                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4556


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

VINCENT ELOYD HILL,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (7:10-cr-00053-BO-1)


Argued:   May 18, 2012                    Decided:   July 17, 2012


Before KEENAN, WYNN, and FLOYD, Circuit Judges.


Affirmed by unpublished opinion. Judge Wynn wrote the opinion,
in which Judge Keenan and Judge Floyd concurred.


ARGUED: John Keating Wiles, CHESHIRE, PARKER, SCHNEIDER, BRYAN &
VITALE, Raleigh, North Carolina, for Appellant. Yvonne Victoria
Watford-McKinney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.     ON BRIEF: Thomas G. Walker,
United States Attorney, Jennifer P. May-Parker, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh,
North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
WYNN, Circuit Judge:

      Vincent      Eloyd   Hill   appeals     his     jury     conviction    of

conspiracy to possess heroin and marijuana with the intent to

distribute, possession of a firearm in furtherance of a drug

trafficking crime, possession of a firearm as a convicted felon,

and aiding and abetting the possession of heroin and marijuana

with intent to distribute; and his sentence of 240 months, a 60-

month upward deviation from the advisory Guidelines range.                  Hill

argues on appeal that the district court (1) erred by denying

his motion to suppress evidence seized from a traffic stop; (2)

abused its discretion by denying a motion to withdraw filed by

his court-appointed counsel; and (3) unreasonably imposed a 60-

month upward variance on his sentence.               We find no error and

therefore affirm the conviction and sentence.



                                    I.

                                    A.

      While driving on Route 74/76 toward Leland, North Carolina

on March 17, 2009, Officer William Kozak of the Leland Police

Department observed a green Chevrolet Tahoe repeatedly drift out

of   its   lane.     Pulling   alongside    the     vehicle,   Officer   Kozak

noticed that the driver was sitting very low in the seat and

appeared to be falling asleep.           He also observed that there was

a passenger in the car who appeared to be asleep.               Officer Kozak

                                     2
contacted     a     patrol   officer,         Officer      Aaron     Naughton,        and

requested   that      Officer   Naughton        pull      the    Tahoe   over    if    it

continued to drift out of its lane.                    Officer Naughton did so,

and Officer Kozak approached the car to speak with the driver.

      When Officer Kozak approached the driver’s side of the car,

the   driver,      Hill,   refused   to       look   at    the    officer,      instead

staring straight ahead.         Officer Kozak informed Hill that he had

been stopped because he had repeatedly drifted into the left

lane.   Officer Kozak asked Hill for his license and registration

and observed that Hill was extremely nervous.                     He described Hill

as having a visibly pounding heart and hands that were shaking

uncontrollably.        At this point, Officer Kozak suspected that

“his actions were beyond the scope of a normal traffic stop.”

J.A. 145.         He asked Hill to step out of the vehicle.                        Hill

refused, and Officer Kozak asked a second time.                           Hill again

refused, then Officer Kozak asked again, opened the door of the

vehicle, and told Hill to step out of the vehicle.                              At this

point, Hill exited the vehicle.

      Officer Kozak separately questioned Hill and his passenger,

Nigel Hood.       When questioned, Hill had a “broken speech pattern”

and continually shifted his weight back and forth.                         J.A. 146.

When questioned about whether there were drugs in the vehicle,

Hill looked directly at Officer Kozak and denied that he had

marijuana, cocaine, or methamphetamine in the vehicle.                             When

                                          3
asked    whether    there    was   any   heroin   in    the    car,    however,   he

dropped his head and looked at the ground, answering, “No, I

don’t do heroin.”           J.A. 147.        Hill and Hood gave conflicting

stories about the reason for their trip.                 Hood informed Officer

Kozak that they went to pick up a radiator and a fan belt,

whereas Hill indicated that he had been picking up a muffler.

There were no auto parts visible in the car.

     Shortly       thereafter,     Officer     Kozak   called    for    assistance

from the Brunswick County Canine Unit.                 The canine unit arrived

between 30 and 45 minutes later, and a dog alerted the police to

the presence of narcotics.           A search of the vehicle revealed a

ten-bag bundle containing 0.3 grams of heroin and a handgun.

