United States v. Kevin Gayles ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7014
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN L. GAYLES,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. Henry E. Hudson, Senior District Judge. (3:08-cr-00438-HEH-1)
Submitted: February 10, 2021 Decided: February 17, 2021
Before AGEE and KEENAN, Circuit Judges, and SHEDD, Senior Circuit Judge.
Dismissed by unpublished per curiam opinion.
Geremy C. Kamens, Federal Public Defender, Frances H. Pratt, Assistant Federal Public
Defender, Laura J. Koenig, Assistant Federal Public Defender, OFFICE OF THE
FEDERAL PUBLIC DEFENDER, Alexandria, Virginia, for Appellant. G. Zachary
Terwilliger, United States Attorney, Alexandria, Virginia, Katherine Lee Martin, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin L. Gayles appealed from the district court’s order denying in part his motion
for a reduction of sentence. * After briefing was complete, Gayles’ attorney informed this
court that Gayles had died and filed an unopposed motion to dismiss. In his motion,
Gayles’ attorney further requested that this court remand to the district court with
instructions to vacate Gayles’ conviction and dismiss the indictment against him. While
we grant the motion to dismiss the appeal, we decline to remand the case.
The death of a defendant before direct appellate review of his conviction has
completed abates the cause of action ab initio. United States v. Rorie, 58 M.J. 399, 402 &
n.2 (C.A.A.F. 2003) (listing cases). We have held that an appellant’s death “pending
appeal of a criminal conviction abates not only the appeal but all proceedings in the
prosecution from its inception. In such a case, the appeal is dismissed and the cause
remanded to the district court with instructions to vacate the judgment and to dismiss the
indictment.” United States v. Dudley, 739 F.2d 175, 176 (4th Cir. 1984) (internal citations
omitted).
Gayles’ counsel seeks to have Gayles’ conviction vacated and his indictment
dismissed in accordance with Dudley. However, while Gayles died pending appeal, his
appeal was not from his conviction and sentence but rather from the denial in part of his
motion for reduction of sentence. Gayles’ conviction and sentence were long since
*
Gayles sought a reduction from 150 months to 36 months in prison. The district
court granted the motion in part, reducing Gayles sentence to 132 months.
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finalized, and there exists no possibility that Gayles’ conviction would have been
overturned or his original sentence invalidated, even were he successful on appeal. At best,
Gayles retained the possibility that his sentence would be further reduced. However, if the
district court’s order that was appealed were vacated due to Gayles’ death, the result would
be the removal of the beneficial reduction that Gayle received. As such, we decline to
vacate the district court’s underlying order.
Accordingly, we grant Gayles’ counsel’s motion to dismiss the appeal. 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.
DISMISSED
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