                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 08-4733


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

           v.

RAY PROSISE, a/k/a Steiner, a/k/a Raymond Prosise,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Richard L. Williams, Senior
District Judge. (3:07-cr-00322-RLW-1)


Argued:   January 27, 2010                 Decided:   February 26, 2010


Before NIEMEYER, KING, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: James T. Maloney, MALONEY & DAVID, PLLC, Richmond,
Virginia, for Appellant.    Michael Calvin Moore, OFFICE OF THE
UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.     ON
BRIEF:   Dana  J.   Boente,   Acting  United   States  Attorney,
Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Ray Prosise was convicted of five drug- and firearm-related

offenses in the Eastern District of Virginia and sentenced to

life plus sixty months’ imprisonment.               In this appeal, Prosise

contends that the district court erred by denying his pretrial

motion    to   suppress   evidence     and    in   applying      the   Sentencing

Guidelines.      As explained below, we affirm.



                                       I.

     On April 1, 2008, at the conclusion of a two-day trial in

Richmond, the jury returned verdicts of guilty as to all five

counts    against   Prosise    in    the    operative    indictment. 1       Those

counts were:      conspiracy to distribute five kilograms or more of

cocaine hydrochloride (“cocaine”) and fifty grams or more of

cocaine   base    (“crack”),    in   contravention       of   21    U.S.C.   § 846

(Count One); possession of a firearm in furtherance of a drug

trafficking      crime,   in   violation     of    18   U.S.C.     § 924(c)(1)(A)

(Count Two); possession of a firearm by a convicted felon, in

contravention of 18 U.S.C. § 922(g)(1) (Count Three); assault on

a federal officer, in violation of 18 U.S.C. § 111(a)(1) (Count


     1
        The operative indictment was the Second Superseding
Indictment of January 22, 2008, which is found at J.A. 138-42.
(Citations herein to “J.A. __” refer to the contents of the
Joint Appendix filed by the parties in this appeal.)



                                       2
Four); and use of a communication facility in the commission of

a felony, in contravention of 21 U.S.C. § 843(b) (Count Seven).

       On July 2, 2008, the district court sentenced Prosise to

life plus sixty months’ imprisonment.                     Prosise then timely noted

this    appeal    from   the    court’s          final     judgment.          We    possess

jurisdiction      pursuant     to    18     U.S.C.       § 3742(a)      and    28    U.S.C.

§ 1291.



                                            II.

       In   assessing    a     trial      court’s        ruling    on    a    motion      to

suppress, we review the court’s factual findings for clear error

and its legal determinations de novo.                        See United States v.

Kellam, 568 F.3d 125, 132 (4th Cir. 2009).                    In so doing, we must

construe    the    evidence     in     the       light     most    favorable        to    the

prevailing party.        See United States v. Branch, 537 F.3d 328,

337 (4th Cir. 2008).           We review sentences under a deferential

abuse-of-discretion          standard,           “first     ensur[ing]         that       the

district     court   committed         no    significant          procedural        error,”

including “improperly calculating[] the Guidelines range.”                               Gall

v. United States, 552 U.S. 38, 51 (2007).                     In assessing whether

a sentencing court properly applied the Guidelines, we review

factual findings for clear error and legal conclusions de novo.

See United States v. Chacon, 533 F.3d 250, 253 (4th Cir. 2008).



                                             3
                                      III.

                                       A.

     On    October    5,    2007,   prior    to   trial,   Prosise     filed   his

motion to suppress evidence.            The district court conducted a

hearing    on   the   suppression     motion      on   November   9,   2007,   and

denied the motion by its Order of November 15, 2007, for reasons

explained       in    the    accompanying         Memorandum      Opinion      (the

“Opinion”). 2    In ruling on the suppression motion, the court made

the following findings of fact:

     Since 2005, [Prosise] had been the subject of an on-
     going investigation into alleged drug distribution.
     Law   enforcement   had   interviewed   more  than   six
     different informants or witnesses who had provided
     information about the defendant’s alleged activities
     over a period of approximately two years.             An
     informant referred to herein as Confidential Source
     (“CS”) provided information to law enforcement in
     August 2007.    He told law enforcement that he had
     assisted   the   defendant   in  transporting   kilogram
     quantities of cocaine in the past, and he provided
     specific information regarding activities that had
     taken place at various locations. On August 16, 2007,
     the CS told law enforcement that Prosise was going to
     North Carolina to pick up multiple kilograms of
     cocaine and transport it back to Virginia in Prosise’s
     green Suburban.    Numerous conversations took place on
     August 16 and 17 between the CS and law enforcement,
     as the CS continued to update law enforcement on
     Prosise’s alleged activities.

