US v. Michael Uyioghosa Ohangbon

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00346-TDS-1 Copies to all parties and the district court/agency. [998611077].. [10-4957]

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Date Filed: 06/14/2011

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UNPUBLISHED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
resentencing by unpublished per curiam opinion.

remanded

for

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Unpublished opinions are not binding precedent in this circuit.

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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
months’ imprisonment.

He was sentenced to forty-two

This appeal followed.

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.
1

Ohangbon preserved his right to appeal the district
court’s ruling on the motion to suppress.
Fed. R. Crim. P.
11(a)(2).

2

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We

Document: 24

affirm

his

Date Filed: 06/14/2011

convictions

Page: 3 of 9

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.
(4th

Cir.

United States v. Blake, 571 F.3d 331, 338
cert.

2009),

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.”
532

F.3d

326,

omitted).
evidence

337

(4th

However,
is

“if

plausible

in

Cir.
the

2008)

United States v. Harvey,
(internal

district

light

of

quotation

court’s

the

record

marks

account

of

the

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. (internal

quotation marks and alteration omitted).
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.”
232

(4th

Cir.

2008)

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

quotation
3

marks

omitted).

We

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construe

the

Government

Date Filed: 06/14/2011

evidence

as

the

in

party

the

Page: 4 of 9

light

prevailing

most

favorable

below.

United

to

the

States

v.

Griffin, 589 F.3d 148, 150 (4th Cir. 2009), cert. denied, 131 S.
Ct. 1599 (2011).
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, Whren v. United States, 517 U.S. 806,
809-10 (1996), or a reasonable suspicion of unlawful conduct,
Terry

v.

Ohio,

392

officer’s

subjective

813-19.

See

U.S.

(4th Cir. 2008)
sufficient
offending

United

1,

motivations,
States v.

(“Observing

justification
vehicle

for

20-22

for

as

a
a

long

(1968),

regardless

Whren,

517 U.S.

Branch,

537

traffic

violation

police

officer

as

takes

it

F.3d

to
to

of

the

at

810,

328,

335

provides
detain

the

perform

the

traditional incidents of a routine traffic stop.”).
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.
The district court acknowledged the inconsistencies in
Saintsing’s testimony but found:
4

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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.

law

§§ 20-146(d)(1),

20-154(a)

(2009).

The

does

not

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

motorists.

concluding

The

Detective

district

Saintsing

court

had

thus

did

reasonable

not

err

suspicion

Ohangbon was violating North Carolina traffic laws.

in

that

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

5

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Whren,

had in stopping Ohangbon cannot alter this conclusion.
517 U.S. at 810, 813-19.
Ohangbon

further

argues

that

the

illegible

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

Stat.

§ 20-111(1),

willfully.
Saintsing

(2)

(2009),

because

he

did

not

act

Because Ohangbon’s erratic driving alone supplied
with

reasonable

suspicion

to

initiate

the

traffic

stop, we need not reach this issue.
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

firearm in connection with another felony offense.

a

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

offense.”

or
USSG

ammunition
§

in

connection

2K2.1(b)(6).

A

with

firearm

another

is

felony

possessed

in

connection with another offense if the firearm “facilitated, or
had the potential of facilitating,” the other offense.

2

USSG

The search of Ohangbon’s residence disclosed illicit drugs
in his bedroom and two handguns in his garage.

6

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§ 2K2.1 cmt. n.14(A).

Page: 7 of 9

“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.”
162

(4th Cir. 2009)

alterations

United States v. Jenkins, 566 F.3d 160,

(internal

omitted).

quotation

Here,

the

marks,

district

citations,

court,

and

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
finding,

district

by

substituting

enhancement

under

§ 2K2.1(b)(6). 3
Manigan,

for

§

court

erred,

the

standards

2D1.1(b)(1)

Those
example,

however,

to

provisions
concerned

the

reaching

applicable

one

are

in

to

applicable

not

its
an

under

interchangeable.

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
another

used

felony

or

possessed

offense.”

a

firearm

USSG

3

“in

connection

§ 2K2.1(b)(6).

with

Section

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).

7

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2D1.1(b)(1)

Date Filed: 06/14/2011

provides

for

a

Page: 8 of 9

two-level

enhancement

while

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

different

§ 2K2.1(b)(6)
burdens.

are

penalties

reflected

in

in

their

§ 2D1.1(b)(1)

elements

and

and

shifting

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.”
cmt. n.3.

USSG § 2D1.1

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,

felony offense or another offense, respectively.”
cmt. n.14(a).
(4th Cir. 1996)

another

USSG § 2K2.1

See United States v. Nale, 101 F.3d 1000, 1004
(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
8

it

appears

that

the

district

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court erroneously applied the “shifting burden” approach of §
2D1.1(b)(1)
2K2.1(b)(6),
unreasonable.

to

impose

we

a

four-level

vacate

Ohangbon’s

enhancement

sentence

as

under

§

procedurally

We remand for resentencing consistent with the

views expressed in this opinion. 4

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.
CONVICTION AFFIRMED, SENTENCE VACATED,
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.

9