United States v. Kyles

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 22, 2002
• Docket: 01-30540
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-30540 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ERIC KYLES, also known as Dybees,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 99-CR-253-1-F - - - - - - - - - - February 20, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Eric Kyles appeals his guilty-plea conviction for one count

of conspiracy to possess with intent to distribute cocaine and

six counts of use of a communication facility to facilitate the

commission of a violation of 21 U.S.C. § 841(a)(1). He was

convicted of these charges in the Eastern District of Louisiana.

Kyles argues that his prosecution and conviction violate the

Double Jeopardy Clause because he also was prosecuted and

convicted in the Southern District of Alabama for conspiracy to

possess with intent to distribute cocaine and cocaine base, which

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-30540 -2-

he contends was part of the same drug conspiracy. See U.S.

CONST. amend. V. Kyles also contends that his sentence in the

Louisiana case was fundamentally unfair because the district

court did not consider his cooperation with the Government in the

Alabama case.

The Double Jeopardy Clause protects against a second

prosecution after acquittal or conviction and against multiple

punishments for the same offense. See Franshaw v. Lynaugh, 810

F.2d 518, 523 (5th Cir. 1987). “Naturally, no question of double

jeopardy arises unless jeopardy has first attached sometime prior

to what the defendant seeks to characterize as the ‘second’

prosecution.” Id. at 523. If a defendant pleads guilty,

jeopardy attaches when the plea is accepted. Id. Because

jeopardy attached first in the Louisiana proceedings, Kyles

cannot establish a double jeopardy violation from his conviction

and sentence in Louisiana. Additionally, his assertion that his

sentence was fundamentally unfair is without merit. Therefore,

we AFFIRM Kyles’ conviction and sentence.

Upon reconsideration, Kyles’ motion to supplement the record

is GRANTED.

MOTION TO SUPPLEMENT THE RECORD GRANTED; AFFIRMED.