UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4957
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
MICHAEL UYIOGHOSA OHANGBON,
Defendant – Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:09-cr-00346-TDS-1)
Submitted: May 31, 2011 Decided: June 14, 2011
Before WILKINSON, DAVIS, and WYNN, Circuit Judges.
Conviction affirmed, sentence vacated, and case remanded for
resentencing by unpublished per curiam opinion.
David B. Freedman, CRUMPLER FREEDMAN PARKER & WITT, Winston-
Salem, North Carolina, for Appellant. Ripley Rand, United
States Attorney, Michael F. Joseph, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In October 2009, a federal grand jury charged Michael
Uyioghosa Ohangbon with possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count
One); maintaining a drug-involved premises, in violation of 21
U.S.C. § 856(a)(1) (2006) (Count Two); possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1)
(2006) (Count Three); and possession of a firearm by an illegal
alien, in violation of 18 U.S.C. § 922(g)(5) (2006) (Count
Four).
Ohangbon moved to suppress the evidence recovered from
his vehicle following a traffic stop and from the subsequent
search of his residence. The district court denied the motion,
and thereafter Ohangbon pleaded guilty to Counts One and Three
pursuant to a plea agreement. 1 He was sentenced to forty-two
months’ imprisonment. This appeal followed.
On appeal Ohangbon contends that the district court
erred in denying his suppression motion because police lacked
probable cause or reasonable suspicion to stop his vehicle.
Ohangbon also asserts that the district court procedurally erred
in sentencing when it enhanced his offense level by four levels.
1
Ohangbon preserved his right to appeal the district
court’s ruling on the motion to suppress. Fed. R. Crim. P.
11(a)(2).
2
We affirm his convictions but vacate and remand for
resentencing.
We review factual findings underlying the district
court’s denial of a motion to suppress for clear error and legal
conclusions de novo. United States v. Blake, 571 F.3d 331, 338
(4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010).
A factual finding is clearly erroneous if this court “on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. Harvey,
532 F.3d 326, 337 (4th Cir. 2008) (internal quotation marks
omitted). However, “if the district court’s account of the
evidence is plausible in light of the record viewed in its
entirety,” we will not reverse the district court’s finding even
if we would have “decided the fact differently.” United
States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal
quotation marks and alteration omitted). In other words, when
two views of the evidence are permissible, “the district court’s
choice between them cannot be clearly erroneous.” Id. (internal
quotation marks and alteration omitted).
We also defer to the district court’s credibility
determinations, “for it is the role of the district court to
observe witnesses and weigh their credibility during a pre-trial
motion to suppress.” United States v. Abu Ali, 528 F.3d 210,
232 (4th Cir. 2008) (internal quotation marks omitted). We
3
construe the evidence in the light most favorable to the
Government as the party prevailing below. United States v.
Griffin, 589 F.3d 148, 150 (4th Cir. 2009), cert. denied, 131 S.
Ct. 1599 (2011).
A traffic stop of a vehicle constitutes a seizure
within the meaning of the Fourth Amendment and is permissible if
the officer has either probable cause to believe a traffic
violation has occurred, Whren v. United States, 517 U.S. 806,
809-10 (1996), or a reasonable suspicion of unlawful conduct,
Terry v. Ohio, 392 U.S. 1, 20-22 (1968), regardless of the
officer’s subjective motivations, Whren, 517 U.S. at 810,
813-19. See United States v. Branch, 537 F.3d 328, 335
(4th Cir. 2008) (“Observing a traffic violation provides
sufficient justification for a police officer to detain the
offending vehicle for as long as it takes to perform the
traditional incidents of a routine traffic stop.”).
Ohangbon identifies inconsistencies in the testimony
of Detective Saintsing, the officer who conducted the traffic
stop, concerning the alleged violations that led to the stop.
He argues that Saintsing lacked a legitimate basis to initiate a
stop and that the purported traffic violations relied upon by
Saintsing were pretextual.
The district court acknowledged the inconsistencies in
Saintsing’s testimony but found:
4
any discrepancies in Saintsing’s testimony do not
undermine his credibility to the point of causing the
court to reject it all. Based on the totality of the
circumstances, the court finds Saintsing credible
regarding the critical fact that he observed the
Mercedes change lanes erratically, run off the road,
and swerve within a lane during its travel down the
highway.
Deferring to the district court’s credibility determinations and
viewing the evidence in the light most favorable to the
Government, we conclude that Saintsing had reasonable suspicion
to initiate a traffic stop notwithstanding the discrepancies
Ohangbon identifies.
Ohangbon contends that, in any event, his movements
did not violate North Carolina law because there was no
testimony that he drove his vehicle so unsafely as to endanger
another. We disagree. North Carolina law provides that drivers
ensure their movements can be made in safety. See N.C. Gen.
