Kevin L. Gayles appealed from the district courts order denying in part his motion for a reduction of sentence.
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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 appellants 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 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 courts 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 courts underlying order.
Accordingly, we grant Gayles’ counsels 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
FOOTNOTES
FOOTNOTE
. 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.
PER CURIAM:
Dismissed by unpublished per curiam opinion.
Unpublished opinions are not binding precedent in this circuit.