                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4159


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TEODORO ROSAS-HERRERA, a/k/a Valentin Villegas Villa,

                Defendant – Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Thomas D. Schroeder,
District Judge. (1:11-cr-00160-TDS-1)


Submitted:   November 2, 2012           Decided:   December 13, 2012


Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
Ripley Rand, United States Attorney, Angela H. Miller, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Teodoro      Rosas-Herrera          appeals       his     conviction          and

seventy-one months’ sentence for illegally reentering the United

States after having been deported subsequent to an aggravated

felony conviction.            See 8 U.S.C. § 1326(a), (b)(2).                            For the

following reasons, we affirm.



                                             I.

               On February 6, 2011, Detective James Carter (Detective

Carter) of the Alamance County, North Carolina Sheriff’s Office

was on duty driving his patrol vehicle when he observed another

vehicle, traveling in a weaving pattern at approximately ten

miles per hour in the opposite lane, with its front windshield

completely      iced     over,      with   the    exception       of    a    three-inch       by

four-inch      area    on     the    driver’s       side.        In    the        judgment    of

Detective Carter, the driver of the vehicle could not adequately

see approaching traffic from either the vehicle’s right or left

side,    and    therefore,        was     driving    recklessly         in    violation       of

North    Carolina      law.         See    N.C.    Gen.       Stat.    § 20-140(b)         (“Any

person   who     drives     any     vehicle       upon    a    highway       or    any    public

vehicular area without due caution and circumspection and at a

speed or in a manner so as to endanger or be likely to endanger

any person or property shall be guilty of reckless driving.”).



                                              2
             After the vehicle passed, Detective Carter turned his

patrol    vehicle         around    in     order      to    effectuate        a   stop   of   the

vehicle    he       had    just    observed       with      the    iced-over       windshield.

Once turned around, Detective Carter observed that such vehicle

had turned left into a driveway and had pulled up to a closed

gate.     Detective Carter pulled his patrol vehicle up behind the

vehicle and activated his blue lights.

             Detective         Carter      approached        the     stopped       vehicle    and

asked     the       driver        for     his     driver’s         license        and    vehicle

registration.         The driver admitted that he did not have a valid

driver’s license or vehicle registration, but indicated that he

did   have      a    Mexican       driver’s       license,        identified        himself    as

Carlos Matias Ortiz, and provided a date of birth.                                As Detective

Carter returned to his patrol vehicle to run a check on the name

and date of birth, he observed the driver exit the vehicle.

Detective       Carter      then        advised       the   driver       to   remain     in   the

vehicle, but the driver fled on foot.                            Detective Carter called

for   back-up       and    chased        the    driver      on    foot    for     approximately

eight to ten minutes until the driver stumbled and fell.                                       At

this time, Detective Carter secured the driver in handcuffs and

arrested him for resisting a public officer.

             By      the    time        Detective      Carter      had    returned       to   his

patrol vehicle with the handcuffed driver in tow, two fellow

officers had arrived on the scene with a drug-sniffing canine.

                                                  3
The driver was placed in a patrol vehicle while one of the

officers walked the canine around the driver’s vehicle.                                    The

canine alerted on the driver’s side where the driver’s door had

remained open.        In examining where the canine had alerted, the

officer saw a firearm “‘sticking under the seat.’”                                (J.A. 73).

The firearm turned out to be loaded.

             Once   at     the    Alamance        County     jail,       the     driver    came

before a magistrate judge and again identified himself as Carlos

Matias Ortiz.        He was charged with the offenses of resisting a

public officer and illegally carrying a concealed weapon.                                   Of

relevance to the issues on appeal, the driver’s fingerprints,

which had been taken during the routine booking process, matched

the fingerprints of a man named Teodoro Rosas-Herrera.                               The name

Carlos     Matias    Ortiz       was   listed        as    an     alias.         The    driver

subsequently        admitted       that        his        real        name     was     Teodoro

Rosas-Herrera       (Rosas-Herrera)           and    that        he    was   a   citizen    of

Mexico.

             Further investigation revealed that Rosas-Herrera had

been   removed      from    the    United         States    on        November    17,     2008,

deported    to   Mexico,     and       had    never       been    given      permission     to

return to the United States.                 Records also showed that, on March

2, 2007, Rosas-Herrera had been convicted in the United States

District Court for the Western District of North Carolina, of

the offense of conspiracy to possess with intent to distribute a

                                              4
quantity of cocaine, which is an aggravated felony under federal

immigration     law.       See    8    U.S.C.     § 1101(a)(43)(B)        (defining

“aggravated     felony”    as    “illicit      trafficking    in   a     controlled

substance”).

