UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
2

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) 
3

(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 
4

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 
5

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.
6

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; 
7

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 withinGuidelines 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. 
8

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