United States v. Dennis Suesue

NOT FOR PUBLICATION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,
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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 . .
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. . [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.
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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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