                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-1422
                                     ___________

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David J. Elliott,                         *      [UNPUBLISHED]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

                               Submitted: October 13, 2008
                                  Filed: March 9, 2009
                                   ___________

Before COLLOTON, BOWMAN, and BENTON, Circuit Judges.
                         ___________

PER CURIAM.

        David J. Elliott was charged in a one-count indictment as a felon in possession
of a firearm. He pleaded guilty, and the District Court sentenced him to fifty-seven
months in prison and three years of supervised release. Elliott appeals his sentence.

       For his first issue, Elliott argues that the District Court did not adequately take
into account the 18 U.S.C. § 3553(a) sentencing factors when determining an
appropriate sentence. We disagree. It is clear from our review of the sentencing
record that the court considered all of Elliott's arguments when imposing sentence and
did not, as he contends, focus on his criminal history to the exclusion of other relevant
factors. See United States v. Howe, 538 F.3d 842, 858 (8th Cir. 2008). We conclude
that the District Court did not abuse its discretion. See Gall v. United States, 128 S.
Ct. 586, 597 (2007) (standard of review).

       Elliott also maintains, for the first time on appeal, that the District Court erred
in increasing his base offense level based on his prior conviction under Missouri law
for auto tampering, which at the time of sentencing was deemed a crime of violence
for sentencing purposes. Because Elliott did not raise this issue in the District Court,
we review for plain error. See Howe, 538 F.3d at 857.

       After Elliott was sentenced, this Court, relying on the Supreme Court's decision
in Begay v. United States, 128 S. Ct. 1581 (2008), determined that auto tampering as
broadly defined by the Missouri statute is not a crime of violence for U.S. Sentencing
Guidelines purposes, abrogating Eighth Circuit precedents to the contrary. United
States v. Williams, 537 F.3d 969, 974–75 (8th Cir. 2008). In sentencing Elliott under
the law in effect at the time, the District Court committed plain error that affected
Elliott's substantial rights. See United States v. Davis, 538 F.3d 914, 917 (8th Cir.
2008). Elliott therefore must prevail on his appeal on this point.

      We vacate Elliott's sentence and remand for resentencing.
                      ______________________________




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