                United States Court of Appeals
                       FOR THE EIGHTH CIRCUIT

                            _____________

                            No. 96-3211EM
                            _____________

United States of America,         *
                                  *
          Appellee,               *
                                  * On Appeal from the United
     v.                           * States District Court
                                  * for the Eastern District
                                  * of Missouri.
Opera Moore,                      *
                                  *
          Appellant.              *
                             ___________

                  Submitted: February 10, 1997

                       Filed: March 13, 1997
                            ___________

Before RICHARD S. ARNOLD, Chief Judge, HANSEN, Circuit Judge, and
     BATTEY,* Chief District Judge.
                           ___________


RICHARD S. ARNOLD, Chief Judge.


     Opera Moore appeals his convictions of: (1) being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e); and (2) being in possession of an unregistered firearm, in
violation of 26 U.S.C. §§ 5861(d) and 5871.     He was convicted by a




     *
      The Hon. Richard H. Battey, Chief Judge, United States
District Court for the District of South Dakota, sitting by
designation.
jury       and   sentenced   by   the   District   Court1   to   300   months'
imprisonment on count I and 120 months' imprisonment on count II,




       1
      The Hon. George F. Gunn, Jr., United States District Judge
for the Eastern District of Missouri.
to be served concurrently.      The Court also sentenced Moore to three
years of supervised release on count I and two years of supervised
release on count II, with the sentences to be served concurrently.
We affirm.


                                       I.


     During an undercover narcotics purchase being conducted by
members   of    the   St.   Louis    Police   Department's   Street    Corner
Apprehension Team (SCAT), a man, later identified as Opera Moore,
was seen standing on the porch of the house where alleged drug
trafficking was occurring.          The police converged on the residence
in order to arrest the persons suspected of participating in the
drug trafficking activity.      Detective Mueller was one of the first
officers to arrive at the scene.              Upon arriving at the scene,
Mueller encountered Moore standing on the front porch.                For his
safety, and the safety of the other officers, Mueller conducted a
pat-down search of Moore and recovered a 12-gauge sawed-off shotgun
from Moore's rear waistband.         Detective Siscel was also present on
the porch and witnessed Mueller remove the gun from Moore's pants.
Moore was then placed under arrest for being a felon in possession
of a concealable weapon.


     During the trial, Moore testified on his own behalf and denied
being in possession of a firearm on the day of the drug bust.              He
stated that the police had found the gun and incorrectly attributed
it to him.     Moore's testimony at trial completely contradicted the
testimony of three of the police officer witnesses who testified on
behalf of the government.


     Moore appeals his convictions on three grounds.             First, he
contends that the District Court erred in sentencing him as an
armed career criminal pursuant to 18 U.S.C. § 924(e).           Second, he

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contends that the Court did not make the requisite findings to
support the application of an obstruction of justice enhancement




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under U.S.S.G. § 3C1.1, and claims that the enhancement was clearly
erroneous.2      Finally,   he   argues   that   there   was   insufficient
evidence for the jury to convict him.


                                    II.


     18 U.S.C. § 924(e)(1) states:


     In the case of a person who violates section 922(g) of
     this title and has three previous convictions by any
     court referred to in section 922(g)(1) of this title for
     a violent felony or a serious drug offense, or both,
     committed on occasions different from one another, such
     person shall be fined not more than $25,000 and
     imprisoned not less than fifteen years . . ..

The statute defines “violent felony" as


     “any crime punishable by imprisonment               for   a   term
     exceeding one year . . . that--

         (i) has as an element the use, attempted use, or
             threatened use of physical force against the
             person of another; or

     (ii) burglary, arson, or extortion, involves use of
          explosives, or otherwise involves conduct that
          presents a serious potential risk of physical
          injury to another;


18 U.S.C. § 924(e)(2)(B)(i), (ii).




     2
      The Court will not address this question because it is
moot. Because the Court finds that the District Court did not
err in sentencing Mr. Moore as an armed career criminal, a
reversal of the sentencing enhancement for obstruction of justice
would not affect Moore's base offense level of 34 and, therefore,
would not affect his sentence.

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     At the time of trial, Moore had 17 prior convictions.         At
least six of these prior convictions qualify as violent felonies
under § 924(e).   Moore has: (1) a 1966 Tennessee conviction for




                                -6-
burglary;     (2)     two   1975   Tennessee       convictions        for        attempted
burglary; (3) a 1977 federal conviction for breaking and entering
a    United   States    Post    Office;      (4)   a   1978    Illinois          burglary
conviction; and (5) a 1980 federal conviction for breaking and
entering a United States Post Office.