           Rosas-Herrera entered a conditional plea of guilty to

one count of illegally reentering the United States after having

been deported subsequent to an aggravated felony conviction, see

id.   § 1326(a),   (b)(2),       reserving      the   right   to   challenge      on

appeal   the    district    court’s      denial    of   his   prior      motion   to

suppress all information law enforcement collected following his

arrest   that   revealed    his       true   identity   (e.g.,     his    name    and

fingerprints).     The district court sentenced him to seventy-one

months’ imprisonment and three years’ supervised release.                        This

timely appeal followed.



                                         II.

           Rosas-Herrera         first   challenges     the   district     court’s

denial of his motion to suppress the evidence of his identity.

According to Rosas-Herrera, Detective Carter unreasonably seized

him in violation of the Fourth Amendment when Detective Carter

initially stopped him, and, therefore, all evidence resulting

from such seizure should have been suppressed.                     Rosas-Herrera

argues that the initial stop of his vehicle by Detective Carter

violated the Fourth Amendment because Detective Carter lacked

                                         5
any reasonable, articulable suspicion that he had committed a

traffic violation in order to justify the stop.                                       Building on

this argument, Rosas-Herrera argues that he was then in exactly

the same legal posture as the defendants in United States v.

Oscar-Torres, 507 F.3d 224 (4th Cir. 2007), and Arizona v. Gant,

556 U.S. 332 (2009).

            Rosas-Herrera’s                challenge         to        the     district       court’s

denial of his motion to suppress is without merit.                                      The Fourth

Amendment guarantees “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable

searches and seizures,” U.S. Const. amend. IV, and the temporary

detention of an individual during the stop of an automobile by a

law   enforcement         officer      constitutes               a    seizure    of     the    person

within the meaning of the Fourth Amendment, United States v.

Ortiz, 669 F.3d 439, 444 (4th Cir. 2012).                                    Of relevance here,

“[o]bserving          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.”                                United States v. Branch,

537 F.3d 328, 335 (4th Cir. 2008).                          See also Ortiz, 669 F.3d at

444 (“law    enforcement           officers           may    stop       a    vehicle     that    they

observe is violating a traffic law”).

            In    considering               the       district           court’s        denial     of

Rosas-Herrera’s           motion      to    suppress,             we    review     the    district

                                                  6
court’s legal conclusions de novo and its factual findings for

clear error, construing the evidence in the light most favorable

to the government.           United States v. Kelly, 592 F.3d 586, 589

(4th Cir. 2010).         Moreover, we must “particularly defer to a

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).

            Here, the district court held an evidentiary hearing

on Rosas-Herrera’s motion to suppress, during which it heard

live testimony from Detective Carter regarding, inter alia, the

events leading up to his traffic stop of the vehicle driven by

Rosas-Herrera.         The    district     court       found      the    testimony    of

Detective     Carter    to     be    credible        and    concluded      that     “the

objective     evidence        support[ed]        a      reasonable,        articulable

suspicion     that     Rosas-Herrera           was      operating        his   vehicle

recklessly under the circumstances by attempting to drive on the

roadway without adequate vision through his windshield.”                          (J.A.

80).   Based on our review of the facts as found by the district

court and the applicable law, we hold that Detective Carter’s

stop of the vehicle driven by Rosas-Herrera was amply supported

by   reasonable   suspicion,         and   therefore        did    not    violate    the

Fourth Amendment.

                                           7
               Our    holding        takes        Rosas-Herrera’s           case     completely

outside of Oscar-Torres, and therefore renders such decision of

no aid to Rosas-Herrera on this issue.                               In Oscar-Torres, the

defendant       was    convicted          of    illegally         reentering       the     United

States following commission of a felony and deportation.                                       507

F.3d at 226.          On appeal, the defendant challenged the district

court’s     denial      of     his    motion           to    suppress       the    fingerprint

evidence and the records obtained through it as fruit of his

illegal arrest.         Id.        The government conceded the illegality of

the defendant’s arrest at the appellate level, but argued the

evidence should not be suppressed.                      Id. at 227.         We reversed the

judgment       and    remanded       the       case     for       the    district     court     to

determine      whether,       in     obtaining         the     defendant’s         fingerprints

(and attendant records), the police officers were motivated by

an investigative purpose, and if so, ordered the district court

to suppress such evidence.                     Id. at 232.               Unlike the illegal

arrest    in    Oscar-Torres,             which       led    to    the    discovery       of   the

defendant’s      fingerprints         and       attendant         records    in     that    case,

there was no illegal arrest in the present case and Detective

Carter’s    initial        stop      of    Rosas-Herrera’s              vehicle     was    legal.