          Several law enforcement agencies were involved in
     the investigation, including agents from the Bureau of
     Alcohol, Tobacco, Firearms, and Explosives (ATFE),
     agents from the Drug Enforcement Agency (DEA), members

     2
         The Opinion is found at J.A. 127-34.



                                       4
    of the Richmond District Office High Intensity Drug
    Trafficking Area Task Force (TF), and members of the
    Sussex County, Virginia Sheriff’s Department.       On the
    morning of August 17, law enforcement received new
    information    from    the    CS    regarding    Prosise’s
    whereabouts, including information that the defendant
    had returned from North Carolina with a quantity of
    cocaine, that he was armed with a .40 caliber Glock
    handgun with a laser sight and another handgun, and
    that he was at the residence of his wife/girlfriend at
    18813 Manson Church Road, McKenney, Virginia.        After
    receiving that information, a group of law enforcement
    officers, including officers and agents from the ATFE,
    DEA, TF, and Sussex County Sheriff’s Department,
    gathered near the residence at 18813 Manson Church
    Road,   McKenney,   Virginia,    waiting   while   another
    officer and personnel in the U.S. Attorney’s Office
    prepared documents to obtain a federal search warrant
    for that residence and another used by the defendant.
    The CS had also reported that it was anticipated that
    the defendant would remain at that residence until
    approximately 11:00 a.m.[3] Based on that information,
    law enforcement had located the defendant’s green
    Suburban at 18813 Manson Church Road, McKenney,
    Virginia.   Law enforcement then developed a plan to
    stop the defendant in his vehicle if he left the
    residence before the search warrants were signed and
    executed.   This plan was communicated to the various
    law enforcement officers, and the officers positioned
    themselves and their vehicles to carry out the plan.




    3
       Although the district court found that the CS “reported
that it was anticipated that the defendant would remain at [the
Manson Church Road] residence until approximately 11:00 a.m.,”
Opinion 2, the record reflects that the CS informed the officers
that Prosise would remain there until approximately noon.    See
J.A. 57-58 (hearing testimony of ATFE Special Agent Sean Netzel
that “[t]he informant told us that the . . . particular vehicle
Mr. Prosise was driving contained a large quantity of cocaine.
That that vehicle and Mr. Prosise were going to be at a specific
residence.   And . . . that Mr. Prosise [was] going to stay at
that residence until approximately noon on Friday, at which
point [he] would leave and distribute this cocaine”).



                                5
     At approximately 11:45, the defendant left the
residence.    The officers moved into position with two
vehicles, driven by TF Officer Talbert and TF Officer
Layman, blocking Lew Jones Road approximately one mile
from where the defendant turned right onto Lew Jones
Road   from    Manson   Church    Road.      TF Supervisor
Blackwood, who was driving a vehicle that was
positioned immediately in front of the defendant on
Lew Jones Road at a speed of approximately 25 m.p.h.,
activated his emergency lights, and began to slow
down. DEA Agent Montgomery, who was driving a vehicle
that was immediately behind the defendant’s vehicle,
moved in closer to the defendant’s vehicle.            The
defendant moved his vehicle from side to side,
attempting to get around Blackwood, but Blackwood
slowed down even more, stopped, and then reversed
slowly, attempting to contain the defendant’s vehicle.
At the same time, Montgomery tried to assist with
vehicle containment from the rear and inadvertently
bumped the defendant’s car’s rear bumper.              The
defendant then accelerated, turned left, and hit the
rear driver’s side of Blackwood’s vehicle.             The
defendant then drove up the left side embankment of
Lew Jones Road, with his right two tires in the
drainage ditch and his left two tires on the top of
the embankment of the road, near the fence.             He
stopped briefly at the beginning of an open driveway,
where he appeared to be stuck in the drainage ditch.
At this point, several officers got out of their
vehicles, wearing bullet-proof vests with police
insignia.    Talbert and Layman were in the driveway,
directly   in    front   of   the   defendant’s  Suburban.
Talbert and others gave commands to the defendant,
identifying themselves as the police and ordering him
out of the car. As Blackwood approached the passenger
door    of   the     defendant’s    car,    the  defendant
accelerated, the engine raced, the car rose up several
feet, and it headed for Talbert.          As the car came
toward him, Talbert fired four rounds into the
passenger side rear tire and rim. The defendant made
a sharp left turn into the driveway and drove across
the property, followed by Blackwood and Montgomery in
their vehicles. The defendant stopped at a pond, then
appeared to drive purposefully straight into the pond.
He disregarded the officers’ instructions to come out
of the vehicle, instead remaining in the vehicle and
throwing what appeared to be 8 to 10 one-ounce baggies

