to the third element of the offense, that he was a prohibited person under 18 U.S.C. § 922(g). 6 . Even a Class 5 felony is punishable by a term exceeding one year. Colorado Rev. Stat. § 18-1.3-401. 7 . Banks also argues that the assessment of one point for committing the instant offense within two years of release from custody for another offense was in error, because he served time for the other charge after the instant conduct and not before. USSG § 4A1.1 (e), comment (n.5) (noting that this section applies only if the conduct occurs after the release from custody). The government admits this error. As a result, Banks has 13 criminal history points, not 14. Nevertheless, he is still in criminal history category VI. See United States v. Evans, 285 F.3d 664, 674 (8th Cir.2002) (<HOLDING>). LOKEN, Chief Judge, concurring. I join the
holding exclusion was harmless error holding that opinions accompanying the denial of certiorari cannot have the same effect as decisions on the merits recognizing as harmless miscalculations that have no effect on the ultimate category holding that a violation of the hearsay rule was harmless holding to the same effect