       Each of Moore's burglary and breaking and entering convictions
constitute     “generic"       burglary      for   purposes      of     a    §     924(e)
enhancement because the crimes have the “basic elements of unlawful
or   unprivileged      entry    into,   or    remaining       in,   a   building       or
structure, with intent to commit a crime."                      Taylor v. United
States, 495 U.S. 575, 599 (1990).              Moore's two 1975 state-court
convictions     for    attempted    burglary       also   qualify           as    violent
felonies.      If an attempted burglary conviction is based on a
statute which requires a substantial step towards the completion of
the crime, then it qualifies as a predicate violent felony under
the “otherwise clause" of § 924(e).            United States v. Solomon, 998
F.2d 587, 589-90 (8th Cir.), cert. denied, 510 U.S. 1026 (1993).
One of the elements of the Tennessee attempted-burglary statute
under which Moore was convicted required that a defendant commit an
overt act towards the commission of the crime.                  See United States
v. Bureau, 52 F.3d 584, 592 (6th Cir. 1995); Tenn. Code Ann. §§ 39-
904, 39-603 (Cum. Supp. 1974)).           “[A] conviction under Tennessee's
attempted burglary statute in 1975 involved conduct presenting a
serious potential risk of physical injury to another."                       Bureau, 52
F.3d at 592.    Therefore Moore's 1975 convictions qualify as violent
offenses for purposes of 18 U.S.C. § 924(e).
       Consequently, Mr. Moore has at least three prior violent
felony convictions -- two convictions for breaking and entering a




                                        -7-
U.S. Post Office and a 1975 Tennessee conviction for attempted
burglary.3   Moore argues that none of his state burglary or




     3
      Since § 924(e) requires only three predicate felony
offenses, the Court need not discuss the arguments regarding the
other previous felonies.

                                -8-
attempted-burglary convictions counts for purposes of § 924(e),
because his civil rights have been restored for those convictions.
Section 921(a)(20) provides that “[a]ny conviction which has been
expunged, or set aside or for which a person has been pardoned or
has had civil rights restored shall not be considered a conviction
for purposes of this chapter."        18 U.S.C. § 921(a)(20).


     Moore argues that at the time of his two 1975 Tennessee
convictions for attempted burglary, Tennessee did not have a law
limiting    a   convicted   felon's    right   to   possess   a   firearm.
Therefore, Moore argues that at the time of these convictions a
felon, upon completion of a sentence, had the same right as an
individual not convicted of a felony to possess a firearm.          Moore
relies on United States v. Davis, 936 F.2d 352 (8th Cir. 1991),
cert. denied, 503 U.S. 908 (1992), for this proposition.           In the
instant case, unlike in Davis, the state of Tennessee never took
Moore's right to possess firearms away in the first place.           What
was never taken away cannot be “restored.”4          The District Court
properly sentenced Moore as an armed career criminal pursuant to
§ 924(e).




     4
      Moreover, Moore does not show that Tennessee has restored
any of his other civil rights, such as the right to vote or seek
public office. Tennessee law requires felons in Moore's position
to petition to have their civil rights restored. Tenn. Code Ann.
§§ 40-29-101 to -104. There is no evidence in the record
suggesting that Moore has availed himself of this procedure. As
the government argues, the mere absence of a statute prohibiting
firearm possession by ex-felons does not constitute a restoration
of civil rights for purposes of 921(a)(20). Moore's case is
unlike Davis, which involved a Minnesota statute that
automatically restored the civil rights of convicted felons upon
discharge of their convictions. Davis, 936 F.2d at 356.

                                  -9-
                                      III.


     Finally,   Moore       argues   that    because   of    the   contradictory
testimony of government witnesses the evidence was insufficient to
establish his guilt beyond a reasonable doubt.               Moore's sole basis
for challenging the sufficiency of the evidence is his assertion
that the testimony of the government's witnesses was not credible.
On appeal, “we do not pass upon the credibility of witnesses or the
weight to be given their testimony."          United States v. Marshall, 92
F.3d 758, 760 (8th Cir. 1996)(citation and internal quotation marks
omitted).    In reviewing the sufficiency of the evidence, we view
the evidence    in    the    light   most    favorable      to   the   government,
resolving evidentiary conflicts in favor of the government, and
accepting all reasonable inferences drawn from the evidence that
supports the jury's verdict.         The jury's verdict must be upheld if
there is an interpretation of the evidence that would allow a
reasonable jury to find the defendant guilty beyond a reasonable
doubt.   United States v. White, 81 F.3d 80, 82 (8th Cir. 1996).


     The District Court did not err in denying Moore's motion for
judgment of acquittal.       A reasonable jury could find, as this jury
did, that the defendant was guilty on both counts.                 We therefore


     Affirm.


     A true copy.


            Attest:


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




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