* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 17, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10799

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

DANIEL L MAJOR; SHANGO H ALVES

Defendants-Appellants

Appeals from the United States District Court

for the Northern District of Texas

USDC No. 4:04-CR-70-4

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Daniel L. Major and Shango H. Alves appealthe sentences imposed by the

district court on remand. Major argues that the district court erred in increasing

his offense level by six points under U.S.S.G. § 2K1.1(a)(5) because the theft

offense involved a firearm described in 18 U.S.C. § 921(a)(30), which had been

repealed at the time of his sentencing. Because Major could have raised this

issue in his first appeal but he failed to do so, he has waived it. See United
No. 06-10799

2

States v. Castillo, 179 F.3d 321, 326 (5th Cir. 1999), rev'd on other grounds,

530 U.S. 120 (2000).

Major and Alves argue that the district court erred in enhancing their

sentences based on facts that were not alleged in the indictment or found by the

jury. Major also argues that the district court erred in enhancing his sentence

based on the district court’s finding that the offense involved 20 stolen firearms,

because he was acquitted of theft of firearms from a federally licensed firearms

dealer. The district court did not err in finding all the facts relevant to its

determination of the guidelines sentencing range for Major and Alves. See

United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). The district court did

not err in relying on conduct from the theft count upon which the jury acquitted

Major at trial. See United States v. Valdez, 453 F.3d 252, 264 (5th Cir.), cert.

denied, 127 S. Ct. 456 (2006).

Major argues thatthe district court’s enhancement of his sentence because

the offense involved stolen firearms constitutes double counting because stolen

firearms were taken into account in the base offense level for theft of firearms

from a federally licensed firearms dealer. Because Major was not convicted of

an offense involving a stolen firearm listed in the application note to U.S.S.G.

§ 2K2.1 and his base offense level was determined under § 2K2.1(a)(5), the twolevel increase does not constitute impermissible double counting. See United

States v. Luna, 165 F.3d 316, 323 (5th Cir. 1999).

Major argues that district court plainly erred in refusing to impose a

sentence outside of the advisory guideline range without good reason. He also

argues that United States v. Duhon, 440 F.3d 711, 715 (5th Cir. 2006), petition

for cert. filed (May 18, 2006) (No. 05-11144), is contrary to Booker. Major has not

shown that Duhon is contrary to Booker and has not shown that the district

court plainly erred in refusing to impose a sentence outside of the guidelines

range without good reason.

AFFIRMED.