* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. DENNIS SUESUE, Defendant - Appellant. No. 08-30397 D.C. No. 3:07-cr-00035-TMB
MEMORANDUM *

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 convicti on 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 r obbery of federal property, 18 U.S.C. § 

# FILED
JAN 25 2010 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 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 threaten ing 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 unde r 28 U.S.C. § 1291 and we affirm the conviction and sentence.
Suesue first argues that his rights we re 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 reco rd shows otherwise. Suesue provided no evidence that the government acted withbad 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 evid ence 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 1116,3 1119 (9th Cir. 1989) (in the absence of bad faith, there is no due process violation when law enforcement fails to gath er potentially exculpatory evidence).

The district court did not err when refu sing 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 de void 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 Senten cing Guidelines state that the defendant must have committed the instant offense “subsequent to sustaining at least two felony convictions of either a crime of vi olence or a controlled substance offense . .4 . . [And that the] date that a defendant su stained a conviction shall be the date that the guilt of the defendant has been establis hed, 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 c ontrolled 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 docum ents certified by the Army Custodian of Records and presented by the government established the statute under which Suesue was convicted. SeeUnited 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 c onvicted, 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.5 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.