United States v. Bennie Kyle , 675 F. App'x 368 ( 2017 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bennie Kyle pled guilty, pursuant to a written plea
agreement, to distributing cocaine base within 1000 feet of a
protected location, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 860 (2012). The district court sentenced Kyle to 27
months’ imprisonment. 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 principles of
contract interpretation” are reviewed de novo. United States v.
Bowe, 257 F.3d 336, 342 (4th Cir. 2001). Here, Kyle challenges
only the district court’s factual 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
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marks omitted). Thus, we conclude that the district court did
not err in finding that Kyle breached his plea agreement.
We review a defendant’s sentence “under a deferential
abuse-of-discretion standard.” Gall v. United States, 552 U.S.
38, 41 (2007). 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 appropriate sentence, considered the 18 U.S.C.
§ 3553(a) (2012) factors, and sufficiently explained the
selected sentence. Id. at 49-51. If a sentence is free of
“significant procedural error,” 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 is procedurally sound. Moreover, we conclude that
Kyle’s arguments fail to overcome the presumption of
reasonableness accorded his within-Guidelines 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 in this court for leave to withdraw from
representation. 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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