                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                              No. 01-4442
RICHARD EARL ALLEN,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock, Jr., District Judge.
                            (CR-00-380)

                  Submitted: December 20, 2001

                      Decided: January 10, 2002

   Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                             COUNSEL

Danny T. Ferguson, Winston-Salem, North Carolina, for Appellant.
Benjamin H. White, Jr., United States Attorney, Robert A.J. Lang,
Assistant United States Attorney, Winston-Salem, North Carolina, for
Appellee.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2                       UNITED STATES v. ALLEN
                               OPINION

PER CURIAM:

   Richard Earl Allen, a convicted felon, was charged in Count One
of an indictment with possession of a Glock .44 caliber semi-
automatic pistol on or about January 23, 1999, in violation of 18
U.S.C.A. § 922(g)(l) (West 2000). Count Two charged Allen with
possessing a Charter Arms .38 caliber revolver on or about March 28,
2000, also in violation of § 922(g)(l). Following Allen’s conviction by
a jury, the district court determined that Allen’s criminal history cate-
gory did not adequately reflect the seriousness of his criminal past or
the likelihood of recidivism. The court accordingly departed upward
from Allen’s guideline range and sentenced him to 120 months on
Count One and 115 months on Count Two. The sentences run consec-
utively. Allen appeals both his convictions and sentence.

                                    I

   Allen first contends that the district court erred when it denied his
motion to suppress all evidence seized during a traffic stop on January
23, 1999. When reviewing a ruling on a motion to suppress, we
review the district court’s factual findings for clear error and its legal
conclusions de novo. Ornelas v. United States, 517 U.S. 690, 699
(1996); United States v. Rusher, 966 F.2d 868, 873 (4th Cir. 1992).
If the district court denies a defendant’s suppression motion, the evi-
dence is viewed in the light most favorable to the United States.
United States v. Seidman, 156 F.3d 542, 547 (4th Cir. 1998).

   Here, Winston-Salem police officer M. G. Bennett testified at the
suppression hearing that he was in the vicinity of a bar when he heard
several gunshots. Officer Bennett arrived at the bar within ten seconds
of hearing the shots, and an unidentified male told him that the occu-
pants of a grey Mustang had fired shots at customers of the bar. Ben-
nett saw a car driving away and asked if that were the car. The man
said that it was, and Bennett began following the car (a Mustang),
which was the only one moving on the street. Once he realized that
his backup, Officer Livingston, was behind him, Bennett stopped the
car, which Karen Conrad was driving.
                       UNITED STATES v. ALLEN                        3
  Bennett frisked Conrad, and another officer frisked her passenger,
Allen. Bennett then looked inside the car. He saw a spent shell casing
on the passenger floorboard. When he reached under the passenger
seat, Bennett found a Glock .40 caliber gun. Once Allen realized that
Bennett had found the gun, he became nervous and tried to escape.
He was subdued and arrested.

   Officer Livingston testified that he was also in the area and heard
four or five shots. He saw a car leaving the scene and believed he saw
the passenger’s hand outside the car window.

   We conclude that the traffic stop was fully justified under Terry v.
Ohio, 392 U.S. 1 (1968), based on the officers’ reasonable suspicion
that criminal activity was afoot and that persons in the car might be
armed and dangerous. Both Livingston and Bennett heard shots, and
Bennett was told that the shots came from the car that was leaving the
area. Further, under Maryland v. Wilson, 519 U.S. 408, 411 (1997),
and Michigan v. Long, 463 U.S. 1032, 1049 (1983), there was no
Fourth Amendment violation in requiring Allen to step out of the car
to be frisked or in conducting a search of the car’s passenger compart-
ment, where a gun might have been secreted. Accordingly, the district
court properly denied the motion to suppress.

                                  II

   Allen next claims that the district court erred when it denied his
Fed. R. Crim. P. 29 motion for judgment of acquittal on both counts
of the indictment. We review de novo the denial of a Rule 29 motion.
United States v. Romer, 148 F.3d 359, 364 (4th Cir. 1998). When, as
here, the motion is based on insufficiency of the evidence, the rele-
vant question is whether the evidence, viewed in the light most favor-
able to the Government, was sufficient for a rational trier of fact to
have found the essential elements of the crimes beyond a reasonable
doubt. Id.; United States v. Burgos, 94 F.3d 849, 862-63 (4th Cir.
1996).

