Summary Calendar UNITED STATES OF AMERICA v. Kenyoun Gilyard, also known as Pop

* 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should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-30324
Summary Calendar
UNITED STATES OF AMERICA
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-50110-1
Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
Kenyoun Gilyard appeals the sentence imposed following his guilty-plea
conviction for conspiracy to possess with intent to distribute 50 grams or more
of cocaine base. He argues that the district court clearly erred by applying a
two-level enhancement for his possessing a firearm during a drug crime under
U.S.S.G. § 2D1.1(b)(1). We review the district court’s firearm adjustment under
United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2007
Charles R. Fulbruge III
Clerk

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No. 07-30324
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§ 2D1.1(b)(1) for clear error. United States v. Eastland, 989 F.2d 760, 770 (5th
Cir. 1993).
While there was no evidence that Gilyard carried a firearm when he sold
drugs, the evidence showed that Gilyard carried firearms and used them in
confrontations and gun battles relating to the drug conspiracy. Accordingly, the
district court’s application of the enhancement was not clearly erroneous. See
United States v. Wilson, 116 F.3d 1066, 1094 (5th Cir. 1997), vacated in part on
other grounds, 161 F.3d 256, 256 n.1 (5th Cir. 1998) (en banc).
Gilyard argues that the district court clearly erred by applying the four-
level enhancement for his being an organizer or leader of a criminal activity
involving four or more participants pursuant to U.S.S.G. § 3B1.1(a). He assumes
without admitting that the Government proved that he was a leader or organizer
of a criminal activity involving himself and his three co-defendants. He
maintains that the Government did not prove the existence of a fifth participant
in the criminal activity by a preponderance of the evidence.
The evidence before the district court showed that Ronald King and Shelby
King, as well as Gilyard and his three co-defendants, were participants in the
criminal activity. While there was no evidence that Gilyard organized or led
Ronald or Shelby King, this is immaterial as the enhancement was proper if
there were five or more participants in the criminal activity, and Gilyard
organized or led at least one other participant. See United States v. Okoli, 20
F.3d 615, 616 (5th Cir. 1994). The district court’s application of the
enhancement was not clearly erroneous. See id.
Gilyard argues that the district court violated his Sixth Amendment rights
by enhancing his advisory guidelines sentence range and sentence based upon
facts not admitted by him or found by a jury. As he concedes, this argument is
foreclosed. See United States v. Mares, 402 F.3d 511, 519 (5th Cir.), cert. denied,
126 S. Ct. 43 (2005).
AFFIRMED.

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