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UNPUBLISHED PER CURIAM OPINION filed.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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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