UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 10-4957

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL UYIOGHOSA OHANGBON,

Defendant – Appellant.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Thomas D. Schroeder, 

District Judge. (1:09-cr-00346-TDS-1)

Submitted: May 31, 2011 Decided: June 14, 2011

Before WILKINSON, DAVIS, and WYNN, Circuit Judges.

Conviction affirmed, sentence vacated, and case remanded for 

resentencing by unpublished per curiam opinion.

David B. Freedman, CRUMPLER FREEDMAN PARKER & WITT, WinstonSalem, North Carolina, for Appellant. Ripley Rand, United 

States Attorney, Michael F. Joseph, Assistant United States 

Attorney, Greensboro, North Carolina, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.
2

PER CURIAM:

In October 2009, a federal grand jury charged Michael 

Uyioghosa Ohangbon with possession with intent to distribute 

marijuana, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count 

One); maintaining a drug-involved premises, in violation of 21

U.S.C. § 856(a)(1) (2006) (Count Two); possession of a firearm 

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) 

(2006) (Count Three); and possession of a firearm by an illegal 

alien, in violation of 18 U.S.C. § 922(g)(5) (2006) (Count 

Four). 

Ohangbon moved to suppress the evidence recovered from 

his vehicle following a traffic stop and from the subsequent 

search of his residence. The district court denied the motion, 

and thereafter Ohangbon pleaded guilty to Counts One and Three 

pursuant to a plea agreement.1

On appeal Ohangbon contends that the district court 

erred in denying his suppression motion because police lacked 

probable cause or reasonable suspicion to stop his vehicle. 

Ohangbon also asserts that the district court procedurally erred 

in sentencing when it enhanced his offense level by four levels.

 He was sentenced to forty-two 

months’ imprisonment. This appeal followed.

 1 Ohangbon preserved his right to appeal the district 

court’s ruling on the motion to suppress. Fed. R. Crim. P. 

11(a)(2).
3

We affirm his convictions but vacate and remand for 

resentencing. 

We review factual findings underlying the district 

court’s denial of a motion to suppress for clear error and legal 

conclusions de novo. United States v. Blake, 571 F.3d 331, 338 

(4th Cir. 2009), cert. denied, 130 S. Ct. 1104 (2010). 

A factual finding is clearly erroneous if this court “on the 

entire evidence is left with the definite and firm conviction 

that a mistake has been committed.” United States v. Harvey, 

532 F.3d 326, 337 (4th Cir. 2008) (internal quotation marks 

omitted). However, “if the district court’s account of the 

evidence is plausible in light of the record viewed in its 

entirety,” we will not reverse the district court’s finding even 

if we would have “decided the fact differently.” United 

States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (internal 

quotation marks and alteration omitted). In other words, when 

two views of the evidence are permissible, “the district court’s 

choice between them cannot be clearly erroneous.” Id.

We also defer to the district court’s credibility 

determinations, “for it is the role of the district court to 

observe witnesses and weigh their credibility during a pre-trial 

motion to suppress.” 

(internal 

quotation marks and alteration omitted). 

United States v. Abu Ali, 528 F.3d 210, 

232 (4th Cir. 2008) (internal quotation marks omitted). We 
4

construe the evidence in the light most favorable to the 

Government as the party prevailing below. United States v. 

Griffin, 589 F.3d 148, 150 (4th Cir. 2009), cert. denied

A traffic stop of a vehicle constitutes a seizure 

within the meaning of the Fourth Amendment and is permissible if 

the officer has either probable cause to believe a traffic 

violation has occurred, 

, 131 S. 

Ct. 1599 (2011).

Whren v. United States, 517 U.S. 806, 

809-10 (1996), or a reasonable suspicion of unlawful conduct, 

Terry v. Ohio, 392 U.S. 1, 20-22 (1968), regardless of the 

officer’s subjective motivations, Whren, 517 U.S. at 810, 

813-19. See United States v. Branch

Ohangbon identifies inconsistencies in the testimony 

of Detective Saintsing, the officer who conducted the traffic 

stop, concerning the alleged violations that led to the stop. 

He argues that Saintsing lacked a legitimate basis to initiate a 

stop and that the purported traffic violations relied upon by 

Saintsing were pretextual.

, 537 F.3d 328, 335 

(4th Cir. 2008) (“Observing a traffic violation provides 

sufficient justification for a police officer to detain the 

offending vehicle for as long as it takes to perform the 

traditional incidents of a routine traffic stop.”). 

The district court acknowledged the inconsistencies in 

Saintsing’s testimony but found:
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any discrepancies in Saintsing’s testimony do not 

undermine his credibility to the point of causing the 

court to reject it all. Based on the totality of the 

circumstances, the court finds Saintsing credible 

regarding the critical fact that he observed the 

Mercedes change lanes erratically, run off the road, 

and swerve within a lane during its travel down the 

highway.

Deferring to the district court’s credibility determinations and 

viewing the evidence in the light most favorable to the 

Government, we conclude that Saintsing had reasonable suspicion 

to initiate a traffic stop notwithstanding the discrepancies 

Ohangbon identifies.

Ohangbon contends that, in any event, his movements 

did not violate North Carolina law because there was no 

testimony that he drove his vehicle so unsafely as to endanger 

another. We disagree. North Carolina law provides that drivers 

ensure their movements can be made in safety. See N.C. Gen. 