Hill also had $3,135 in cash on his person.                   At the time of his

arrest, after being read his Miranda rights, Hill admitted to

the officers that the drugs belonged to him and that Hood had

“nothing to do with” them.          J.A. 151.1




     1
       A second search occurred in November 2009, eight months
after the incident in question.       A trooper pulled over a
speeding vehicle in which Hill was a passenger. The car smelled
of marijuana, and when searched by consent, marijuana and heroin
were found.   While Hill moved to suppress this search as well,
he does not challenge the district court’s ruling against him in
this appeal.



                                         4
                                                  B.

       Hill was charged, on November 24, 2010, in five counts:

conspiracy to possess with the intent to distribute 100 grams or

more    of     heroin         and    a    quantity        of    marijuana          (“Count    1”);

possession with the intent to distribute a quantity of heroin

(“Count 2”); possession of a firearm in furtherance of a drug

trafficking        crime       (“Count     3”);        possession        of   a    firearm    as   a

convicted felon (“Count 4”); and possession with the intent to

distribute a quantity of heroin and a quantity of marijuana and

aiding and abetting (“Count 5”).

       Before      trial,       Hill      filed    a     motion     to    suppress        evidence

seized on March 17, 2009 from Hill’s Chevrolet Tahoe.                                         Hill

asserted       that      he    was       subjected       to    an    unreasonable         seizure

because      the    original         traffic      stop        was   unreasonably         extended

while Officer Kozak waited for the canine unit to arrive.                                          In

its response, the Government argued that the law enforcement

officer had a reasonable suspicion and probable cause to stop

the Chevrolet Tahoe and had a reasonable suspicion in further

detaining Hill beyond the original traffic stop.

       Based       on    the    written      submissions            by    the      parties,    the

district court held that the March 17, 2009 search was valid and

denied Hill’s motion to suppress.                       The district court found that

the    “traffic         stop    was      valid    as     the    officer           had   reasonable



                                                  5
suspicion      to    delay     the    Defendant       while    waiting      for   canine

assistance.”        J.A. 71.

      Hill’s        trial    commenced       on     February     7,    2011.         After

testimony from the police officers who conducted the searches,

as well as from two government witnesses who testified about

Hill’s drug dealing and trafficking activities, including David

Kirton, a heroine dealer, who testified that Hill sold heroin

and that he had purchased more than 400 grams of heroin from

Hill, Hill moved for a judgment of acquittal.                              The district

court denied the motion.             Thereafter, Hill testified that he did

not know Kirton and that he had never sold drugs to Kirton.

Hill further testified that, before the traffic stop on March

17,   2009,    he     believed       his    felony    drug     possession      had    been

expunged and, therefore, he was not prohibited from possession

of    firearms.         On   rebuttal,        the    Government       introduced      the

testimony of a long-time drug dealer, Billy Dunlap, who had been

in    jail    with    Hill     during       the    pendency    of     trial.      Dunlap

testified that Hill admitted to him that he was a drug dealer

and that they had discussed how they packaged, cut, and sold

drugs.

      Following       the    close     of    the    evidence,       Hill   renewed     his

motion for judgment of acquittal, which was also denied by the

district court.         On February 9, 2011, the jury convicted Hill on

all five counts.

                                              6
                                            C.

       Before sentencing, around March ll, 2011, defense counsel

received   a   handwritten        letter        from    Hill    requesting     that   he

withdraw as Hill’s counsel.                The letter explained that Hill’s

counsel had failed to “investigat[e] . . . all of [his] charges”

and to “support” him during the trial.                   J.A. 338.       On March 14,

2011, Hill’s counsel filed a motion to withdraw.                        At the hearing

on the motion, defense counsel explained that Hill’s complaints

were   based   on    his      performance       as   trial     counsel   and   that   he

believed Hill could raise those issues on appeal or in a habeas

proceeding.       Hill’s counsel noted that he discussed this with

Hill, along with the fact that there would be a delay if counsel

were   substituted       at    this   point.         However,    Hill    continued    to

express    that     he     wanted     a    new       attorney.      Hill’s     counsel

nevertheless stated that he could continue to proceed as Hill’s

attorney, that he knew the facts of the case better than anyone

else, and that he thus should not be substituted for new counsel

prior to sentencing.