Accordingly, Oscar-Torres is inapposite.

               Gant   is     inapposite         as     well.       In    Gant,     the    Supreme

Court held that “[p]olice may search a vehicle incident to a

recent occupant’s arrest only if the arrestee is within reaching

                                                  8
distance of the passenger compartment at the time of the search

or it is reasonable to believe the vehicle contains evidence of

the offense of arrest.”           556 U.S. at 351.         Rosas-Herrera only

challenges the legality of his initial stop by Detective Carter

and does not separately challenge the legality of the search of

his vehicle following the canine alert on the driver’s side.

See Branch, 537 F.3d at 335-36 (police may order canine sniff of

vehicle as part of routine traffic stop provided it does not

unreasonably delay length of stop).              Accordingly, Gant is of no

help to Rosas-Herrera.

              For the reasons stated, we hold the district court did

not    err    in    denying    Rosas-Herrera’s    motion    to   suppress   the

evidence of his identity obtained as the fruit of his initial

stop     by        Detective    Carter.          Accordingly,     we   affirm

Rosas-Herrera’s conviction for illegally reentering the United

States after having been deported subsequent to an aggravated

felony conviction.



                                      III.

              Rosas-Herrera challenges his sentence of seventy-one

months’ imprisonment on the basis that the district court should

not have varied upward fourteen months from the high-end of his

advisory sentencing range of forty-six to fifty-seven months’



                                          9
imprisonment under the United States Sentencing Guidelines (USSG

or Guidelines).         Finding no error, we affirm.

             We review the seventy-one month sentence imposed upon

Rosas-Herrera by the district court for reasonableness under the

deferential       abuse-of-discretion              standard.        United      States    v.

King, 673 F.3d 274, 283 (4th Cir.), cert. denied, 133 S. Ct. 216

(2012).    In reviewing a variant sentence as in the present case,

we consider “whether the sentencing court acted reasonably both

with respect to its decision to impose such a sentence and with

respect    to    the    extent    of    the    divergence         from   the    sentencing

range.”      United States v. Hernandez–Villanueva, 473 F.3d 118,

123   (4th      Cir.     2007).         Notably,          the   district       court    “has

flexibility in fashioning a sentence outside of the Guidelines

range,”    and     need    only     set   forth        sufficient        explanation      to

satisfy us that it considered the parties’ arguments and has a

reasoned        basis     for     its     decision.               United       States     v.

Diosdado-Star, 630 F.3d 359, 364 (4th Cir.), cert. denied, 131

S. Ct. 2946 (2011).

             Our review of the entire record unequivocally shows

that the district court specifically identified its reasons for

the above-Guidelines sentence, which was based on the Sentencing

Guidelines and the 18 U.S.C. § 3553(a) factors, and related to

the particular facts of Rosas-Herrera’s case.                        For example, the

district     court      expressly      stated       its    view   that    a    seventy-one

                                              10
month   sentence    was     necessary       to    deter   Rosas-Herrera         from

committing further crimes “particularly given the fact that a

federal district court had already sentenced him to 57 months,

and that proved to be insufficient to deter [Rosas-]Herrera from

returning to the United States without permission and, on top of

that,   [he    possessed]    a    loaded     firearm.”         (J.A.    136);    see

§ 3553(a)(2)(B)     (“The     court,    in       determining    the     particular

sentence to be imposed, shall consider . . . the need for the

sentence imposed . . . to afford adequate deterrence to criminal

conduct . . . .”).          For a second example, the district court

stated its view that a seventy-one month sentence was necessary

“to protect the public, particularly given his drug distribution

conviction    and   then    his   recent     detention    after        having   been

caught with a loaded firearm ready to fire.” (J.A. 136); see

§ 3553(a)(2)(C)     (“The     court,    in       determining    the     particular

sentence to be imposed, shall consider . . . the need for the

sentence imposed . . . to protect the public from further crimes

of the defendant . . . .”).            Our review of the entire record

establishes that the district court acted reasonably in both its

decision to vary upward from Rosas-Herrera’s advisory sentencing

range under the Guidelines and with respect to the extent of its

variance.     Accordingly, we affirm Rosas-Herrera’s sentence.




                                       11
                                     IV.

           In    conclusion,    we   affirm    Rosas-Herrera’s       conviction

and sentence.      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.

                                                                       AFFIRMED




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