                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT                      May 10, 2007

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                 No. 05-41717
                               Summary Calendar


                          UNITED STATES OF AMERICA,

                                Plaintiff-Appellee,

                                     versus

                                 JAIME CASTRO,

                                Defendant-Appellant.

                             --------------------
                 Appeal from the United States District Court
                      for the Southern District of Texas
                            USDC No. 5:04-CR-2524
                             --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

       Jaime Castro appeals his convictions and sentences for the

simultaneous possession of a firearm and of ammunition.             He argues

that       the   convictions   are   multiplicitous    and   violate    double

jeopardy.        The Government asserts that Castro waived this argument

by failing to file a pretrial motion challenging the indictment.

The Government also argues that Castro’s argument is without merit

because his sentences are concurrent and because it can be inferred

that Castro obtained the firearm and ammunition on different

occasions.

       *
       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this opinion should not be published and is not precedent except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.
                                  No. 05-41717
                                       -2-

     Generally, a defendant must file a pretrial motion challenging

duplicitous charges to preserve the issue for appeal.               United

States v. Dixon, 273 F.3d 636, 642 (5th Cir. 2001); FED. R. CRIM. P.

12(b)(2).       However,     a    complaint   challenging   multiplicitous

sentences may be raised for the first time on appeal.           Dixon, 273

F.3d at 642.     Simultaneous convictions and sentences for the same

criminal act involving possession of a firearm and possession of

ammunition violate double jeopardy.           United States v. Berry, 977

F.2d 915, 919 (5th Cir. 1992).          The fact that the district court

ordered Castro’s sentences to run concurrently does not change this

result.    See id. at 920; United States v. Kimbrough, 69 F.3d 723,

729 (5th Cir. 1995).        Further, there is nothing in the record to

prove that Castro obtained the firearm and ammunition on different

occasions.

     Castro also argues that the district court erred in failing to

impose his federal sentence to run concurrently with his not yet

imposed state sentence and in failing to give him credit for time

served in state custody.            It is unnecessary to address these

issues.

     Accordingly, we VACATE Castro’s sentences and REMAND the

matter    for   dismissal    of   the   duplicitous   conviction   and   for

resentencing.
