USA v. Tony Gastineau

1The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-1338
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
Western District of Missouri.
Rusty Eugene McCoy, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 5, 2007
Filed: February 5, 2007
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Before RILEY, MAGILL, and MELLOY, Circuit Judges.
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PER CURIAM.
Rusty McCoy pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Finding that McCoy was an armed
career criminal, the district court 1 sentenced him to the statutory minimum of 15 years
in prison. See 18 U.S.C. § 924(e)(1); U.S.S.G. § 4B1.4. On appeal, McCoy
challenges one of the predicate offenses underlying his armed-career-criminal status,
arguing that aiding and abetting felony theft of a vehicle in violation of Kansas law
should not automatically be deemed a “violent felony.” See 18 U.S.C.

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§ 924(e)(2)(B)(ii) (defining “violent felony” as a crime that is punishable by more
than one year in prison and “otherwise involves conduct that presents a serious
potential risk of physical injury to another”). Reviewing de novo, see United States
v. Mincks, 409 F.3d 898, 900 (8th Cir. 2005), cert. denied, 126 S. Ct. 1345 (2006), we
conclude that McCoy’s challenge is unavailing. See United States v. Barbour, 395
F.3d 826, 827-28 (8th Cir.) (under controlling precedent, Kansas vehicle theft is
violent felony within meaning of § 924(e)), cert. denied, 126 S. Ct. 133 (2005).
Accordingly, we affirm.
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