       In response—and without questioning Hill—the district court

stated, “I think that’s a very responsible and professionally

correct and honest way to present it,” and that it would be

“counterproductive to indulge the Defendant at this point before

sentencing.”        J.A. 341-42.          In denying the motion to withdraw,

the district court found that “no other lawyer would be better

                                            7
able to represent [Hill’s] interest at sentencing because no

other lawyer went through the trial and is closely familiar with

all of the nuances of the case.”                      J.A. 342.     The district court

further found that there was no professional or ethical conflict

and   that     Hill       had   failed      to       show    that   counsel    should    be

substituted.



                                                D.

      Hill’s presentence investigation report (“PSR”) prepared by

his probation officer set forth Hill’s criminal history that

consisted      of     a     felony       conviction         of   knowingly/purposefully

making    an    explosion;          a    felony       conviction     of    possession    of

hollow-nose bullets; a misdemeanor theft conviction; a felony

conviction      of    possession          of    a     controlled     substance;    and   a

misdemeanor conviction of loitering to obtain/sell a controlled

dangerous substance in public, for a total of 2 criminal history

points.      The PSR placed Hill at a total offense level of 28 with

a Guidelines range sentence of 120 months on Count 1 (based on

the statutory minimum), 87 to 108 months on Counts 2, 4, and 5,

and 60 months on Count 3.

      At the sentencing hearing, Hill’s counsel raised several

objections     to     the    PSR,       which    were   overruled     by    the   district

court.    The district court also found that an upward variance of

Hill’s sentence was warranted under the circumstances because

                                                 8
Hill’s testimony at trial had been “completely dishonest and not

anything    close   to    approaching       the    truth.”        J.A.   351.    The

district court found that Hill was unrepentant and disrespectful

of the trial process, and that as an “armed repeat offender,”

was likely to relapse into “drug trafficking and violent crime

in the future” unless punished more severely.                      J.A. 353.     The

district    court    noted     that     the       sentence   would       give   Hill

opportunities for educational and vocational training.                          As a

result,    the   district    court    sentenced      Hill    to    concurrent    180

month sentences on Counts 1, 2, and 5, which constituted a 60-

month variance from the advisory range.               The district court also

sentenced Hill to a term of imprisonment of 120 months on Count

1 to be served concurrently with the sentence imposed on Counts

1, 2 and 5, and to a term of imprisonment of 60 months on Count

3, to be served consecutively.          Hill timely filed this appeal.



                                       II.

                                        A.

      On appeal, Hill contends that the district court erred when

it denied his motion to suppress the evidence seized in the

March 17, 2009 traffic stop because he was detained longer than

was   reasonably         necessary    to      diligently      investigate        the

justification for the stop.          We disagree.



                                        9
     In reviewing the district court’s denial of Hill’s motion

to suppress, “we review questions of law de novo and findings of

. . . fact and reasonable inferences drawn from those findings

for clear error.”        United States v. Holmes, 376 F.3d 270, 273

(4th Cir. 2004) (quotation marks and citation omitted).            Absent

clear error, we consider evidence presented at the suppression

hearing “in the light most favorable to the government.”          Id.

     While   a    police    officer   conducts   the   normal   activities

associated with a traffic stop, such as “requesting a driver's

license and vehicle registration, running a computer check, and

issuing a ticket,” the officer may ask questions or undertake

additional actions that are not “solely and exclusively focused

on the purpose of that detention.”          United States v. Digiovanni,

650 F.3d 498, 507 (4th Cir. 2011) (citation omitted).

     “If a police officer seeks to prolong a traffic stop to

allow for investigation into a matter outside the scope of the

initial   stop,     he     must   possess    reasonable   suspicion”    of

additional criminal activity.         Id.    While there is no “precise

articulation of what constitutes reasonable suspicion, . . . a

police officer must offer specific and articulable facts that

demonstrate at least a minimal level of objective justification

for the belief that criminal activity is afoot.”           United States

v. Branch, 537 F.3d 328, 336 (4th Cir. 2008) (internal quotation

marks and citation omitted).          Officers may use their “training

                                      10
and     expertise”         to     identify       sets    of       factors         which    are

“individually quite consistent with innocent travel” yet “taken

together, produce a reasonable suspicion of criminal activity.”

