NOT FOR PUBLICATION FEB 27 2012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-
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
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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.
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