                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                                 JAN 25 2010

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

UNITED STATES OF AMERICA,                        No. 08-30397

             Plaintiff - Appellee,               D.C. No. 3:07-cr-00035-TMB

  v.
                                                 MEMORANDUM *
DENNIS SUESUE,

             Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Alaska
                  Timothy M. Burgess, District Judge, Presiding

                      Argued and Submitted January 11, 2010
                               Seattle, Washington

Before: KLEINFELD, TASHIMA and TALLMAN, Circuit Judges.


       Dennis Suesue appeals his conviction and sentence for being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1); assaulting a federal agent, 18

U.S.C. § 111(a)(1) and (b); possessing with the intent to distribute cocaine, 21

U.S.C. § 841(a)(1) and (b)(1)(C); armed robbery of federal property, 18 U.S.C. §


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
2114(a); using a firearm in furtherance of a crime of violence, 18 U.S.C. §

924(c)(1)(A) and (c)(1)(A)(ii); and threatening to assault or murder a family

member of a federal law enforcement officer, 18 U.S.C. § 115(a)(1)(A) and

(b)(1)(4). We have jurisdiction under 28 U.S.C. § 1291 and we affirm the

conviction and sentence.



      Suesue first argues that his rights were violated under Brady v. Maryland,

373 U.S. 83 (1963), when the district court denied production of the video camera

for examination by the defense. We disagree. A violation under Brady requires

that there be evidence to suppress. See United States v. Price, 566 F.3d 900, 907

(9th Cir. 2009). Here, the district court found that there was no video recording

evidence to suppress and nothing in the record shows otherwise. Suesue provided

no evidence that the government acted with bad faith in failing to record the

meeting between Suesue and Agent King. See People of Territory of Guam v.

Muna, 999 F.2d 397, 400 (9th Cir. 1993) (“Muna has not demonstrated that the

failure of the police to produce this evidence was in bad faith. The only ‘evidence’

of bad faith that Muna offers is the observation that both the photographs and the

recording are missing. This is insufficient.”); Miller v. Vasquez, 868 F.2d 1116,




                                         2
1119 (9th Cir. 1989) (in the absence of bad faith, there is no due process violation

when law enforcement fails to gather potentially exculpatory evidence).



      The district court did not err when refusing to give a self-defense instruction

to the jury. A defendant is entitled to a jury instruction regarding his theory of

defense if it is legally sound and founded in the evidence. See Beardslee v.

Woodford, 358 F.3d 560, 577 (9th Cir. 2004). “A mere scintilla of evidence

supporting the defendant’s theory, however, is not sufficient to warrant a defense

instruction.” United States v. Morton, 999 F.2d 435, 437 (9th Cir. 1993) (internal

quotation omitted). Here, the record is devoid of any evidence that Suesue had a

reasonable belief that the use of force was necessary to defend himself against

immediate use of unlawful force. See United States v. Keiser, 57 F.3d 847, 851

(9th Cir. 1995).



      The district court properly counted Suesue’s 2004 drug conviction via his

nolo contendere plea for the purposes of career offender enhancement under U.S.

Sentencing Guideline § 4B1.1. The Sentencing Guidelines state that the defendant

must have committed the instant offense “subsequent to sustaining at least two

felony convictions of either a crime of violence or a controlled substance offense . .


                                           3
. . [And that the] date that a defendant sustained a conviction shall be the date that

the guilt of the defendant has been established, whether by guilty plea, trial, or plea

of nolo contendere.” USSG §4B1.2(c) (emphasis added); see also United States v.

Williams, 47 F.3d 993 (9th Cir. 1995). Suesue’s drug conviction fits the elements

for a career offender enhancement under USSG § 4B1.1. Nothing in §§ 4B1.1 and

2 supports Suesue’s argument that the controlled substance must be of a certain

amount or that the defendant’s conviction include importing or exporting of the

substance.



      Suesue’s 1998 conviction for burglary was properly counted towards the

career offender enhancement. The documents certified by the Army Custodian of

Records and presented by the government established the statute under which

Suesue was convicted. See United States v. Matthews, 278 F.3d 880, 885 (9th Cir.

2002). The elements of burglary under Article 129 of the Uniform Code of

Military Justice, for which Suesue was convicted, fit within the generic federal

definition set forth in Taylor v. United States, 495 U.S. 575 (1990), so his burglary

conviction is categorically a crime of violence under the sentencing guidelines.




                                           4
      The sentence imposed by the district court was reasonable. The district

court calculated the guideline range correctly, and then discussed, at length, the

other § 3553(a) factors, ultimately sentencing Suesue at the low-end of the

guideline range. There was no abuse of discretion. See United States v. Autery,

555 F.3d 864, 868 (9th Cir. 2009).



      AFFIRMED.




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