                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3055
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
Kevin N. Thomas,                        *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: January 8, 2007
                                Filed: April 20, 2007
                                 ___________

Before WOLLMAN, BEAM, and MELLOY, Circuit Judges.
                          ___________

WOLLMAN, Circuit Judge.

      Following a bench trial, Kevin Thomas was convicted of being a felon in
possession of a firearm, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and of
one count of possessing a firearm with an obliterated serial number, a violation of 18
U.S.C. §§ 922(k) and 924(a)(1)(B). The district court1 sentenced Thomas to 120
months’ imprisonment for the felon in possession charge and 48 months’
imprisonment for possessing a firearm with an obliterated serial number and ordered



      1
        The Honorable Ortrie D. Smith, United States District Judge for the Western
District of Missouri.
that these sentences run consecutively. Thomas appeals from his convictions and
sentence, raising four issues. We affirm.

                                         I.

       On May 10, 2005, an intoxicated Thomas went to the home of Jenny Quick in
search of Quick’s boyfriend, Kirk Steinbach. Not finding Steinbach at Quick’s
residence, Thomas left. Quick then found Steinbach and told him that Thomas had
been at her home. Shortly thereafter, while Quick, Steinbach, and their children were
driving back to Quick’s home, they saw Thomas’s van outside a store. They pulled
into the parking lot and attempted to park alongside the van, but Thomas moved his
van and positioned it so that the headlights were shining into the passenger side of
their car (the side on which Steinbach was seated). Steinbach stuck his head out of
the car and indicated that he wanted to talk with Thomas. Reaching outside his van,
Thomas cocked and pointed a small firearm at Quick’s car. Quick sped away, driving
to her home.

      Once they arrived at Quick’s home, Steinbach brought the children into the
storm cellar and called the police while Quick waited outside to watch for Thomas,
who arrived at Quick’s residence shortly thereafter. Quick spoke with Thomas and
spotted a shotgun lodged between the two front seats of the van. Steinbach joined
Quick and Thomas outside, and a verbal confrontation ensued between the two men.
At some point during this incident, Thomas remarked that he “had two guns” and that
he “was going to kill [Steinbach].” The encounter continued to escalate, whereupon
Steinbach retrieved his own firearm from the house. Thomas then returned to his van
and drove away.

        Minutes later, Thomas drove by the house a couple of times, eventually
returning to threaten Steinbach further. Thomas then left, but returned once more ten
to fifteen minutes later, alighted from his van, and began yelling and hitting the van

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with his fist. At this point, the police arrived, whereupon Thomas jumped into his van
and drove off, with a police vehicle in pursuit. Thomas stopped the vehicle shortly
thereafter and was arrested. When the arresting officer looked into the van, he spotted
a pistol lying on the front passenger side seat. When he entered the van, he also saw
a shotgun, the serial number of which had been obliterated, lying on the floorboard
between the driver’s and front passenger’s seats.

                                             II.

       Thomas claims first that the evidence was insufficient to prove that he
possessed either the handgun or the shotgun. We review the sufficiency of the
evidence supporting a conviction de novo, viewing the “evidence in the light most
favorable to the government, resolving conflicts in the government’s favor, and
accepting all reasonable inferences that support the verdict.” United States v.
Washington, 318 F.3d 845, 852 (8th Cir. 2003). From the recitation of the facts set
forth above, it is clear that there was sufficient evidence to support the conclusion that
Thomas possessed the handgun.

       The evidence also sufficed to establish that Thomas constructively possessed
the shotgun. In addition to his statement to Steinbach that he possessed two firearms,
Thomas, as the driver and sole occupant of the van in which the shotgun was found,
was clearly in constructive possession of the shotgun, which was within his reach.
See United States v. Tindall, 455 F.3d 885, 887 (8th Cir. 2006) (affirming conviction
for felon in possession of a firearm where there was evidence, inter alia, that the
defendant was the driver and sole occupant of the vehicle in which the firearm was
found and that the firearm was accessible from the driver’s seat), cert. denied, 127 S.
Ct. 1028 (2007); United States v. Heibert, 30 F.3d 1005, 1008-09 (8th Cir. 1994)
(affirming firearm conviction where the firearm had been found in the vehicle that the
defendant had driven to work).



