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.
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. 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.
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."
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,
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:
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.
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.
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.
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 § 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."
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).
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).
For the reasons set forth above, we affirm Ohangbon's convictions. However, because it appears that the district 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.