                            6
       of white powder and other items out of the car into
       the pond for several minutes.       He finally exited
       [through] the passenger side window, waded ashore, and
       was placed under arrest.   The officers retrieved the
       baggies and a .40 caliber Glock handgun with a laser
       sight from the pond just outside the Suburban’s
       driver’s side door.    They also found scales in the
       car.

Opinion 1-4 (footnote and citations omitted).

       Prosise had moved “to suppress any and all evidence taken

from   [him]      or     his    person       or       his    automobile       after    he     was

illegally        detained           and     searched          in     violation         of     his

Constitutional rights.”                   J.A. 16.          Prosise relied on the same

suppression      theory        in    the    district         court   that   he    asserts         on

appeal:     that he was seized for Fourth Amendment purposes as of

the time the officers initiated the roadblock, and that, at that

point, there was no reasonable suspicion of criminal activity to

justify a Terry stop.                See Illinois v. Wardlow, 528 U.S. 119,

123 (2000) (recognizing that, under Terry v. Ohio, 392 U.S. 1

(1968), “an officer may, consistent with the Fourth Amendment,

conduct    a    brief,       investigatory            stop    when   the    officer         has   a

reasonable,       articulable          suspicion        that       criminal      activity         is

afoot”).

       The district court rejected the proposition that Prosise

was    seized        when    the     officers         initiated      the    roadblock,            as

“Prosise       was     not     stopped      by    the       roadblock      set    up   by     the

officers.”       Opinion 6 (distinguishing Brower v. County of Inyo,


                                                  7
489 U.S. 593, 599 (1989), where the suspect “was meant to be

stopped by the physical obstacle of the roadblock — and . . .

was   so   stopped”).            The   court        also    rejected       any       notion    that

Prosise     was    seized     when     his      vehicle          collided      with    those    of

officers Montgomery and Blackwood, based on its findings “that

Agent      Montgomery’s          bumping     of          Prosise’s        rear       bumper    was

inadvertent and that [Prosise] caused the crash into Blackwood’s

vehicle.”      Id. at 6-7 (recognizing that, under Brower, 489 U.S.

at 597, police may effect seizure by intentionally sideswiping

suspect’s      car    and     thereby        producing            crash       that    terminates

suspect’s freedom of movement).                       As such, the court concluded

that “there was no seizure of [Prosise] until he exited his

vehicle     [into    the    pond],       waded       ashore,       and    submitted       to    the

officers.”        Id. at 7.

      Next,    the    district         court        ruled    that,       at    the    time     they

initiated the roadblock, the officers “had reasonable suspicion

based on articulable facts that the defendant was engaged in

criminal      activity.”           Opinion          7.       The     court       premised       its

reasonable suspicion ruling on “the on-going investigation of

the   defendant’s        drug     distribution             activities,         the    historical

information       that     had    been     provided,         and    the       up-to-the-minute

information       being     provided       by       the     CS    about       the    defendant’s

illegal activities in the hours just prior to this incident.”

