USCA4 Appeal: 24-4215 Doc: 28 Filed: 03/28/2025 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-4215
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 Greenville. Louise W. Flanagan, District Judge. (4:07-cr-00051-FL-1)
Submitted: February 28, 2025 Decided: March 28, 2025
Before WYNN, QUATTLEBAUM, and HEYTENS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-4215 Doc: 28 Filed: 03/28/2025 Pg: 2 of 6
PER CURIAM:
In 2008, a jury convicted Martrey Antwain Newby on one count of conspiracy to
distribute and possess with intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 846, and five counts of possession with intent to distribute cocaine
base in varying amounts, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced
him to 425 months’ imprisonment and a 10-year term of supervised release. The written
judgment contained at least two special conditions of supervised release that the court did
not orally announce at sentencing. On appeal, Newby did not challenge the inconsistency
between the written judgment and the oral pronouncement of the conditions of his
supervised release. We affirmed the judgment. United States v. Newby, 403 F. App’x 809,
811 (4th Cir. 2010) (No. 08-5271). In 2020, the district court granted Newby’s motion for
a reduced sentence under § 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194 (“First Step Act”), and reduced Newby’s sentence to 294 months’ imprisonment
and four years of supervised release. To correct what it deemed to be a clerical error in the
judgment, the district court entered an amended judgment under Fed. R. Crim. P. 36 that
reflected both the new sentence under the First Step Act and a corrected list of Newby’s
convictions.
On appeal, relying on United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), and
United States v. Singletary, 984 F.3d 341, 344-45 (4th Cir. 2021), Newby argued for the
first time that the district court erred by imposing the two special conditions of supervised
release in the amended judgment that it did not announce when it orally imposed Newby’s
sentence. By published opinion, we vacated the judgment and remanded the case for a full
2 USCA4 Appeal: 24-4215 Doc: 28 Filed: 03/28/2025 Pg: 3 of 6
resentencing in light of the latent Rogers error. See United States v. Newby, 91 F.4th 196,
200 (4th Cir. 2024). On remand, the district court reimposed the 294-month sentence with
four years of supervised release. Newby now appeals his sentence after remand, arguing
that his sentence is substantively unreasonable.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard, regardless of whether the sentence is inside, just outside, or
significantly outside the [Sentencing] Guidelines range.” United States v. Nance, 957 F.3d
204, 212 (4th Cir. 2020) (cleaned up). We first consider “whether the district court
committed any procedural error, such as improperly calculating the Guidelines range,
failing to consider the § 3553(a) factors, or failing to adequately explain the chosen
sentence.” * Id. If we find no significant procedural error, we then consider the substantive
reasonableness of the sentence imposed. United States v. Arbaugh, 951 F.3d 167, 172 (4th
Cir. 2020).
“When considering the substantive reasonableness of a prison term, we examine the
totality of the circumstances to see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards set forth in § 3553(a).”
Arbaugh, 951 F.3d at 176 (cleaned up); see also Gall v. United States, 552 U.S. 38, 59-60
(2007) (stating that appellate court must give “due deference to the [d]istrict [c]ourt’s
* Although Newby does not challenge the procedural reasonableness of his sentence, our review confirms that it is procedurally reasonable. See United States v. Provance, 944 F.3d 213, 215 (4th Cir. 2019) (requiring “review [of] sentence for procedural reasonableness before addressing whether it is substantively reasonable”).
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reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the
sentence”). We presume that a sentence within the applicable Guidelines range is
substantively reasonable. United States v. Bennett, 986 F.3d 389, 401 (4th Cir. 2021).
Newby can rebut that presumption only “by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” Id. (internal quotation marks
omitted).
Newby asserts that his within-Guidelines sentence is substantively unreasonable on
two grounds. First, he contends that the district court failed to adequately consider that he
was young when he committed the offenses, he had significantly matured since his original
sentencing in 2008, and he was much less likely to recidivate at age 40. Second, Newby
contends that the district court should have varied downward because the career offender
Guideline greatly increased his Guidelines range. Specifically, Newby asserts that the
district court erred in not rejecting the career offender Guideline on policy grounds because
the Guideline is not based on empirical research, often leads to greater than necessary
sentencing recommendations, and fosters racially disparate outcomes for
African-American defendants.
We conclude that Newby fails to rebut the presumption of reasonableness afforded
his within-Guidelines sentence. Bennett, 986 F.3d at 401. At sentencing, the district court
expressed hope that Newby had changed over the preceding 16 years and recognized his
achievements while incarcerated. However, the district court explained that the chosen
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USCA4 Appeal: 24-4215 Doc: 28 Filed: 03/28/2025 Pg: 1 of 6
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 24-4215
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 Greenville. Louise W. Flanagan, District Judge. (4:07-cr-00051-FL-1)
Submitted: February 28, 2025 Decided: March 28, 2025
Before WYNN, QUATTLEBAUM, and HEYTENS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: G. Alan DuBois, Federal Public Defender, Eric Joseph Brignac, Chief Appellate Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Kristine L. Fritz, Assistant United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 24-4215 Doc: 28 Filed: 03/28/2025 Pg: 2 of 6
PER CURIAM:
In 2008, a jury convicted Martrey Antwain Newby on one count of conspiracy to
distribute and possess with intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 846, and five counts of possession with intent to distribute cocaine
base in varying amounts, in violation of 21 U.S.C. § 841(a)(1). The district court sentenced
him to 425 months’ imprisonment and a 10-year term of supervised release. The written
judgment contained at least two special conditions of supervised release that the court did
not orally announce at sentencing. On appeal, Newby did not challenge the inconsistency
between the written judgment and the oral pronouncement of the conditions of his
supervised release. We affirmed the judgment. United States v. Newby, 403 F. App’x 809,
811 (4th Cir. 2010) (No. 08-5271). In 2020, the district court granted Newby’s motion for
a reduced sentence under § 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132
Stat. 5194 (“First Step Act”), and reduced Newby’s sentence to 294 months’ imprisonment
and four years of supervised release. To correct what it deemed to be a clerical error in the
judgment, the district court entered an amended judgment under Fed. R. Crim. P. 36 that
reflected both the new sentence under the First Step Act and a corrected list of Newby’s
convictions.
