US v. Bennie Kyle
Filing
UNPUBLISHED PER CURIAM OPINION filed.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 [1000016725]. [16-4445]
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4445
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BENNIE KYLE,
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)
Submitted:
January 20, 2017
Decided:
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Affirmed by unpublished per curiam opinion.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,
West
Virginia,
Kristen
M.
Leddy,
Research
and
Writing
Specialist, Martinsburg, West Virginia, for Appellant.
Zelda
Elizabeth Wesley, Assistant United States Attorney, Clarksburg,
West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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pled
pursuant
PER CURIAM:
Bennie
Kyle
guilty,
to
a
written
plea
agreement, to distributing cocaine base within 1000 feet of a
protected
location,
in
(b)(1)(C), 860 (2012).
months’ imprisonment.
violation
of
21
U.S.C.
§§ 841(a)(1),
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
there
are
no
meritorious
grounds
for
appeal
but
questioning
whether Kyle’s sentence is substantively reasonable.
Kyle has
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.
We
review
a
district
court’s
ruling
that
a
defendant
breached the plea agreement under a bifurcated standard.
The
district court’s factual findings are reviewed for clear error,
while
“the
district
court’s
application
of
contract interpretation” are reviewed de novo.
Bowe, 257 F.3d 336, 342 (4th Cir. 2001).
only
the
district
court’s
factual
principles
of
United States v.
Here, Kyle challenges
finding
that
he
was
not
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
2
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marks omitted).
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Thus, we conclude that the district court did
not err in finding that Kyle breached his plea agreement.
We
review
a
defendant’s
abuse-of-discretion standard.”
38, 41 (2007).
sentence
“under
a
deferential
Gall v. United States, 552 U.S.
Under this standard, a sentence is reviewed for
both procedural and substantive reasonableness.
Id. at 51.
In
determining procedural reasonableness, we consider whether the
district
court
properly
calculated
the
defendant’s
advisory
Sentencing Guidelines range, gave the parties an opportunity to
argue
for
an
§ 3553(a)
appropriate
(2012)
factors,
selected sentence.
“significant
sentence,
and
error,”
the
sufficiently
Id. at 49-51.
procedural
considered
18
U.S.C.
explained
the
If a sentence is free of
then
we
review
it
for
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
reasonable.”
United States v. Louthian, 756 F.3d 295, 306 (4th
Cir. 2014).
Our review of the record leads us to conclude that Kyle’s
sentence
Kyle’s
is
procedurally
arguments
reasonableness
fail
accorded
sound.
to
Moreover,
overcome
his
the
we
conclude
presumption
within-Guidelines
that
of
sentence.
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.
See
United States v. Faulls, 821 F.3d 502, 507-08 (4th Cir. 2016).
In
accordance
with
Anders,
we
have
reviewed
the
entire
record in this case and have found no meritorious grounds for
appeal.
We
therefore
affirm
the
district
court’s
judgment.
This court requires that counsel inform Kyle, in writing, of the
right to petition the Supreme Court of the United States for
further review.
If Kyle requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel
may
move
representation.
in
this
court
for
leave
to
withdraw
from
Counsel’s motion must state that a copy thereof
was served on Kyle.
We dispense with oral argument because the facts and legal
contentions
are
adequately
presented
in
the
materials
before
this court and argument would not aid the decisional process.
AFFIRMED
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