                                                                              FILED
                    UNITED STATES COURT OF APPEALS                            MAR 27 2014

                                                                           MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                           U.S. COURT OF APPEALS




UNITED STATES OF AMERICA,                        No. 12-50335

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03433-H-1
                                                 Southern District of California,
  v.                                             San Diego

ROOSEVELT KYLE, Jr.,
                                                 ORDER
              Defendant - Appellant.


Before: SILVERMAN and HURWITZ, Circuit Judges, and VINSON, Senior
District Judge.*

       The panel has voted to deny Appellant’s petition for rehearing, and Judges

Silverman and Hurwitz have voted to reject his petition for rehearing en banc and

Judge Vinson so recommends.

       The full court has been advised of the petition for rehearing en banc, and no

active judge has requested a vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

       Appellant’s petition for rehearing and the petition for rehearing en banc are

DENIED.



       *
             The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.
      The Clerk is instructed to withdraw the memorandum disposition filed on

February 7, 2014 and to file the new memorandum disposition submitted for filing

with this order.
                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 27 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50335

              Plaintiff - Appellee,              D.C. No. 3:09-cr-03433-H-1

  v.
                                                 MEMORANDUM*
ROOSEVELT KYLE, Jr.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Marilyn L. Huff, District Judge, Presiding

                      Argued and Submitted February 4, 2014
                               Pasadena, California

Before: SILVERMAN and HURWITZ, Circuit Judges, and VINSON, Senior
District Judge.**

       Roosevelt Kyle, Jr. appeals his conviction and sentence for violation of 18

U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742. We affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.
                                         -2-
      Kyle first challenges the district court’s denial of his motion to suppress.

Kyle was on probation in California state court for having committed a felony, and

his probation agreement contained a broad consent-to-search condition. The

district court held a search of Kyle’s residence by his probation officer was

justified by reasonable suspicion, regardless of whether this condition permitted a

suspicionless search. See United States v. Knights, 534 U.S. 112, 120 n.6 (2001)

(“We need not address the constitutionality of a suspicionless search [pursuant to a

probation condition] because the search in this case was supported by reasonable

suspicion.”).

      Kyle contends that the district court erred when it based its reasonable

suspicion holding on the government’s statement of facts in response to Kyle’s

motion. Kyle argues that the government’s rendition of the facts, although not

disputed, was an insufficient basis on which to rule that reasonable suspicion

existed. Essentially, Kyle argues that the court should have forced the government

to prove its proffer, even though he admitted he had no contrary version of the

story or additional facts. Rather, his argument at the time was that the facts as

proffered by the government did not justify the search.

      The district court’s decision on the necessity of an evidentiary hearing on a

motion to suppress is reviewed for an abuse of discretion. United States v. Howell,
                                          -3-
231 F.3d 615, 620 (9th Cir. 2000). Although Kyle requested an evidentiary

hearing, he never questioned or objected to the accuracy of the government’s

version at all, much less with the “sufficient definiteness, clarity, and specificity to

enable the trial court to conclude that contested issues of fact exist.” Id. Under the

circumstances, the district court did not abuse its discretion in ruling on the legal

issue without an evidentiary hearing. Id. at 621 (“‘A hearing will not be held on a

defendant’s pre-trial motion to suppress merely because a defendant wants one.

Rather, the defendant must demonstrate that a “significant disputed factual issue”

exists such that a hearing is required.’”) (quoting United States v. Harris, 914 F.2d

927, 933 (7th Cir. 1990) with a citation omitted). Because Kyle “identified no

facts which, if proved, would allow the court” to grant his suppression motion, the

district court did not abuse its discretion in declining to conduct an evidentiary

hearing. Howell, 231 F.3d at 621(noting that “a boilerplate motion that relied

wholly on the fact that the government has the burden of proof” does not mandate

an evidentiary hearing).

      Second, the district court did not err in denying the motion to suppress. The

unchallenged facts put forth by the government clearly demonstrated a reasonable

suspicion that Kyle was engaged in criminal activity and that evidence of that

criminal activity would be found at his home. Knights, 534 U.S. at 122.
                                          -4-
      Third, 18 U.S.C. § 922(g)(1) does not violate Kyle’s Second Amendment

right to bear arms. United States v. Vongxay, 594 F.3d 1111, 1114 (9th Cir. 2010).

      Fourth, the district court properly granted an enhancement under U.S.S.G. §

3C1.1., which provides for a two-point increase if “the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the administration of

justice with respect to the investigation, prosecution, or sentencing of the instant

offense of conviction.” U.S.S.G. § 3C1.1. Kyle missed two sentencing hearings,

absconded from San Diego to Los Angeles, and had a bench warrant issued that

took 15 months to execute. See United States v. Petersen, 98 F.3d 502, 508 (9th

Cir. 1996) (holding that willful failure to appear at sentencing supported

obstruction of justice enhancement).

      Kyle argues that his obstruction was not “willful,” contending that he failed

to appear because of the shock of finding out right around the Christmas holidays

that his wife wanted a divorce , which led him to take solace with friends in Los

Angeles. Willful in this context means a defendant “engaged in intentional or

deliberate acts designed to obstruct.” United States v. Gilchrist, 658 F.3d 1197,

1206 (9th Cir. 2011). Kyle’s difficult family circumstances may provide an

explanation for his obstruction, but it doesn’t render it unintentional.

      AFFIRMED.