On appeal, relying on United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), and
United States v. Singletary, 984 F.3d 341, 344-45 (4th Cir. 2021), Newby argued for the
first time that the district court erred by imposing the two special conditions of supervised
release in the amended judgment that it did not announce when it orally imposed Newby’s
sentence. By published opinion, we vacated the judgment and remanded the case for a full
2 USCA4 Appeal: 24-4215 Doc: 28 Filed: 03/28/2025 Pg: 3 of 6
resentencing in light of the latent Rogers error. See United States v. Newby, 91 F.4th 196,
200 (4th Cir. 2024). On remand, the district court reimposed the 294-month sentence with
four years of supervised release. Newby now appeals his sentence after remand, arguing
that his sentence is substantively unreasonable.
“We review the reasonableness of a sentence under 18 U.S.C. § 3553(a) using an
abuse-of-discretion standard, regardless of whether the sentence is inside, just outside, or
significantly outside the [Sentencing] Guidelines range.” United States v. Nance, 957 F.3d
204, 212 (4th Cir. 2020) (cleaned up). We first consider “whether the district court
committed any procedural error, such as improperly calculating the Guidelines range,
failing to consider the § 3553(a) factors, or failing to adequately explain the chosen
sentence.” * Id. If we find no significant procedural error, we then consider the substantive
reasonableness of the sentence imposed. United States v. Arbaugh, 951 F.3d 167, 172 (4th
Cir. 2020).
“When considering the substantive reasonableness of a prison term, we examine the
totality of the circumstances to see whether the sentencing court abused its discretion in
concluding that the sentence it chose satisfied the standards set forth in § 3553(a).”
Arbaugh, 951 F.3d at 176 (cleaned up); see also Gall v. United States, 552 U.S. 38, 59-60
(2007) (stating that appellate court must give “due deference to the [d]istrict [c]ourt’s
* Although Newby does not challenge the procedural reasonableness of his sentence, our review confirms that it is procedurally reasonable. See United States v. Provance, 944 F.3d 213, 215 (4th Cir. 2019) (requiring “review [of] sentence for procedural reasonableness before addressing whether it is substantively reasonable”).
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reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the
sentence”). We presume that a sentence within the applicable Guidelines range is
substantively reasonable. United States v. Bennett, 986 F.3d 389, 401 (4th Cir. 2021).
Newby can rebut that presumption only “by showing that the sentence is unreasonable
when measured against the 18 U.S.C. § 3553(a) factors.” Id. (internal quotation marks
omitted).
Newby asserts that his within-Guidelines sentence is substantively unreasonable on
two grounds. First, he contends that the district court failed to adequately consider that he
was young when he committed the offenses, he had significantly matured since his original
sentencing in 2008, and he was much less likely to recidivate at age 40. Second, Newby
contends that the district court should have varied downward because the career offender
Guideline greatly increased his Guidelines range. Specifically, Newby asserts that the
district court erred in not rejecting the career offender Guideline on policy grounds because
the Guideline is not based on empirical research, often leads to greater than necessary
sentencing recommendations, and fosters racially disparate outcomes for
African-American defendants.
We conclude that Newby fails to rebut the presumption of reasonableness afforded
his within-Guidelines sentence. Bennett, 986 F.3d at 401. At sentencing, the district court
expressed hope that Newby had changed over the preceding 16 years and recognized his
achievements while incarcerated. However, the district court explained that the chosen
sentence was based largely on Newby’s repeated interactions with the criminal justice
system from a young age, his disdain for authority and others, the need to protect the public,
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the undercurrent of “dangerousness” from the trial, and the profoundly negative impact his
actions had on his community. While the court acknowledged that Newby has
demonstrated maturity and growth since he was originally sentenced in 2008, the court
found that the severity and impact of Newby’s criminal history and his disciplinary
infractions—especially those incurred after the first sentencing—outweighed the
mitigating factors. Although the district court did not explicitly address Newby’s
arguments regarding the career offender Guideline, it did not abuse its discretion given that
“a sentencing court [is] entitled to consider policy decisions underlying the Guidelines,
including the presence or absence of empirical data . . . [but] it is under no obligation to do
so.” United States v. Rivera-Santana, 668 F.3d 95, 101 (4th Cir. 2012) (citation omitted);
United States v. Strieper, 666 F.3d 288, 295-96 (4th Cir. 2012) (rejecting argument that a
presumption of reasonableness should not apply to a within-child-pornography-Guidelines
sentence solely because “the relevant Guideline was developed pursuant to congressional
dictates rather than the Sentencing Commission’s expertise”). Furthermore, Newby’s
career offender designation was supported by a history of violent offenses—a factor in the
court’s consideration of the § 3553(a) factors. Given the “extremely broad discretion”
afforded to a district court “when determining the weight to be given each of the § 3553(a)
factors” in imposing sentence, see United States v. Jeffrey, 631 F.3d 669, 679 (4th Cir.
2011), Newby fails to rebut the presumption of reasonableness afforded his
within-Guidelines-range sentence. Bennett, 986 F.3d at 401. Accordingly, we conclude
that Newby’s sentence is substantively reasonable.
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We therefore affirm the judgment. We dispense with oral argument because the
facts and legal contentions are adequately presented in the materials before this court and
argument would not aid the decisional process.
AFFIRMED