United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 21, 2004
Charles R. Fulbruge III
Clerk
No. 04-30378
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRYL W. TAYLOR,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 99-CV-261-B-M2
USDC No. 98-CR-24-ALL
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Before JOLLY, JONES, and WIENER, Circuit Judges.
PER CURIAM:*
Darryl W. Taylor, federal prisoner # 02975-095, seeks leave
to proceed in forma pauperis (“IFP”) to appeal the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion to reduce his
sentence based on retroactive Amendment 591 to the sentencing
guidelines. Taylor also moves for a certificate of appealability
(“COA”) arising out of the district court’s denial of his FED. R.
CRIM. P. 59(e) motion as a successive 28 U.S.C. § 2255 motion.
Because Taylor devotes his argument to the denial of his
*
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this opinion should not be published and is not precedent except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. 04-30378
-2-
§ 3582(c)(2) motion and does not challenge the denial of his
postjudgment motion, COA is DENIED as unnecessary.
By filing the IFP motion, Taylor is challenging the district
court’s certification decision that his appeal was not taken in
good faith because it is frivolous. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(a)(3);
FED. R. APP. P. 24(a)(5). However, Taylor has not demonstrated
any nonfrivolous ground for appeal.
In 1998, Taylor pleaded guilty to distributing cocaine base,
in violation of 21 U.S.C. § 841(a)(1), and he was sentenced based
on the PSR’s determination that the offense involved 336.8 grams
of cocaine base. Taylor argues that Amendment 591 dictates that
he must be resentenced because no quantity of drugs was specified
in the indictment. He is mistaken. Amendment 591 applies to the
determination of the appropriate Chapter Two offense guideline
section, and Taylor was properly sentenced under U.S.S.G.
§ 2D1.1, the appropriate offense guideline section for
convictions under 21 U.S.C. § 841(a)(1). Amendment 591 is
irrelevant to the determination of base (or specific) offense
levels within the applicable offense guideline section or to any
consideration of relevant conduct. Taylor’s motion to proceed
IFP is DENIED, and the appeal is DISMISSED as frivolous. See
Baugh, 117 F.3d at 202 n.24; 5TH CIR. R. 42.2. We caution Taylor
that further frivolous filings will subject him to sanctions.
No. 04-30378
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COA DENIED AS UNNECESSARY; IFP DENIED; APPEAL DISMISSED;
SANCTION WARNING ISSUED.