US v. Martrey Newby, No. 08-5271 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5271 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MARTREY ANTWAIN NEWBY, a/k/a Trey,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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 425month 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. the government favorable to has an a duty accused to upon disclose material U.S. 83, 87 (1963). Evidence is that is it request, material either to guilt or to punishment. 373 While also be must Brady v. Maryland, material when its suppression undermines confidence in the outcome of the trial. United States v. Kelly, 35 F.3d 2 929, 936 (4th Cir. 1994) (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 Giglio v. United falls States, within this 405 U.S. 150, the challenged 154 general (1972) rule. (internal quotation marks omitted). Upon review of 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 informant s motion to out-of-court suppress the identification first of confidential him based on allegedly unduly suggestive pretrial identification procedures. In challenging an identification procedure, the defendant must first establish suggestive. 1994). that the procedure was impermissibly Holdren v. Legursky, 16 F.3d 57, 61 (4th Cir. However, if the defendant fails to do so, the inquiry 3 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 photographs were officers view the similar informed the originals in and observe appearance. confidential In whether the addition, the 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 purchase. motion was incarcerated at the time of the controlled Thus, the district court did not err in denying the 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 procedures. his suspension and department rules and A defendant has the right to have a meaningful 4 opportunity to present a complete defense. United States v. Smith, 451 F.3d 209, 221 (4th Cir. 2006) (quoting States v. Scheffer, 523 U.S. 303, 329 (1998)). United 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 Id. (internal quotation marks omitted). witness s testimony. However, the district court may impose reasonable limits on cross-examination, [based] on such concerns confusion, repetition, and relevance. as prejudice, 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 standard of review). the officer. See id. at 220 (stating Moreover, contrary to Newby s assertion on appeal, the officer s testimony was not essentially the key to convicting him. heard three from controlled drug Besides the officer s confidential purchases testimony, informants with Newby who and the jury participated who recorded in those transactions through the use of audio and video equipment. The jury also heard testimony from witnesses who watched Newby cook and distribute charged crack conspiracy, cocaine as well during as supplied Newby with drugs. 5 the those time who frame claimed of to the have Finally, sentence. Newby challenges the reasonableness of his 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. (4th Cir. 2006). United States v. Johnson, 445 F.3d 339, 345 However, the district court must place on the record an individualized assessment based on the particular facts of the case before it. need not be elaborate or This individualized assessment 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. 577 (4th Cir. 2010). United States v. Lynn, 592 F.3d 572, To demonstrate plain error, a defendant must show that: (1) there was an error; (2) the error was plain; 6 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 Newby s sentence. the benefit of adequately explained the reasons for Moreover, we note that the district court had 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. 552 U.S. at 51. Gall, 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). United Newby has not rebutted that presumption on appeal. States v. Montes-Pineda, 445 F.3d 2006) (internal quotation marks omitted). 375, 379 (4th See Cir. We therefore conclude that the district court committed no significant procedural or substantive error in sentencing imprisonment. 7 Newby to 425 months 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 8
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