limited to the maximum presumptive

sentence.

      Plakio’s state sentencing occurred on May 9, 2001. Thus, Plakio argues

that at the time of his sentencing, the maximum sentence he could receive was

eleven months because the state court lacked the authority to depart from the

guidelines and impose a higher sentence. The district court rejected this

conclusion based on the principle of uniformity in sentences and a putative

distinction between the felony analysis under § 922(g)(1) and §2K2.1(a)(4)(A).

Because the maximum sentence was twenty-three months, the district court

deemed Plakio’s prior conviction a felony for purposes of §2K2.1(a)(4)(A). We


                                         -7-
disagree with the district court’s analysis.

      Plakio’s offense never qualified as a felony for purposes of the sentencing

guidelines, regardless of state terminology, because he was never subject to a

sentence greater than a year under Kansas law. We alluded to this conclusion in

Norris where the defendant raised the same argument on appeal as Plakio. 319

F.3d at 1282. In Norris, however, we rejected the defendant’s argument because

his conviction became final before the date Apprendi was decided. Id. at 1283.

However, we suggested in dicta that “[h]ad [the defendant’s] state convictions

become final after June 26, 2000, we would have before us a very different case.”

Id. Plakio now presents that case and we give effect to the logic of Norris.

Because the sentencing court could not have imposed a sentence greater than one

year, Plakio’s state conviction was not a felony for the purposes of the federal

sentencing guidelines. Cf. United States v. Place, 561 F.2d 213, 215 (10th Cir.

1977) (stating the relevant inquiry under § 922(g) is whether the district court

“could have imposed” a longer sentence).

      The district court’s concern that Plakio’s argument “allows a felony

conviction under the guidelines to be determined by the peculiarities of state law”

is unfounded. (R. Doc. 23 at 8.) While it is true that we have declined to look to

state law for defining felonies under the sentencing guidelines, such cases

involved rejecting the state’s “terminology” and “nomenclature,” United States v.


                                          -8-
Dell, 359 F.3d 1347, 1349 (10th Cir. 2004); United States v. Hines, 133 F.3d

1360, 1364 (10th Cir. 1998), preferring instead to look to the substance of the

offense. This is precisely what the sentencing guidelines direct us to do by

requiring us to evaluate the maximum possible sentence under state law and not

whether the offense is labeled a felony or whether the sentence imposed actually

exceeded one year. Additionally, the district court had to first look to the Kansas

provision setting forth the sentencing range of seven to twenty-three months for a

level 8 offense (but not considering the criminal history category which limits the

range to eight to eleven months) in order to qualify Plakio’s offense as a felony.

We cannot look at a portion of state law to determine that the offense constituted

a felony and then decry the use of state law standards as threatening

inconsistency. In any event, although we have previously noted the importance of

uniformity in sentences as a consideration in interpreting the guidelines, see

United States v. Diaz-Bonilla, 65 F.3d 875, 877 (10th Cir. 1995), such

considerations do not trump the constitutional infirmities recognized by Apprendi

and applied to Kansas’ sentencing scheme by Gould.

      The district court also based its decision on the fact that it was “not

persuaded that the definition of felony conviction under §2K2.1 must be treated in

the same way as the felony conviction requirement of § 922(g)(1).” (R. Doc. 23

at 7.) While similar, but not identical, language in the sentencing guidelines and


                                         -9-
the substantive criminal offense is sometimes interpreted and applied differently,

such divergence is predicated on the actual differences in language or definitions.

See United States v. Herrera-Roldan, 414 F.3d 1238, 1243-44 (10th Cir. 2005)

(interpreting “drug trafficking crime” under 18 U.S.C. § 924(c) differently from

“drug trafficking offense” under USSG §2L1.2(b)(1)(B)). We need not decide in

this case whether to interpret the felony conviction requirement in § 922(g)(1)

differently from the felony conviction language in §2K2.1 or the same language in

§4B1.2(b). But see United States v. Harp, 406 F.3d 242, 246 (4th Cir. 2005)

(interpreting § 922(g)(1) and §4B1.2(b) identically).

      We do note, however, that the inquiry under the statute is separate from and

independent of the one under the sentencing guidelines, unless indicated

otherwise. Thus, the statutory definition is controlling for the actual offense, but

the commentary to the guidelines controls for purposes of determining the

sentence. See United States v. Morris, 139 F.3d 582, 584 (8th Cir. 1998). This is

why Plakio’s plea to being a felon-in-possession is not determinative of his

objection that his prior state drug conviction is not a felony for purposes of

sentencing. 4 Plakio’s plea resolves the question of guilt but not of sentence.


      4
         Plakio provides a separate argument that he had a prior state conviction for
domestic battery which precluded him from possessing a firearm under 18 U.S.C. §
922(g)(1), which is why he pled to being a felon-in-possession. We note, however, that
the indictment to which he pled specifically listed the state drug conviction as the
predicate felony.

                                          -10-
While Plakio pled to a predicate felony underlying the actual § 922(g)(1) offense,

§2K2.1 requires the district court to conduct an examination of the state

sentencing scheme to determine if the offense is a felony for sentencing purposes.

      We are not persuaded by the dissent’s reliance on Harp insofar as

suggesting Plakio’s criminal history is irrelevant. Harp follows United States v.