Stat. §§ 20-146(d)(1), 20-154(a) (2009). The law does not 

distinguish between the driver’s own safety and the safety of 

other motorists. The district court thus did not err in 

concluding Detective Saintsing had reasonable suspicion that 

Ohangbon was violating North Carolina traffic laws. Ohangbon’s 

erratic movements supplied a reasonable suspicion that he was 

not able or willing to determine whether his movements could be 

made in safety. Any subjective motivations Saintsing may have 
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had in stopping Ohangbon cannot alter this conclusion. Whren

Ohangbon further argues that the illegible 

registration sticker on his license plate did not violate N.C. 

Gen. Stat. § 20-111(1), (2) (2009), because he did not act 

willfully. Because Ohangbon’s erratic driving alone supplied 

Saintsing with reasonable suspicion to initiate the traffic 

stop, we need not reach this issue.

, 

517 U.S. at 810, 813-19.

Next, Ohangbon argues that the district court 

committed procedural error at sentencing when it misapplied the 

advisory Sentencing Guidelines. Specifically, he argues that the 

district court erred when it applied a four-level enhancement to 

his offense level based on its finding that he possessed a 

firearm in connection with another felony offense. See U.S. 

Sentencing Guidelines Manual (“USSG”) § 2K2.1(b)(6) (2009).2

The Guidelines allow for a four-level increase of a 

defendant’s offense level where “the defendant used or possessed 

any firearm or ammunition in connection with another felony 

offense.” USSG § 2K2.1(b)(6). A firearm is possessed in 

connection with another offense if the firearm “facilitated, or 

had the potential of facilitating,” the other offense. USSG 

 2 The search of Ohangbon’s residence disclosed illicit drugs 

in his bedroom and two handguns in his garage.
7

§ 2K2.1 cmt. n.14(A). “This requirement is satisfied if the 

firearm had some purpose or effect with respect to the other 

offense, including if the firearm was present for protection or 

to embolden the actor.” United States v. Jenkins, 566 F.3d 160, 

162 (4th Cir. 2009) (internal quotation marks, citations, and 

alterations omitted). Here, the district court, relying on 

United States v. Manigan, 592 F.3d 621 (4th Cir. 2010), among 

other cases, concluded that the Government had established the 

applicability of the four-level enhancement.

The district court erred, however, in reaching its 

finding, by substituting the standards applicable to an 

enhancement under § 2D1.1(b)(1) to one applicable under

§ 2K2.1(b)(6).3

 3 Although Ohangbon failed to present this precise argument, 

we exercise our discretion to reach it because the broader issue 

of the appropriateness of the § 2K2.1(b)(6) enhancement cannot 

be addressed without setting forth the appropriate standard. 

See U.S. Nat’l Bank of Oregon v. Indep. Ins. Agents of Am., 

Inc., 508 U.S. 439, 448 (1993); United States v. Heater, 63 F.3d 

311, 331 n.5 (4th Cir. 1995).

 Those provisions are not interchangeable. 

Manigan, for example, concerned the application of USSG 

§ 2D1.1(b)(1), which applies to an individual convicted of a 

narcotics offense while in possession of a weapon; in contrast, 

§ 2K2.1(b)(6) applies to an individual convicted of a firearms 

offense who used or possessed a firearm “in connection with

another felony offense.” USSG § 2K2.1(b)(6). Section 
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2D1.1(b)(1) provides for a two-level enhancement while 

§ 2K2.1(b)(6) provides for a four-level enhancement. 

The different penalties in § 2D1.1(b)(1) and 

§ 2K2.1(b)(6) are reflected in their elements and shifting 

burdens. A two-level enhancement under § 2D1.1(b)(1) is proper 

where the Government proves “[a] weapon was present;” it then 

falls to the defendant to prove that “it is clearly improbable 

that the weapon was connected with the offense.” USSG § 2D1.1 

cmt. n.3. In contrast, a § 2K2.1(b)(6) enhancement will apply

only if the Government proves that “the firearm or ammunition 

facilitated, or had the potential of facilitating, another 

felony offense or another offense, respectively.” USSG § 2K2.1 

cmt. n.14(a). See United States v. Nale, 101 F.3d 1000, 1004 

(4th Cir. 1996) (disapproving of analogizing “in connection 

with” language in § 2K2.1(c) to § 2D1.1(b)(1) and placement of 

burden an defendant to show no “connection”). Here, although it 

purported to apply § 2K2.1(c), the district court adverted to 

the “shifting burden” standard applicable to the two-level 

enhancement provided in § 2D1.1(b)(1), stating, “the Court finds 

that the Defendant has not carried the burden of demonstrating 

that it was clearly improbable that the handguns were not used 

in connection with the drug activity.” J.A. 122-23. 

For the reasons set forth above, we affirm Ohangbon’s 

convictions. However, because it appears that the district 
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court erroneously applied the “shifting burden” approach of § 

2D1.1(b)(1) to impose a four-level enhancement under § 

2K2.1(b)(6), we vacate Ohangbon’s sentence as procedurally 

unreasonable. We remand for resentencing consistent with the 

views expressed in this opinion.4

CONVICTION AFFIRMED, SENTENCE VACATED,

 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.

AND CASE REMANDED FOR RESENTENCING

 4 By this disposition, we indicate no opinion as to the 

appropriateness of a four-level enhancement under § 2K2.1(b)(6) 

assessed under the proper standard.