Id. at 336-37 (internal quotation marks and citation omitted).

      In      examining          Officer     Kozak’s        conduct,         it     is     well

established         that     a    law   enforcement      officer        is    “objectively

justified” in asking a person detained for a traffic violation

to “get out of the car.”                   Ohio v. Robinette, 519 U.S. 33, 40

(1996)     (citing     Pennsylvania         v.     Mimms,    34    U.S.      106,    111    n.6

(1977) (“[O]nce a motor vehicle has been lawfully detained for a

traffic violation, the police officers may order the driver to

get out of the vehicle without violating the Fourth Amendment’s

proscription          of      unreasonable         searches         and      seizures.”)).

Therefore, in asking Hill to get out of the Tahoe, Officer Kozak

had     not        unconstitutionally            extended         the     traffic         stop.

Similarly, Officer Kozak’s questioning of Hill did not violate

the     Fourth       Amendment’s           proscription       against         unreasonable

searches and seizures.              Although his questions were not strictly

related       to    Hill’s       alleged    traffic     violation,        the       questions

lasted only a few minutes and thus did not measurably extend the

stop.

      By    the     time     Officer       Kozak    began     questioning         Hood,    and

certainly by the time he called for a canine unit, we conclude

that he had a reasonable suspicion of criminal activity.                                   From

                                              11
the initiation of the stop, Hill acted in a manner potentially

consistent with criminal activity when he shook uncontrollably,

stared      straight       ahead    without    looking     at       Officer      Kozak,    and

refused to cooperate with lawful requests to exit the vehicle.

Within       a    few     seconds    of     questioning,       he    appeared      nervous,

speaking with a broken speech pattern and shifting his weight as

though nervous.            Within a few minutes, he looked at the ground

when questioned about whether he was transporting heroin and

gave    an       inconsistent       statement       from   that      of    his    passenger

regarding what type of part they had purchased.                            “[N]ervous and

evasive       behavior”      is     relevant       to   establishing        a    reasonable

suspicion of criminal activity, Branch, 537 U.S. at 338, as are

false statements, id. at n. 1 (citation omitted).                           Thus, even if

Officer      Kozak      extended     the     traffic    stop     beyond     its    original

purpose, he did so with “reasonable suspicion” that Hill was

engaged in criminal activity.                See id.

       To        support    his     contention      that   the       traffic      stop     was

unreasonably         extended,       Hill    relies      heavily      on    this    Court’s

opinion in Digiovanni, in which we affirmed the district court’s

grant of the defendant’s motion to suppress on the grounds that

the    police       had    unreasonably       extended     the      traffic      stop     and,

moreover, that the police lacked reasonable suspicion to turn

the traffic stop into a drug investigation.                           650 F.3d at 515.

Digiovanni involved a defendant who was driving a rental car on

                                              12
a   road   frequented     by    drug    traffickers,         and    only       appeared   to

“tremble”      slightly        when     handing           over     his     license        and

registration.      Digiovanni, 650 F.3d at 512.                     In this case, by

contrast,      Hill      exhibited,          among        other      things,       extreme

nervousness and gave an implausible story that was contradicted

by his passenger.          Thus, Digiovanni is clearly distinguishable

from    this   case.       Accordingly,            the    district       court    properly

concluded that, under the totality of the circumstances, the

officer’s      detention        of    Hill        was    supported       by     reasonable

suspicion.



                                             B.

       Next,   Hill    asserts       that    the        district    court      abused     its

discretion when it denied the motion to withdraw filed by Hill’s

defense counsel.       We disagree.

       We review the district court’s denial of defense counsel’s

motion to withdraw for abuse of discretion.                          United States v.

