     Case: 14-31064      Document: 00513037932         Page: 1    Date Filed: 05/11/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 14-31064
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            May 11, 2015
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

KENYOUN GILYARD, also known as Pop,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 5:06-CR-50110


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Kenyoun Gilyard, federal prisoner # 13218-035, appeals the district
court’s denial of his 18 U.S.C. § 3582(c)(2) motion for a sentence reduction
based upon retroactive Amendment 750 to the Sentencing Guidelines. Gilyard
pleaded guilty to conspiracy to possess with intent to distribute 50 grams or
more of cocaine base. He was held responsible for 221 grams of cocaine base
and 4.1 kilograms of powder cocaine, but the powder cocaine quantity did not


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-31064      Document: 00513037932     Page: 2   Date Filed: 05/11/2015


                                   No. 14-31064

affect his guidelines sentence range at his original sentencing.          He was
originally sentenced to 312 months of imprisonment, and his sentence was
reduced to 247 months of imprisonment in a § 3582(c)(2) proceeding based upon
Amendment 706 to the Sentencing Guidelines.
         Gilyard argues that the district court abused its discretion by denying
him a sentence reduction pursuant to Amendment 750. He maintains that the
district court abused its discretion by failing to determine whether his
guidelines sentence range was reduced by Amendment 750. He asserts that
the probation officer’s determination that his guidelines sentence range was
not reduced by Amendment 750 was erroneous because the probation officer
either made an error in computation or improperly relied upon drug quantities
that were not utilized to determine his base offense level at his original
sentencing. Gilyard contends that the probation officer should not have relied
upon drug quantities not utilized to determine his base offense level at his
original sentencing because § 3582(c)(2) proceedings are not full resentencings
and only drug quantities relied upon at the initial sentencing can be
considered. He states that at his original sentencing he did not object to any
drug quantities other than the 221 grams of cocaine base relied upon to
calculate his base offense level because the PSR deemed the other drug
quantities insignificant.     He argues that reliance upon the other drug
quantities in the § 3582(c)(2) proceeding violated his due process rights
because he never had the opportunity to contest those drug quantities.
         Contrary to Gilyard’s assertion, both the quantities of cocaine base and
powder cocaine were considered at his original sentencing,” the powder cocaine
was simply deemed insignificant because it did not change the base offense
level.    See U.S.S.G. § 2D1.1(c)(3) (2006); § 2D1.1, comment. (n.10) (2006).
Likewise, when Gilyard’s sentence was reduced due to Amendment 706, the



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                                 No. 14-31064

quantity of powder cocaine did not affect his guidelines sentence range. See
§ 2D1.1(c)(4) (2007); § 2D1.1, comment. (n.10(D), (E)) (2007). Amendment 750,
however, did not lower Gilyard’s offense level or guidelines sentence range
because of the combined quantities of cocaine base and powder cocaine. See
§ 2D1.1(c)(4) (2011); § 2D1.1, comment. (n.10(D)) (2011).
      As Amendment 750 did not lower Gilyard’s guidelines sentence range
based upon the drug quantities found at his original sentencing, Gilyard was
not eligible for a sentence reduction under § 3582(c)(2), and Gilyard cannot
challenge the drug quantities found at sentencing in a § 3582(c)(2) proceeding.
See United States v. Hernandez, 645 F.3d 709, 712 (5th Cir. 2011); U.S.S.G.
§ 1B1.10, comment. (n.1(A)). Gilyard’s assertion that the consideration of the
powder cocaine quantities violated his due process rights because he could not
challenge them at his original sentencing is without merit as Gilyard could and
did object to the majority of the powder cocaine quantity set forth in the PSR;
the district court, however, overruled the objection. As Gilyard was ineligible
for a sentence reduction, any error in the district court’s failure to determine
whether Gilyard’s guidelines sentence range had been decreased was
harmless. See United States v. Gonzalez-Balderas, 105 F.3d 981, 984 (5th Cir.
1997).
      AFFIRMED.




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