US v. Bennie Kyle
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:15-cr-00107-IMK-MJA-1. Copies to all parties and the district court/agency. Mailed to: Bennie Kyle, #10443-087 FCI Allenwood Low, P.O. Box 1000 White Deer, PA 17887 . [16-4445]
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UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg.
Irene M. Keeley,
District Judge. (1:15-cr-00107-IMK-MJA-1)
January 20, 2017
February 3, 2017
Before GREGORY, Chief Judge, MOTZ, Circuit Judge, and DAVIS,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Katy J. Cimino, Assistant Federal Public Defender, Clarksburg,
Specialist, Martinsburg, West Virginia, for Appellant.
Elizabeth Wesley, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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agreement, to distributing cocaine base within 1000 feet of a
(b)(1)(C), 860 (2012).
The district court sentenced Kyle to 27
In accordance with Anders v. California,
386 U.S. 738 (1967), Kyle’s counsel has filed a brief certifying
whether Kyle’s sentence is substantively reasonable.
filed a pro se supplemental brief contending that the district
court erred in finding that he breached his plea agreement and
that counsel provided ineffective assistance.
We affirm the
district court’s judgment.
breached the plea agreement under a bifurcated standard.
district court’s factual findings are reviewed for clear error,
contract interpretation” are reviewed de novo.
Bowe, 257 F.3d 336, 342 (4th Cir. 2001).
United States v.
Here, Kyle challenges
credible, and we give a district court’s credibility findings
“the highest degree of appellate deference.”
United States v.
White, 836 F.3d 437, 442 (4th Cir. 2016) (internal quotation
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Thus, we conclude that the district court did
not err in finding that Kyle breached his plea agreement.
38, 41 (2007).
Gall v. United States, 552 U.S.
Under this standard, a sentence is reviewed for
both procedural and substantive reasonableness.
Id. at 51.
determining procedural reasonableness, we consider whether the
Sentencing Guidelines range, gave the parties an opportunity to
Id. at 49-51.
If a sentence is free of
substantive reasonableness, “tak[ing] into account the totality
of the circumstances.”
Id. at 51.
“Any sentence that is within
or below a properly calculated Guidelines range is presumptively
United States v. Louthian, 756 F.3d 295, 306 (4th
Our review of the record leads us to conclude that Kyle’s
Finally, our review of the record does not conclusively show
that counsel was ineffective and, thus, Kyle should raise this
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claim, if at all, in a 28 U.S.C. § 2255 (2012) motion.
United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016).
record in this case and have found no meritorious grounds for
This court requires that counsel inform Kyle, in writing, of the
right to petition the Supreme Court of the United States for
If Kyle requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
Counsel’s motion must state that a copy thereof
was served on Kyle.
We dispense with oral argument because the facts and legal
this court and argument would not aid the decisional process.
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