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.

-------------------- 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 --------------------

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

(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

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(5th Cir. 1997);

(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

(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

(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,

n.24; 5TH CIR. R. 42.2. We caution Taylor

that further frivolous filings will subject him to sanctions. No. 04-30378 -3-

COA DENIED AS UNNECESSARY; IFP DENIED; APPEAL DISMISSED;

SANCTION WARNING ISSUED.