          IN THE UNITED STATES COURT OF APPEALS
                                          United States Court of Appeals
                   FOR THE FIFTH CIRCUIT           Fifth Circuit
                                                                      F I L E D
                                No. 06-10799                         September 17, 2007
                              Summary Calendar
                                                                   Charles R. Fulbruge III
                                                                           Clerk

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 appeal the 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repealed at the time of his sentencing.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



      *
      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should not be published and is not precedent except under the limited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. 06-10799

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 that the 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 two-
level 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.

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