                              UNPUBLISHED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resentencing by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