Hanley, 974 F.2d 14, 17 (4th Cir. 1992).                           In evaluating the

defendant’s     claim,     we    consider:         “(1)    the     timeliness      of     the

motion; (2) the adequacy of the district court’s inquiry into

the defendant’s complaint; and (3) whether the attorney/client

conflict was so great that it had resulted in total lack of

communication preventing an adequate defense.”                           Id.     We “weigh

these factors against the trial court’s interest in the orderly

                                             13
administration of justice.”                 United States v. Reevey, 364 F.3d

151, 157 (4th Cir. 2004) (citation omitted).

      Here, Hill attempts to emphasize the second factor, i.e.,

the     adequacy   of    the        district         court’s     inquiry,    because    the

district court did not question Hill about his motivations for

seeking     new    counsel          and    instead       relied     on     his    counsel’s

representations         of    the     situation.           Hill        asserts   that   the

district court abused its discretion by declining to give him an

opportunity to explain in person his reasons for requesting new

counsel.      At   the       hearing       on    the    motion    to    withdraw,    Hill’s

counsel    explained         that    he    had       discussed    the    complaints     with

Hill.      During their discussion, Hill’s counsel informed Hill

that any concerns about the trial performance could be raised in

a habeas proceeding or on appeal.                       Hill’s counsel explained to

the district court that he believed he could represent Hill at

the sentencing hearing because he was thoroughly familiar with

the facts of the case.                    Based on this inquiry, the district

court denied the motion.

      An abuse of discretion does not occur simply because “the

district court’s questioning” as to a defendant’s reasons for

requesting new counsel and the “level of communication between

him and [his lawyer] could have been more probing.”                              See United

States v. Hagen, No. 09-5096, 2012 WL 764429, at *9 (4th Cir.

Mar. 12, 2012) (unpublished).                     We agree with Hill that it is

                                                14
better practice for the district court to ask a defendant to

explain his reasons for requesting new counsel at a hearing on

such a motion.             Nonetheless, failure to do so does not rise to

an     abuse    of     discretion       if    the     district     court       sufficiently

examines the factual record and alleged bases for requesting new

counsel.        See United States v. Perez, 661 F.3d 189, 192 (4th

Cir. 2011) (holding that the district court did not abuse its

discretion       by     denying      the     defendant’s        motion     to     substitute

counsel between trial and sentencing without a hearing); see

also    Reevey,       364    F.3d    at    157      (deeming    the     district     court’s

inquiry        adequate       because        “[t]he     court     was     informed         that

[defendant’s] counsel had spent an extensive amount of time with

[him] discussing various aspects of the case [and t]he court

also    ensured       that     his     lawyers       were   prepared       [for      upcoming

proceedings]”).

       Here,        Hill’s     counsel        indicated        that      all    of     Hill’s

complaints involved counsel’s trial performance, and that none

of these issues would affect his ability to represent Hill at

sentencing.            The    district        court    found      that    there      was    no

“professional         or     ethical      conflict”     that    would     prevent      Hill’s

counsel     from      adequately        representing        him    at     the   sentencing

hearing.        J.A. 342.         Hill’s letter explaining his reasons for

requesting       new       counsel     did    not     allege    that      there      was   any

conflict       or     breakdown      in      communication.           Moreover,        Hill’s

                                               15
counsel indicated that he and Hill had discussed the issues Hill

had with counsel’s trial performance shortly before the hearing

on   the    motion    to    withdraw.        Subsequently,       at    the    sentencing

hearing, counsel indicated that he had explained the PSR and its

implications to Hill.               Finally, the court properly considered

that       substitution       of     counsel        might      delay        the     orderly

administration of justice.               The court found that delay could

result from substitution of counsel because Hill’s trial counsel

had “an absolute thorough knowledge” of the “nuances of this

case.”      J.A. 342.

       In   sum,   the      statements    made      by   the   district       court    when

denying the motion reflect that it thoughtfully considered the

reasons Hill sought new counsel, as well as the potential delay

to the proceedings and other appropriate factors.                                 Thus, the

district     court    did     not    abuse    its    discretion        in    denying    the

motion to withdraw.



                                             C.
       Finally,      Hill    asserts     that     the    district      court’s       upward

variance of 60 months in Hill’s sentence was unreasonable.                               We

disagree.

