                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 05 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-30087

               Plaintiff - Appellee,             D.C. No. 6:09-cr-00022-CCL

  v.
                                                 MEMORANDUM *
ZOLLIE LOUIS BYRD,

               Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Charles C. Lovell, District Judge, Presiding

                           Submitted December 14, 2010 **

Before:        GOODWIN, WALLACE, and CLIFTON, Circuit Judges.

       Zollie Louis Byrd appeals from the 68-month sentence imposed following

his guilty plea conviction for possession of an unregistered machine gun, in

violation of 26 U.S.C. §§ 5841, 5861(d) and 5871. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Byrd contends that the district court erred in using his prior firearms

conviction as a basis for imposing a 3-level sentencing enhancement under 18

U.S.C. § 3147, and in calculating his criminal history score. This contention is

foreclosed by United States v. Tavakkoly, 238 F.3d 1062, 1068 (9th Cir. 2001).

See also Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (“We previously

have rejected [defendant’s] claim that the use of a prior conviction as a basis for a

sentencing enhancement and for calculating a defendant’s criminal history score

constitutes impermissible double counting.”).

      Byrd also contends that his sentence is substantively unreasonable because it

is longer than necessary in light of his background and the circumstances

surrounding his offense. The record reflects that Byrd’s guideline sentence is

substantively reasonable in light of the totality of the circumstances. See Gall v.

United States, 552 U.S. 38, 51-52 (2007).

      AFFIRMED.




                                           2                                    10-30087
