                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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



                                          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   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.



                                        7
           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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