UNPUBLISHED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Dismissed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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