Jones, 195 F.3d 205 (4th Cir. 1999), which concludes that for a crime to be

punishable for a term exceeding one year, there is no need to look at the

maximum sentence the individual defendant could receive. Instead, the

maximum sentence is the maximum aggravated sentence without regard to a

defendant’s criminal history. First, such an approach is contrary to our cases

which suggest that the focus is on the particular defendant. In Arnold, we

focused on the sentence that could have been imposed and in Norris we strongly

implied that had the defendant’s convictions become final after the Kansas court

eliminated the departure power, the state offense would not have been a felony.

Norris, 319 F.3d at 1283; Arnold, 113 F.3d at 1148. Second, such an approach

disregards an integral component of the Kansas sentencing scheme–criminal

history. The fact that criminal history might not be known with certainty at the

time of conviction cannot justify disregarding this component. Taken to its

logical conclusion, such disregard means that the maximum possible sentence is

the same for every defendant, regardless of criminal history, a result clearly not


                                        -11-
contemplated by the Kansas scheme. Third, such an approach ignores that a

crime must have an actor and that Kansas may (and very reasonably does) tie the

maximum punishment to the characteristics of that actor. Fourth, uniformity in

sentencing is not advanced when there is no possible way a defendant could have

committed a felony (as defined) given the punishment scheme of a state. To the

contrary, such a system seems arbitrary, treating truly unlike defendants in a like

manner without regard to the actual offense.

                                    C ONCLUSION

      Plakio’s Kansas conviction for a controlled substance offense is not a

felony for purposes of §2K2.1(a)(4)(A) and the appropriate offense level is 14.

Therefore, the district court’s imposition of a six level enhancement was in error

and is REVERSED and this case is REMANDED for re-sentencing.

      We note that Plakio’s sentence should have been in the range of twelve to

eighteen months. Because Plakio has continually been in custody since November

22, 2003, which is more than the eighteen month maximum, he should be released

pending re-sentencing.

      On June 15, 2005, Plakio filed a Motion for Release Pending Appeal. It is

DENIED as moot.

      The mandate shall issue forthwith.




                                        -12-
-13-
O’BRIEN, Circuit Judge, dissenting.

      The federal sentencing guidelines direct us to consider whether the

defendant was convicted of a crime punishable by more than a year imprisonment,

not whether the defendant was actually punished by more than a year

imprisonment. See USSG §2K2.1, cmt. n. 5; §4B1.2(b). “What matters is not the

actual sentence which the appellant received, but the maximum possible

sentence.” Arnold, 113 F.3d at 1148 (emphasis added). Plakio argues the

maximum possible sentence must be determined in reference to a defendant’s

particular criminal history category. But in defining a “felony” for purposes of

§2K2.1(a)(4)(A), we look to the maximum sentence possible at the time of

conviction, at which the defendant’s criminal history is undetermined. At the

time Plakio pled to the Kansas controlled substance offense, the maximum

possible sentence for someone convicted of a level 8 non-drug offense under

Kansas law was twenty-three months. Because his criminal history category was

not a factor at the time of conviction, the offense to which he pled guilty

constituted a felony under §2K2.1(a)(4)(A).

      This approach best comports with the language of §2K2.1 cmt. n.5 and

§4B1.2(b), which directs us to consider whether the crime and not the particular

defendant is punishable by more than a year imprisonment. In addition, it furthers

the general policy of the guidelines to promote uniform sentences, see Koon v.

United States, 518 U.S. 81, 113 (1996); Diaz-Bonilla, 65 F.3d at 877; United
States v. Brunson, 907 F.2d 117, 121 (10th Cir. 1990), by looking at defendants as

a group rather than as individuals under state sentencing guidelines. This position

is also in accord with the fourth circuit’s recent opinion in Harp. There, under

the plain error standard, it held that “to determine whether a conviction is for a

crime punishable by a prison term exceeding one year [under §4B1.2(b)], . . . we

consider the maximum aggravated sentence that could be imposed for that crime

upon a defendant with the worst possible criminal history.” Harp, 406 F.3d at

246. See also United States v. Jones, 195 F.3d 205, 206-07 (4th Cir. 1999)

(applying the same standard to § 922(g)(1)). I find the fourth circuit’s reasoning

persuasive. When considering state sentencing schemes under §2K2.1(a)(4)(A),

we should ignore the individual defendant’s criminal history category and look

only to the maximum possible sentence allowed for any defendant convicted of

the particular crime. This is a logical extension of our precedents in Norris, 319

F.3d at 1281-82, 1 and Arnold, 113 F.3d at 1148, which direct us to look at the

maximum possible sentence and not the sentence actually imposed.

      Because I would affirm Plakio’s sentence, I respectfully dissent.



      1
         While the majority is correct that the defendant in Norris raised the same
arguments as Plakio, this Court’s suggestion in Norris that “[h]ad Mr. Norris’ state
convictions become final after June 26, 2000, we would have before us a very different
case,” was dicta. 319 F.3d at 1283. We did not have to decide the issue in Norris
because the defendant’s conviction became final prior to the Apprendi decision and we
are therefore not bound by the analysis suggested in Norris.

                                           -2-