       “We review any sentence, whether inside, just outside, or

significantly outside the Guidelines range, under a deferential

abuse-of-discretion standard.”                United States v. King, 673 F.3d


                                             16
274, 283 (4th Cir. 2012) (citation omitted).                       We first review

for “significant procedural error.”                United States v. Evans, 526

F.3d 155, 162 (4th Cir. 2008).                In choosing a sentence for a

defendant, the district court must conduct an “individualized

assessment of the facts presented” and “adequately explain the

chosen sentence—including an explanation for any deviation from

the Guidelines range.” King, 673 F.3d at 283 (quotation marks

and   citation   omitted).         Second,        we    review    the    “substantive

reasonableness    of   the   sentence.”                Evans,    526    F.3d   at     161

(citation omitted).       In this regard, we defer substantially to

the   district   court.      See    id.      at    162    (“[T]he       fact   that   an

appellate court might reasonably have concluded that a different

sentence was appropriate is insufficient to justify reversal.”

(quotation marks and citation omitted)).

      Hill asserts that the upward variance of 60 months punishes

him four times more harshly than he would have been, had the

“obstruction of justice” guideline been applied.                        Appellant Br.

at    26.    Nevertheless,         he   acknowledges             that    “perhaps     an

adjustment to [his] advisory sentencing range was warranted.”

Id. at 27 (citing U.S.S.G. § 3C1.1).                     Even assuming that the

district court did fail to properly look to U.S.S.G. § 3C1.1 to

address Hill’s false testimony, any such procedural error is

harmless, because an “upward variance based on the [18 U.S.C.] §



                                        17
3553(a)    factors   justifie[s]   the   sentence   imposed.”     United

States v. Rivera–Santana, 668 F.3d 95, 104 (4th Cir. 2012).

     Here, in imposing the upward variance, the district court

supported its sentence with reasons based on the relevant 18

U.S.C. § 3553(a) factors.2      Specifically, as the district court

pointed out:

     The offense is a serious offense.    He has shown no
     respect for the law.    The punishment at that level
     [180 month sentence in Counts 1, 2, and 5] the Court
     finds to be a just amount . . . given his age and his

     2
         18 U.S.C. § 3553 (a) states in relevant part:

     Factors to be considered in imposing a sentence.--The court
shall impose a sentence sufficient, but not greater than
necessary, to comply with the purposes set forth in paragraph
The court, in determining the particular sentence to be imposed,
shall consider--

     (1)    the nature and circumstances of the offense and the
            history and characteristics of the defendant;

     (2)    the need for the sentence imposed--

            (A)   to reflect the seriousness of the offense, to
                  promote respect for the law, and to provide just
                  punishment for the offense;

            (B)   to   afford   adequate    deterrence    to    criminal
                  conduct;

            (C)   to protect the public from further crimes of the
                  defendant; [and]

            (D)   to provide the defendant with needed educational
                  or vocational training, medical care, or other
                  correctional treatment in the most effective
                  manner . . . .




                                   18
       chronic criminal behavior and lack of reform shows,
       under number 2, that this would be an adequate
       deterrent. . . . under number 3, his repeat offender
       history shows that the public needs to be further
       protected from his crimes.

J.A. 355.       The district court also found that Hill showed “great

disrespect” for the trial process by going “out of his way to

obstruct justice by testifying falsely on material facts to the

jury.”     J.A. 353.      The district court further noted that Hill

would have educational and vocational opportunities in prison

during his sentence.

       In sum, we find the district court’s determination was both

procedurally and substantively reasonable.                The district court

took     into   account    the    seriousness    of     Hill’s   offense,    his

criminal history, his disrespect for the trial process, and his

likelihood      of   recidivism   in   its   decision    to   grant   an   upward

variance.       Accordingly, because we must “give due deference to

the [d]istrict [c]ourt’s reasoned and reasonable decision that

the § 3553(a) factors, on the whole, justified the sentence” of

240 months of imprisonment, we hold that district court did not

abuse its discretion.        Gall v. United States, 552 U.S. 38, 59–60

(2007).




                                       19
                            III.

     For the foregoing reasons, we affirm the decision of the

district court.

                                                     AFFIRMED




                             20
