                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
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                                    No. 04-3971
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United States of America,                  *
                                           *
             Appellee,                     *
                                           *       Appeal from the United States
      v.                                   *       District Court for the Western
                                           *       District of Missouri.
Gary W. Farris,                            *
                                           *             [PUBLISHED]
             Appellant.                    *

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                            Submitted: October 10, 2005
                                Filed: June 5, 2006
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Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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PER CURIAM.

        Gary Farris appeals the sentence pronounced by the district court1 after he pled
guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
and possessing a firearm from which the serial number had been removed or
obliterated in violation of 18 U.S.C. § 922(k). We affirm.



      1
        The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
       Sentencing in the period between Blakely v. Washington, 542 U.S. 296 (2004),
and United States v. Booker, 543 U.S. 220 (2005), the district court based Farris’s
guidelines sentencing range solely on facts admitted by the defendant. With this
limitation, the district court applied the guidelines in a mandatory fashion. The district
court found that Farris’s 2001 Missouri conviction for unlawful use of a weapon and
his 2001 Missouri conviction for tampering with a motor vehicle in the first degree
were both crimes of violence as defined by U.S.S.G. § 4B1.2, increasing Farris’s base
offense level from 14 to 24 under U.S.S.G. § 2K2.1. The district court then sentenced
Farris to 115 months’ imprisonment, the high end of the resulting guidelines range.
Farris appeals his sentence, arguing that (1) tampering with a motor vehicle is not a
crime of violence, and (2) his sentence was pronounced under mandatory guidelines
in violation of Booker.

       We review de novo whether a prior conviction constitutes a crime of violence
under the sentencing guidelines. United States v. Kendrick, 423 F.3d 803, 809 (8th
Cir. 2005). The Missouri offense of tampering with a motor vehicle in the first degree
criminalizes both tampering by operation and tampering by possession. See Mo. Rev.
Stat. § 569.080.1(2). Tampering by operation is a crime of violence for purposes of
§ 4B1.2. United States v. Bockes, ___ F.3d ___, No. 04-3936, slip op. at 4 (8th Cir.
May 18, 2006); see United States v. Johnson, 417 F.3d 990, 997-99 (8th Cir. 2005),
reh’g denied, No. 04-1839 (8th Cir. May 3, 2006).

       Because the Missouri statute is overinclusive, we apply the categorical approach
developed in Shepard v. United States, 544 U.S. 13 (2005), and Taylor v. United
States, 495 U.S. 575 (1990), to determine if the conduct underlying the conviction
falls within the statutory category of tampering by operation. Bockes, slip op. at 4-5.
The Presentence Investigation Report (“PSR”) cited the charging document
underlying the 2001 tampering conviction to show that Farris “knowingly and without
consent of the owner operated a motor vehicle,” placing Farris’s conduct within the
definition of tampering by operation. In addition, because “the PSR described

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conduct derived from documents Taylor or Shepard permit” and Farris did not object
to those underlying facts, the Government was not obliged “to introduce at sentencing
the documentary evidence Taylor or Shepard requires.” United States v. McCall, 439
F.3d 967, 974 (8th Cir. 2006) (en banc). Therefore, the district court did not err in
finding that Farris’s conviction for tampering under the Missouri statute is a crime of
violence for § 4B1.2 purposes.

       We review for harmless error the sentencing court’s use of mandatory
guidelines after Farris’s timely Blakely objection. See United States v. Pirani, 406
F.3d 543, 549 (8th Cir. 2005) (en banc). Because the district court determined Farris’s
sentencing guidelines range with no enhancements based on judge-found facts, the
error in using mandatory guidelines is not of constitutional magnitude, and the
Government bears the burden of demonstrating that no grave doubt exists as to
whether the defendant would have received a more favorable sentence under an
advisory guidelines system. Bockes, slip op. at 5. This burden is met where the
district court exercised its discretion to sentence the defendant in the middle of the
guidelines range. United States v. Brooks, 417 F.3d 982, 985 (8th Cir. 2005) (finding
no grave doubt because “[t]he district court was aware that it could have imposed a
lesser sentence on [the defendant], and it chose not to do so after considering the need
for adequate punishment, deterrence, and protection of the public”). After considering
Farris’s arguments for a sentence at the low end of the guidelines range, the district
court sentenced Farris at the high end of the range. Therefore, “we have no ‘grave
doubt’ in this case because the district court ‘left unused some of its discretion’ when
it sentenced [the defendant] . . . above the minimum Guideline range.” United States
v. Green, 428 F.3d 1131, 1135 (8th Cir. 2005) (quoting United States v.
Perez-Ramirez, 415 F.3d 876, 878 (8th Cir. 2005)). Thus, the district court’s use of
mandatory guidelines was harmless error.

      Accordingly, we affirm the sentence imposed by the district court.
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