  With respect to Count One, the trial testimony of Officers Bennett
and Livingston was virtually identical to their testimony at the sup-
pression hearing. Additionally, Rory Duke Skipper testified that the
Glock was his and that he had loaned it to Allen in January 1999 to
4                      UNITED STATES v. ALLEN
use for target practice. Skipper testified that Allen had not returned
the gun to him. Timothy Lindsey, who was in jail with Allen, testified
that Allen told him that the police had stopped Allen and his girlfriend
and found a gun belonging to someone else under Allen’s seat. It was
stipulated that Allen was a convicted felon and that the gun was oper-
ational and had traveled in interstate commerce.

   The evidence on Count Two was equally sufficient to convict
Allen. Officer Pattisol ran a license check on a Cadillac that passed
him. The tags came back to a Nissan, not a Cadillac. Pattisol and Offi-
cer Wilson followed the Cadillac. Allen, who was driving, bailed out
of the car and fled. Officer Wilson found him hiding next to an air
conditioning unit. The officers discovered the firearm in question
under Allen’s right leg. Lindsey testified that Allen told him that he
jumped out of the car, fled, and had time to "get the gun off of him,"
but that the police found the gun near him. The gun was fully opera-
tional and had traveled in interstate commerce.

   On this evidence, the evidence was sufficient for a rational trier of
fact to have found all the elements of the charged crimes beyond a
reasonable doubt. The district court properly denied the Rule 29
motion.

                                  III

   Allen complains that Bennett was allowed to testify about what the
eyewitness at the bar told him. The statement was allowed not for the
truth of what the unidentified man told Bennett, but to show why
Bennett reacted as he did after speaking to the man. The district court
instructed the jury that this was the only purpose for which it was to
consider the testimony about the man’s statement. Under these cir-
cumstances, admission of the evidence was not an abuse of discretion.
See United States v. Obi, 239 F.3d 662, 668 (4th Cir. 2001).

                                  IV

   Allen’s base offense level was found to be 24 because of two previ-
ous felony convictions. U.S. Sentencing Guidelines Manual
§ 2K2.1(a)(2) (2000). He contends that a 1994 North Carolina convic-
                        UNITED STATES v. ALLEN                         5
tion for assault on a government official did not constitute a "crime
of violence" and that he therefore only had one qualifying predicate
felony conviction (for a controlled substance offense). When Allen
was convicted of assault, the maximum punishment for the offense
was two years. Subsequently, the North Carolina legislature reduced
the punishment to a maximum of 150 days. Allen would have us look
to the law in effect at the time of sentencing for his § 922(g)(l) viola-
tions, rather than that applicable at the time of his 1994 state convic-
tion, to determine if the assault was a crime of violence. Our decision
in United States v. Johnson, 114 F.3d 435, 445 (4th Cir. 1997), con-
trols, and we reject Allen’s argument.

                                   V

   Finally, Allen contests the district court’s decision to depart
upward from the guideline range of 100-125 months, reflecting a
criminal history of six and an offense level of 24. Allen had fifty-two
criminal history points, four times the minimum number of points
required to fall within criminal history category six. The district court
found that, because category six did not sufficiently represent Allen’s
criminal history or the likelihood that he would commit future crimes,
an upward departure was warranted. The court then moved incremen-
tally down the sentencing table, determining that it had to move from
offense level twenty-five to level thirty-one to find an appropriate
sentencing range that took into account Allen’s criminal history and
the likelihood of recidivism. The guideline range for offense level
thirty-one, criminal history category six, is 188-235 months. The
court sentenced Allen to 120 months on Count One and 115 months
on Count Two. The sentences run consecutively.

   Allen contends on appeal that the district court did not adequately
consider the nature of his criminal record. In accordance with United
States v. Bellamy, 264 F.3d 448, 456 (4th Cir. 2001), we reject this
argument and find that the upward departure was not an abuse of dis-
cretion.

                                   VI

   We accordingly affirm. We dispense with oral argument because
the facts and legal contentions are adequately set forth in the material
6                     UNITED STATES v. ALLEN
before the court and argument would not aid the decisional process.

                                                       AFFIRMED
