                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10285

              Plaintiff - Appellee,              D.C. No. 4:08-cr-00433-DCB-
                                                 GEE-1
  v.

KEVIN DEWANE MARTIN,                             MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                     Argued and Submitted February 17, 2012
                            San Francisco, California

Before: FISHER and IKUTA, Circuit Judges, and SEABRIGHT, District Judge.**

       The district court did not err by refusing to grant defendant Kevin Dewane

Martin an evidentiary hearing or a new trial based on his claim of a due process

violation under Brady v. Maryland, 373 U.S. 83 (1963). The record belied any


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable J. Michael Seabright, District Judge for the U.S.
District Court for Hawaii, sitting by designation.
allegation that the prosecution suppressed evidence that could have been used to

exculpate Martin or impeach prosecution witness Kristy Conrad. See Strickler v.

Greene, 527 U.S. 263, 281–82 (1999). Martin’s “plead the 5th” text message to

Conrad was facially incriminating, not exculpatory, and in any event the prosecutor

immediately disclosed it to defense counsel. The prosecutor had no obligation to

further investigate the text message conversation (if any) leading up to Martin’s

“plead the 5th” message because the allegedly exculpatory information was in

defense counsel’s possession. See Rhoades v. Henry, 598 F.3d 495, 502 (9th Cir.

2010); Raley v. Ylst, 470 F.3d 792, 804 (9th Cir. 2006). The government

discharged its obligation to disclose all relevant facts to defense counsel, cf. United

States v. Howell, 231 F.3d 615, 625 (9th Cir. 2000), and defense counsel had the

“incentive and opportunity” to conduct an investigation of Martin’s phone in time

for trial, United States v. Velte, 331 F.3d 673, 680 (9th Cir. 2003). Finally, even if

Conrad perjured herself by failing to mention the “plead the 5th” message when

questioned about her contact with Martin, the prosecutor satisfied her Brady

obligation by bringing it to the court’s attention at sidebar. See United States v.

Dupuy, 760 F.2d 1492, 1501 (9th Cir. 1985).

      We also reject Martin’s argument that his sentence was procedurally

unreasonable. The district court correctly calculated the Sentencing Guidelines


                                           2
range as 210 to 262 months and several times noted that the Guidelines range was

limited by the statutory maximum of twenty years. The district court also

considered and discussed the 18 U.S.C. § 3553(a) factors and adequately explained

the sentence selected. See Rita v. United States, 551 U.S. 338, 356 (2007); United

States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

      Martin’s argument that his sentence was substantively unreasonable because

the district court gave unmerited deference to the child pornography Guidelines

fails as well. The district court recognized that the Sentencing Guidelines were

advisory only, and in fact exercised its discretion to depart downward thirty

months from the low end of the Guidelines range in part because of a concern that

the Guidelines did not adequately distinguish between more and less culpable

defendants. See United States v. Ayala-Nicanor, 659 F.3d 744, 752 (9th Cir.

2011); cf. United States v. Henderson, 649 F.3d 955, 963–64 (9th Cir. 2011). The

district court provided a reasoned explanation for its decision and was entitled to

give substantial weight to the harm caused to society by child pornography and the

goal of general deterrence.

AFFIRMED.




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