Id.     Indeed, the court recognized “that the information that law

                                                8
enforcement had regarding the defendant was provided by numerous

informants and not just a single anonymous tip from an unknown

informant.”     Id. (distinguishing Florida v. J.L., 529 U.S. 266,

270-71 (2000)).        The court emphasized that “[t]he officers had

historical    information         provided     by     at   least       six   different

informants     and     a     CS    who   was        providing        up-to-the-minute

information regarding the defendant.                   Some of the information

provided by the CS was in fact corroborated by the observations

of various law enforcement officers.”                Id. at 7-8.

     We     conclude       that   the    district      court         properly   denied

Prosise’s motion to suppress.            First of all, Prosise’s theory of

illegal seizure rests on the proposition that he was seized as

of the time the officers initiated the roadblock, in that the

roadblock    partially      restrained       his    freedom     of    movement,   even

though it did not stop him.               Put simply, such proposition is

foreclosed by Supreme Court precedent.                 See California v. Hodari

D., 499 U.S. 621, 626 (1991) (“The narrow question before us is

whether, with respect to a show of authority as with respect to

application of physical force, a seizure occurs even though the

subject does not yield.            We hold that it does not.”); Brower,

489 U.S. at 599 (“We think it enough for a seizure that a person

be stopped by the very instrumentality set in motion or put in

place in order to achieve that result.”).                       Moreover, Prosise

acknowledges that we must defer to the district court’s findings

                                         9
— specifically that he was not stopped by the roadblock, but

rather intentionally drove into the pond, attempted for several

minutes       to    discard       evidence,        and        only   thereafter         exited    his

vehicle and surrendered to the officers — because such findings

are not clearly erroneous.                   Thus, there is no merit to Prosise’s

assertion that he was seized as soon as the roadblock began.

       In any event, even if Prosise was seized when the officers

initiated the roadblock, the information provided by the CS was

sufficiently         reliable          to    establish         reasonable         suspicion      that

Prosise       was        currently      engaged         in     criminal          activity.        The

officers had heard from at least five witnesses, in addition to

the    CS,    that        Prosise      was    involved         in    drug    trafficking;        the

identities          of     the     informant/witnesses                were        known     to   the

officers;          the     CS    was    giving          the     officers         up-to-the-minute

information         about        Prosise’s     activities,           including          information

that    his    vehicle          contained      a   large        quantity         of    cocaine   that

Prosise intended to distribute on the day of his arrest; and the

officers corroborated several details of the CS’s information,

including the description of Prosise’s vehicle, the residence

where it was parked, and the fact that Prosise would leave the

residence in the vehicle at approximately noon on the day in

question.          See supra note 3; see also Alabama v. White, 496 U.S.

325, 332 (1990) (recognizing that even anonymous tip can justify

Terry     stop           where     “significant               aspects       of        the   caller’s

                                                   10
predictions were verified”).                In these circumstances, we affirm

the   district       court’s    denial      of    Prosise’s       motion     to   suppress

evidence.

                                             B.

      In    sentencing        Prosise,      the       district    court     adopted    the

probation officer’s Presentence Investigation Report (the “PSR”)

without change.         On combined Counts One, Three, Four, and Seven,

the PSR recommended a Guidelines offense level of 40, premised

on a drug quantity offense level of 38, see USSG § 2D1.1(c)(1),

and a two-level increase for possession of a dangerous weapon,

id. § 2D1.1(b)(1). 4          The PSR then assigned a six-level official

victim enhancement, id. § 3A1.2(c)(1); a four-level aggravating

role enhancement for being an organizer or leader in criminal

activity,      id.    § 3B1.1(a);          and    a     two-level    enhancement       for

obstruction     of    justice,       id.    § 3C1.1.           Accordingly,       Prosise’s

total     offense     level    was    52.         The    PSR     initially    calculated

Prosise’s criminal history category as IV, but elevated that

category to VI because of Prosise’s status as a career offender

under      Guidelines    section       4B1.1.           The     resulting     Guidelines

sentence was life imprisonment — the sentence for any defendant

with an offense level of 43 or more.                    With respect to Count Two,


      4
       The PSR applied the 2007 edition of the Guidelines and the
May 1, 2008 supplement thereto.



                                             11
the PSR recognized that the applicable Guidelines sentence was a

sixty-month       consecutive          term    of   imprisonment,      as    mandated      by

statute.        See 18 U.S.C. § 924(c)(1)(A), (D); USSG § 2K2.4(b).

