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 * [UNPUBLISHED]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

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

___________

PER CURIAM.

A jury found Durhan J. Clay guilty of being a felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e). At sentencing,

the district court found that Clay was subject to an enhanced sentence

1

under section 924(e) (mandatory minimum sentence required where section

922(g) offender "has three previous convictions . . . for a violent

felony"). Clay appeals his conviction and sentence, and we affirm.

Clay first challenges the sufficiency of the evidence as to whether

he knowingly possessed a firearm. We reject Clay's challenge, because we

believe a rational trier of fact could have found beyond a reasonable doubt

that Clay constructively possessed
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the firearm in question. 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 both 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. denied, 116 S. Ct. 953 (1996); cf. United States v. Eldridge, 984

F.2d 943, 946 (8th Cir. 1993) (affirming § 922(g) conviction based on

constructive possession; finding constructive possession where defendant

had control of keys to trunk of car in which firearms were located, and

sufficient evidence was introduced to allow reasonable juror to conclude

defendant knew of firearms' location).

Next, Clay argues that the district court improperly enhanced his

sentence, because Clay's prior Missouri conviction for attempted firstdegree burglary is not a violent felony for purposes of section

924(e)(2)(B)(ii) (stating, in relevant part, that "violent felony" means

burglary, or crime otherwise involving "conduct that presents a serious

potential risk of physical injury to another"). As Clay did not raise this

issue below, we review for plain error. See United States v. Fritsch, 891

F.2d 667, 668 (8th Cir. 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 in

Missouri, the offender must perform an act that is a "substantial step"

towards committing the offense, and must do so with the purpose of

committing the offense. See Mo. Rev. Stat. § 564.011 (1994). We believe

Missouri's law on attempted burglary is similar to Minnesota's attemptedburglary law, which we held punishes only conduct carrying a serious

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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Minnesota are intent and substantial step towards completion), cert.

denied, 510 U.S. 1026 (1993); see also United States v. DeMint, 74 F.3d

876, 878 (8th Cir.) (per curiam) (Florida's attempted-burglary law

constituted "violent felony" under § 924(e)(2)(B)(ii) where attemptedburglary elements included specific intent and overt 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.