United States of America v. ROOSEVELT KYLE, Jr.

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROOSEVELT KYLE, Jr.,
Defendant - Appellant.
No. 12-50335
D.C. No. 3:09-cr-03433-H-1
Southern District of California,
San Diego
ORDER
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.
FILED
MAR 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* The Honorable C. Roger Vinson, Senior District Judge for the U.S.
District Court for the Northern District of Florida, sitting by designation.

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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.

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ROOSEVELT KYLE, Jr.,
Defendant - Appellant.
No. 12-50335
D.C. No. 3:09-cr-03433-H-1
MEMORANDUM*
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.
FILED
MAR 27 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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,

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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.

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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.

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