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 *783matters 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, 116 S.Ct. 2035, 135 L.Ed.2d 392 (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 1281-82,5 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 PlaHo’s sentence, I respectfully dissent.
. While the majority is correct that the defendant in Norris raised the same arguments as Plakio, this Court’s suggestion in Norris that “Dh]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.