Stat. §§ 20-146(d)(1), 20-154(a) (2009). The law does not
distinguish between the driver’s own safety and the safety of
other motorists. The district court thus did not err in
concluding Detective Saintsing had reasonable suspicion that
Ohangbon was violating North Carolina traffic laws. Ohangbon’s
erratic movements supplied a reasonable suspicion that he was
not able or willing to determine whether his movements could be
made in safety. Any subjective motivations Saintsing may have
5
had in stopping Ohangbon cannot alter this conclusion. Whren,
517 U.S. at 810, 813-19.
Ohangbon further argues that the illegible
registration sticker on his license plate did not violate N.C.
Gen. Stat. § 20-111(1), (2) (2009), because he did not act
willfully. Because Ohangbon’s erratic driving alone supplied
Saintsing with reasonable suspicion to initiate the traffic
stop, we need not reach this issue.
Next, Ohangbon argues that the district court
committed procedural error at sentencing when it misapplied the
advisory Sentencing Guidelines. Specifically, he argues that the
district court erred when it applied a four-level enhancement to
his offense level based on its finding that he possessed a
firearm in connection with another felony offense. See U.S.
Sentencing Guidelines Manual (“USSG”) § 2K2.1(b)(6) (2009). 2
The Guidelines allow for a four-level increase of a
defendant’s offense level where “the defendant used or possessed
any firearm or ammunition in connection with another felony
offense.” USSG § 2K2.1(b)(6). A firearm is possessed in
connection with another offense if the firearm “facilitated, or
had the potential of facilitating,” the other offense. USSG
2
The search of Ohangbon’s residence disclosed illicit drugs
in his bedroom and two handguns in his garage.
6
§ 2K2.1 cmt. n.14(A). “This requirement is satisfied if the
firearm had some purpose or effect with respect to the other
offense, including if the firearm was present for protection or
to embolden the actor.” United States v. Jenkins, 566 F.3d 160,
162 (4th Cir. 2009) (internal quotation marks, citations, and
alterations omitted). Here, the district court, relying on
United States v. Manigan, 592 F.3d 621 (4th Cir. 2010), among
other cases, concluded that the Government had established the
applicability of the four-level enhancement.
The district court erred, however, in reaching its
finding, by substituting the standards applicable to an
enhancement under § 2D1.1(b)(1) to one applicable under
§ 2K2.1(b)(6). 3 Those provisions are not interchangeable.
Manigan, for example, concerned the application of USSG
§ 2D1.1(b)(1), which applies to an individual convicted of a
narcotics offense while in possession of a weapon; in contrast,
§ 2K2.1(b)(6) applies to an individual convicted of a firearms
offense who used or possessed a firearm “in connection with
another felony offense.” USSG § 2K2.1(b)(6). Section
3
Although Ohangbon failed to present this precise argument,
we exercise our discretion to reach it because the broader issue
of the appropriateness of the § 2K2.1(b)(6) enhancement cannot
be addressed without setting forth the appropriate standard.
See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am.,
Inc., 508 U.S. 439, 448 (1993); United States v. Heater, 63 F.3d
311, 331 n.5 (4th Cir. 1995).
7
2D1.1(b)(1) provides for a two-level enhancement while
§ 2K2.1(b)(6) provides for a four-level enhancement.
The different penalties in § 2D1.1(b)(1) and
§ 2K2.1(b)(6) are reflected in their elements and shifting
burdens. A two-level enhancement under § 2D1.1(b)(1) is proper
where the Government proves “[a] weapon was present;” it then
falls to the defendant to prove that “it is clearly improbable
that the weapon was connected with the offense.” USSG § 2D1.1
cmt. n.3. In contrast, a § 2K2.1(b)(6) enhancement will apply
only if the Government proves that “the firearm or ammunition
facilitated, or had the potential of facilitating, another
felony offense or another offense, respectively.” USSG § 2K2.1
cmt. n.14(a). See United States v. Nale, 101 F.3d 1000, 1004
(4th Cir. 1996) (disapproving of analogizing “in connection
with” language in § 2K2.1(c) to § 2D1.1(b)(1) and placement of
burden an defendant to show no “connection”). Here, although it
purported to apply § 2K2.1(c), the district court adverted to
the “shifting burden” standard applicable to the two-level
enhancement provided in § 2D1.1(b)(1), stating, “the Court finds
that the Defendant has not carried the burden of demonstrating
that it was clearly improbable that the handguns were not used
in connection with the drug activity.” J.A. 122-23.
For the reasons set forth above, we affirm Ohangbon’s
convictions. However, because it appears that the district
8
court erroneously applied the “shifting burden” approach of §
2D1.1(b)(1) to impose a four-level enhancement under §
2K2.1(b)(6), we vacate Ohangbon’s sentence as procedurally
unreasonable. We remand for resentencing consistent with the
views expressed in this opinion. 4 We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the
decisional process.
CONVICTION AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED FOR RESENTENCING
4
By this disposition, we indicate no opinion as to the
appropriateness of a four-level enhancement under § 2K2.1(b)(6)
assessed under the proper standard.
9