After overruling Prosise’s objections to the PSR and denying his

motion for a downward departure, the district court imposed the

total sentence, as prescribed by the Guidelines, of life plus

sixty months’ imprisonment. 5

       On     appeal,        Prosise      challenges         the     district       court’s

application       of        the    Guidelines        in     four     respects.            More

specifically,         he     first      contends      that     the    court       erred    in

calculating drug quantity, resulting in an offense level of 38,

rather than what he asserts is the proper level of 34.                              Prosise

further maintains that the court erred by imposing the two-level

dangerous        weapon          enhancement,        the     four-level           leadership

enhancement,          and        the    two-level          obstruction       of     justice

enhancement.          Importantly, Prosise preserved his objections to

these purported errors at the time of sentencing.                           Nevertheless,

because       Prosise      had     a   total    offense      level    of     52    and    the

Guidelines sentence is life for level 43 or more, any errors

were       harmless   unless       they   collectively        involve      the     incorrect


       5
       The total sentence was comprised of concurrent terms of
life on Count One, 120 months on Count Three, 96 months on Count
Four, and 96 months on Count Seven, and the consecutive term of
60 months on Count Two.



                                               12
application of at least ten levels.                 See United States v. Lynn,

__ F.3d __, No. 08-5125(L), slip op. at 6 (4th Cir. Jan. 28,

2010) (recognizing, in wake of Gall, that properly preserved

objections to procedural sentencing errors can be subject to

harmlessness      review     pursuant       to     Federal       Rule     of    Criminal

Procedure 52(a)); see also Williams v. United States, 503 U.S.

193,   203     (1992)   (observing,     pre-Gall,         that    misapplication        of

Guidelines is harmless under Rule 52(a) if “the error did not

affect the district court’s selection of the sentence imposed”).

       In summary, we conclude that the district court erroneously

applied the two-level dangerous weapon enhancement, but that the

court properly imposed the four-level leadership and the two-

level obstruction of justice enhancements.                    Accordingly, we need

not    reach    Prosise’s    contention          that   the      court    should     have

assigned him a drug quantity offense level of 34, rather than

38.    Even if Prosise is correct on that issue, his total offense

level would yet be 46, rendering any error in the drug quantity

calculation harmless.

       First of all, the Government concedes error with respect to

the two-level dangerous weapon enhancement, and we agree.                             The

district       court    imposed    this     enhancement,          under        Guidelines

section 2D1.1(b)(1), in calculating Prosise’s sentence on the

combined       counts     that    included        Count     One,        conspiracy      to

distribute      cocaine    and    crack,    in    contravention          of    21   U.S.C.

                                           13
§ 846.      Significantly,          Count       One    was     the        offense    underlying

Count Two, possession of a firearm in furtherance of a drug

trafficking     crime,      in   violation           of   18       U.S.C.       § 924(c)(1)(A).

And,     Prosise      received        a    consecutive              sixty-month          term    of

imprisonment on Count Two, as prescribed by Guidelines section

2K2.4(b) and mandated by statute.                         The Application Notes for

section     2K2.4     instruct        that,      “[i]f         a        sentence    under       this

guideline      is   imposed      in   conjunction            with        a    sentence     for   an

underlying      offense,         do       not        apply     any           specific      offense

characteristic        for     possession             . . .         of     [a]    firearm        when

determining     the    sentence       for       the    underlying             offense.”         USSG

§ 2K2.4 cmt. n.4.           Furthermore, the Application Notes instruct

“not [to] apply any weapon enhancement in the guideline for the

underlying offense . . . if . . . in an ongoing drug trafficking

offense, the defendant possessed a firearm other than the one

for which the defendant was convicted under 18 U.S.C. § 924(c).”