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       Thomas contends next that the district court erred in finding that his 1991
Missouri state conviction for tampering in the first degree, which he acknowledges
was based on his unlawful operation of a motor vehicle without the owner’s consent,
was a crime of violence as defined by United States Sentencing Guidelines (U.S.S.G.)
§ 4B1.2.2 Thomas argues that, unlike theft of a motor vehicle, which we have held
constitutes a crime of violence, United States v. Sun Bear, 307 F.3d 747, 752-53 (8th
Cir. 2002), tampering in the form of unlawful operation of a motor vehicle without the
owner’s consent does not inherently “present[] a serious risk of physical injury to
[an]other.” (Appellant’s Br. at 21). This argument fails in light of our decisions that
unlawful operation of a motor vehicle in violation of Missouri law constitutes a crime
of violence for purposes of § 4B1.2. United States v. Clemmons, 461 F.3d 1057, 1062
(8th Cir. 2006) (citing United States v. Bockes, 447 F.3d 1090, 1092-93 (8th Cir.
2006)); United States v. Johnson, 417 F.3d 990, 999 (8th Cir. 2005), cert. denied, 127
S. Ct. 285 (2006).

       Thomas also argues that the district court erred in finding that he possessed a
firearm in connection with another felony offense. We disagree. “If the defendant
used or possessed any firearm or ammunition in connection with another felony
offense,” the offense-level will be increased by four levels. U.S.S.G. § 2K2.1(b)(5).
The district court concluded that a four-level enhancement was appropriate because
Thomas possessed a firearm in connection with the unlawful use of a firearm, a felony
under Missouri law that can support a § 2K2.1(b)(5) enhancement. See United States
v. Gollhofer, 412 F.3d 953, 955-56 (8th Cir. 2005) (affirming § 2K2.1(b)(5)
enhancement based on unlawful use of a firearm in violation of Missouri law), cert.
denied, 126 S. Ct. 506 (2005). Under Missouri law, a person is guilty of the unlawful


      2
       Section 2K2.1 provides that for offenses involving the unlawful possession of
firearms, the base offense level will be 24 if the offense occurred subsequent to two
felony convictions for crimes of violence. U.S.S.G. § 2K2.1(a)(2)(2005). Under §
4B1.2, crimes of violence include offenses that involve conduct which “presents a
serious potential risk of physical injury to another.” § 4B1.2(a)(2).

                                         -4-
use of a firearm if that person “[e]xhibits, in the presence of one or more persons, any
weapon readily capable of lethal use in an angry or threatening manner.” Mo. Rev.
Stat. § 571.030.1(4). The district court reasonably determined that brandishing a
firearm and cocking it in the presence of Quick, Steinbach, and their children was a
threatening exhibition of a firearm, in violation of the Missouri law. We thus find no
error in the imposition of the § 2K2.1(b)(5) enhancement.

       Finally, Thomas argues that his sentence is unreasonable. We disagree. The
district court calculated an advisory guidelines range of 168 to 210 months and then
considered the factors set forth in 18 U.S.C. § 3553(a), including the seriousness of
the offense, the need to protect the public, and the need to avoid unwarranted
sentencing disparities. The district court then imposed a total sentence of 168 months’
imprisonment, a sentence at the low end of the guidelines range. We cannot say that
this sentence is unreasonable.

        Nor do we discern any error in the decision to order that the second sentence
be consecutive to the first. The “total punishment” imposed by the district court was
168 months’ imprisonment. See United States v. Ervasti, 201 F.3d 1029, 1045-46 (8th
Cir. 2000) (The “‘total punishment’ is the precise sentence determined by the
sentencing judge from within the appropriate guidelines range”). If the district court
had imposed concurrent sentences, the resulting sentence would have been 120
months’ imprisonment, the maximum on the felon in possession charge, 18 U.S.C. §
924(a)(2). Section § 5G1.2 provides that if “the sentence imposed on the count
carrying the highest statutory maximum is less than the total punishment, then the
sentence imposed on one or more of the other counts shall run consecutively, but only
to the extent necessary to produce a combined sentence equal to the total punishment.”
U.S.S.G. § 5G1.2(d) (2005).

      The judgment is affirmed.
                      ______________________________



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