UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARTREY ANTWAIN NEWBY, a/k/a Trey,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (4:07-cr-00051-FL-l)
Submitted: October 13, 2010 Decided: December 3, 2010
Before NIEMEYER, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mitchell G. Styers, BANZET, THOMPSON & STYERS, PLLC, Warrenton,
North Carolina, for Appellant. George E. B. Holding, United
States Attorney, Ann M. Hayes, Joshua B. Royster, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Martrey Antwain Newby appeals the convictions and 425-
month sentence imposed following a jury trial on one count of
conspiracy to distribute and possess with intent to distribute
fifty grams or more of cocaine base, in violation of 21 U.S.C.
§ 846 (2006), and five counts of possession with intent to
distribute different quantities of cocaine base, in violation of
21 U.S.C. § 841(a)(1) (2006). On appeal, Newby contends that
the district court erred in denying his motion to compel, in
denying his motion to suppress photographic line-up evidence,
and in limiting his cross-examination of a police officer at
trial. Newby also argues that his sentence is unreasonable.
Finding no reversible error, we affirm.
Newby first argues that the district court erred in
denying his motion to compel access to documents pertaining to a
police department Internal Affairs (“IA”) investigation, which
he believes could have been used at trial to impeach officers
who had been suspended as a result of that investigation. While
the government has a duty to disclose material that is
“favorable to an accused upon request,” it must also be
“material either to guilt or to punishment.” Brady v. Maryland,
373 U.S. 83, 87 (1963). “Evidence is material when its
suppression undermines confidence in the outcome of the trial.”
United States v. Kelly, 35 F.3d 929, 936 (4th Cir. 1994)
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(quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).
Thus, “[w]hen the reliability of a given witness may well be
determinative of guilt or innocence, nondisclosure of evidence
affecting credibility falls within this general rule.”
Giglio v. United States, 405 U.S. 150, 154 (1972) (internal
quotation marks omitted).
Upon review of the challenged documents with these
standards in mind, we conclude that the district court did not
clearly err in denying Newby’s motion to compel. See United
States v. Trevino, 89 F.3d 187, 190 (4th Cir. 1996) (stating
standard of review). The IA investigation did not relate to the
investigation of Newby and thus had no bearing on his guilt or
innocence. Moreover, the documents were not significantly
probative of the officers’ character for truthfulness such that
the information therein would have materially undercut their
credibility and affected the outcome of the trial.
Next, Newby contends that the district court erred in
denying his motion to suppress the first confidential
informant’s out-of-court identification of him based on
allegedly unduly suggestive pretrial identification procedures.
In challenging an identification procedure, the defendant must
first establish that the “procedure was impermissibly
suggestive.” Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir.
1994). However, if the defendant fails to do so, the inquiry
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ends. See Harker v. Maryland, 800 F.2d 437, 444 (4th Cir. 1986)
(ending analysis after determining pretrial photographic array
was not impermissibly suggestive). In reviewing the district
court’s denial of a motion to suppress, we review the district
court’s factual determinations for clear error and its legal
determinations de novo. United States v. Branch, 537 F.3d 328,
337 (4th Cir. 2008).
We have carefully reviewed the record on appeal and
conclude that the photographic line-up was not impermissibly
suggestive. The magistrate judge and the district court had the
opportunity to view the originals and observe whether the
photographs were similar in appearance. In addition, the
officers informed the confidential informant that the
photographic line-up might not contain a picture of the suspect
and reasonably excluded from the line-up a picture of the person
the confidential informant initially named as a suspect because
that person was incarcerated at the time of the controlled
purchase. Thus, the district court did not err in denying the
motion to suppress the confidential informant’s pretrial
identification of Newby.
Newby also contends that the district court erred by
ruling that he could not cross-examine one of the investigating
officers about his suspension and department rules and
procedures. A defendant has the right to have “‛a meaningful
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opportunity to present a complete defense.’” United States v.
Smith, 451 F.3d 209, 221 (4th Cir. 2006) (quoting United
States v. Scheffer, 523 U.S. 303, 329 (1998)). Accordingly,
“the right of cross examination is a precious one, essential to
a fair trial,” and the defendant should be given “a reasonable
opportunity to conduct cross-examination that might undermine a
witness’s testimony.” Id. (internal quotation marks omitted).
However, the district court may “impose reasonable limits on
cross-examination, [based] on such concerns as prejudice,
confusion, repetition, and relevance.” Id.
Our review of the record leads us to conclude that the
district court did not abuse its discretion by limiting Newby’s
cross-examination of the officer. See id. at 220 (stating
standard of review). Moreover, contrary to Newby’s assertion on
appeal, the officer’s testimony was not “essentially the key to
convicting” him. Besides the officer’s testimony, the jury
heard from three confidential informants who participated in
controlled drug purchases with Newby and who recorded those
transactions through the use of audio and video equipment. The
jury also heard testimony from witnesses who watched Newby cook
and distribute crack cocaine during the time frame of the
charged conspiracy, as well as those who claimed to have
supplied Newby with drugs.
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Finally, Newby challenges the reasonableness of his
sentence. In reviewing a sentence, we must first ensure that
the district court did not commit any “significant procedural
error,” such as failing to properly calculate the applicable
Guidelines range, failing to consider the 18 U.S.C. § 3553(a)
(2006) factors, or failing to adequately explain the sentence.
Gall v. United States, 552 U.S. 38, 51 (2007). The district
court is not required to “robotically tick through § 3553(a)’s
every subsection.” United States v. Johnson, 445 F.3d 339, 345
(4th Cir. 2006). However, the district court “must place on the
record an ‛individualized assessment’ based on the particular
facts of the case before it. This individualized assessment
need not be elaborate or lengthy, but it must provide a
rationale tailored to the particular case at hand and adequate
to permit ‛meaningful appellate review.’” United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009) (quoting Gall, 552
U.S. at 50) (internal footnote omitted). This is true even when
the district court sentences a defendant within the applicable
Guidelines range. Id.
We review sentencing error asserted for the first time
on appeal for plain error. United States v. Lynn, 592 F.3d 572,
577 (4th Cir. 2010). To demonstrate plain error, a defendant
must show that: (1) there was an error; (2) the error was plain;
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and (3) the error affected his “substantial rights.” United
States v. Olano, 507 U.S. 725, 732 (1993).
Contrary to Newby’s assertion on appeal, our review of
the record reveals that the district court imposed a sentence
that was not greater than necessary to achieve the goals of
§ 3553(a). The district court gave due consideration to the
§ 3553(a) factors and adequately explained the reasons for
Newby’s sentence. Moreover, we note that the district court had
the benefit of the Supreme Court’s decision in Kimbrough v.
United States, 552 U.S. 85, 107 (2007), and was free to reject
the 100:1 crack-to-powder ratio.
Once we have determined there is no procedural error,
we must consider the substantive reasonableness of the sentence,
taking into account the totality of the circumstances. Gall,
552 U.S. at 51. Because the district court imposed a within-
Guidelines sentence, we presume the sentence is reasonable. See
United States v. Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir.
2010). Newby has not rebutted that presumption on appeal. See
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted). We therefore conclude
that the district court committed no significant procedural or
substantive error in sentencing Newby to 425 months’
imprisonment.
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Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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