Id.    As such, the dangerous weapon enhancement was improperly

applied to Prosise with respect to his Guidelines sentence on

Count One, whether it was imposed for possession of the same or

a different firearm as that involved in Count Two.                                  Cf. United

States    v.    Reevey,       364     F.3d       151,        158-59          (4th   Cir.     2004)

(recognizing        that    defendant           convicted           and       sentenced     under

§ 924(c) was not subject to threat-of-death enhancement for use



                                                14
of   firearm      during      underlying      carjacking          offense         (citing         USSG

§ 2K2.4 cmt. n.4)).

       As     for     the       four-level         leadership         enhancement,                such

enhancement         applies     “[i]f   the      defendant        was      an     organizer         or

leader      of    a   criminal      activity        that      involved          five     or       more

participants or was otherwise extensive.”                         USSG § 3B1.1(a); see

United States v. Jones, 356 F.3d 529, 537-38 (4th Cir. 2004).

According to the Application Notes for section 3B1.1, to qualify

for the leadership enhancement, the defendant must have been the

organizer or leader “of one or more other participants” — with a

“participant”         being     defined     as     “a    person       who       is     criminally

responsible         for   the     commission       of   the    offense,”          even       if    not

convicted.        USSG § 3B1.1 cmt. nn.1-2.                The district court agreed

with    the      probation      officer     that        Prosise      was     the       leader       or

organizer of “multiple” participants, J.A. 538, including two

informants who testified at trial that Prosise “directed [them]

to   transport        and     distribute       narcotics,”           id.     at      566.          The

informants’         testimony      indeed    reflects         that    Prosise          was    their

organizer or leader in the Count One conspiracy, as well as that

the conspiracy involved five or more participants.                                Accordingly,

the court did not err by imposing the leadership enhancement.

       Finally, the two-level obstruction of justice enhancement

is     applicable         under     Guidelines          section       3C1.1          where        “the

defendant        willfully        obstructed       or    impeded,       or       attempted          to

                                              15
obstruct or impede, the administration of justice with respect

to the investigation, prosecution, or sentencing of the instant

offense of conviction.”                  The Application Notes for section 3C1.1

specify,       however,          that    if       the    obstructive      “conduct       occurred

contemporaneously with arrest (e.g., attempting to swallow or

throw    away    a        controlled       substance),            it   shall     not,    standing

alone,    be    sufficient          to     warrant         [the    enhancement]         unless   it

resulted in a material hindrance to the official investigation

or prosecution of the instance offense or the sentencing of the

offender.”       USSG § 3C1.1 cmt. n.4(d).                         The PSR recommended the

obstruction          of    justice        enhancement           based     on    (1)     Prosise’s

destruction of cocaine by throwing it into the pond at the time

of his arrest, and (2) his subsequent directive to his mother

and brother to distribute crack, hidden in a vehicle, that had

escaped    detection             during       a    post-arrest         police    search.         The

district court found “that the defendant’s conduct in both of

these    instances          constituted            obstructive         behavior”      and,   thus,

imposed the enhancement.                  J.A. 538.

     In    challenging             the     obstruction            of   justice     enhancement,

Prosise contends that “there was no evidence to suggest that

[his]    request          that    his     mother         and   brother    sell     undiscovered

narcotics was intended to or did obstruct law enforcement in any

manner,”       Br.    of     Appellant            16,    and   that     his     destruction       of

evidence in the pond at the time of his arrest, standing alone,

                                                    16
is   an   insufficient   basis    for    the   enhancement.   The      district

court did not clearly err, however, in finding that Prosise’s

directive     to   his   mother   and    brother    constituted    a    willful

obstruction of justice (even if there was another motive behind

the directive, such as profiting from the sale of the drugs).

Cf. United States v. Kiulin, 360 F.3d 456, 460-61 (4th Cir.

2004) (affirming obstruction of justice enhancement where court

inferred from recorded conversation that defendant agreed to lie

to   police   to   exonerate   accomplice).        Consequently,       Prosise’s

destruction of cocaine did not “stand alone” as reason for the

enhancement, which was properly applied.



                                        IV.

      Pursuant to the foregoing, we affirm the judgment of the

district court.

                                                                       AFFIRMED




                                        17
