### The Honorable Howard F. Sachs, United States District Judge 1 

### for the Western District of Missouri.



# United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________ No. 95-2490

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Durhan J. Clay, * * [UNPUBLISHED] Appellant. *

___________ Submitted: February 28, 1997 Filed: March 17, 1997

___________ Before HANSEN, MORRIS SHEPPARD ARNOLD, and MURPHY, Circuit Judges.

___________ PER CURIAM. A jury found Durhan J. Clay guilty o f being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) a nd 924(e). At sentencing, the district court found that Clay was subject to an enhanced sentenc e 1 under section 924(e) (mandatory minimum sentence required where sectio n 922(g) of fender "has three previous convictions . . . for a violen t felony"). Clay appeals his conviction and sentence, and we affirm. Clay firs t challenges the sufficiency of the evidence as to whether he knowingly possesse d a firearm. We reject Clay's challenge, because we believe a rational trier of fact could have found beyond a reasonable doub t that Clay constructively possessed

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the firearm in questi on. The government presented evidence that Clay was seen driving the car in which the firearm was found; that Clay exited the car and walked away b oth times police drew near; and that the firearm was found on the driver's seat, upon which Clay had been sitting. See United States v. Walcott , 61 F.3d 635, 638 (8th Cir. 1995) (standard of review), cert. den ied , 116 S. Ct. 953 (1996); cf. United States v. Eldridge , 98 4 F.2d 943, 946 (8th Cir. 1993) (affirming § 922(g) conviction based o n constructive possession; finding constructive possession where defendan t had con trol of keys to trunk of car in which firearms were located, an d sufficient evidence was introduced to allow reasonable juror to conclude defendant knew of firearms' location).
Next, Clay argues that the district court improperly enhanced hi s sentence, because Clay's prior Missouri conviction for attempted first

degree bu rglary is not a violent felony for purposes of sectio n 924(e)(2)(B)(ii) (stating, in relevant part, that "violent felony" means burgla ry, or crime otherwise involving "conduct that presents a seriou s potential risk of physical injury to another"). As Clay did not raise thi s issue below, we review for plain error. See Uni ted States v. Fritsch , 891 F.2d 667, 668 (8th Ci r. 1991). In Missouri, burglary in the first degree consists of unlawfully entering a building for the purpose of committing a crime inside while a nonparticipant in the crime is present. See State v. Thomas , 715 S.W.2d 9, 9 (Mo. App. 1986). To be guilty of attempt i n Missouri, the offender must perform an act that is a "substantial step " tow ards committing the offense, and must do so with the purpose o f committing the offens e. See Mo. Rev. Stat. § 564.011 (1994). We believe Missouri's law on att empted burglary is similar to Minnesota's attemptedburg lary law, which we held punishes only conduct carrying a seriou s potential risk of physical injury to another. See United States v
. Solomon , 998 F.2d 587 , 589-90 (8th Cir.) (attempted burglary in Minnesota constituted "violent felony" for purposes of 924(e)(2)(B)(ii); essential elements of attempted burglary in

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Mi nnesota are intent and substantial step towards completion), cert . denied , 5 10 U.S. 1026 (1993); see also United States v. DeMint , 74 F.3 d 876, 878 (8th Cir.) (per curiam) (Florida's attempted-burglary la w cons tituted "violent felony" under § 924(e)(2)(B)(ii) where attempted

burglary elements included specific intent and o vert act going beyond mere preparation), cert. denied , 117 S. Ct. 364 (1996). We find no plain error
. Accordingly, we affirm.
A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.