                                                                           FILED
                           NOT FOR PUBLICATION                              APR 06 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 09-50028

             Plaintiff - Appellee,               D.C. No. 3:07-CR-03408-BEN-1

  v.
                                                 MEMORANDUM *
LUIS ENRIQUE CALDERON-
QUINONEZ,

             Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted January 13, 2010
                               Pasadena, California

Before: GOODWIN, CANBY, and FISHER, Circuit Judges.

       Luis Enrique Calderon-Quinonez (“Calderon”) was found guilty of

importation of cocaine and possession of cocaine with intent to distribute after a

stipulated-facts bench trial. The district court sentenced Calderon to a 97-month

term of imprisonment, five years of supervised release, fined him $808 and added a



        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
special assessment of $200. Calderon appeals the denial of his motion to suppress,

as well as two aspects of his sentence. We have jurisdiction pursuant to 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742, and we affirm.

      The district court did not err in denying Calderon’s motion to suppress.1 The

record does not support Calderon’s contention that the district judge acted as a

witness in violation of Federal Rule of Evidence 605. Furthermore, denial was

proper because Calderon’s arrest and the search and seizure that followed it were

supported by probable cause. The first search of Calderon’s vehicle upon his

arrival at the Port of Entry in Calexico, California, was a proper border search. See

United States v. Kessler, 497 F.2d 277, 279 (9th Cir. 1974) (“[A] car and its

passengers are subject to search without probable cause upon their entry to this

country.”). As a result of this search, the arresting officer knew that several

packages of white powder wrapped in duct tape were hidden behind the right rear

quarter panel of Calderon’s vehicle, providing probable cause to arrest Calderon

for the crime of importing cocaine and to seize the packages. Thus, even if the

district court, in concluding that there was probable cause to arrest, improperly



      1
         We review de novo the district court’s determination of probable cause, as
well as alleged violations of Federal Rule of Evidence 605. See Ornelas v. United
States, 517 U.S. 690, 699 (1996) (probable cause); United States v. Nickl, 427 F.3d
1286, 1293 (10th Cir. 2005) (Rule 605).

                                           2
relied upon other factors for which there was an insufficient foundation, such as a

drug dog alert and a field test of the white powder, this error was harmless. It also

is of no consequence that Calderon was not immediately arrested, but rather was

permitted to enter the United States under surveillance for a period of minutes

before he turned around and attempted to return to Mexico. He was arrested at the

port of entry by the same officer who had conducted the initial search and nothing

had undermined the officer’s probable cause to arrest Calderon for having

committed a crime in the officer’s presence. Finally, the seizure of the cocaine in

Calderon’s vehicle following the arrest was proper either as a border search or

because it was supported by probable cause.

      Nor does the district court’s denial of a minor role adjustment to Calderon’s

guidelines calculation require a remand. See U.S.S.G. Sentencing Guidelines

Manual § 3B1.2(b) (2007).2 Even if the district court erroneously compared

Calderon to the typical drug courier instead of to co-participants in his offense, any

error was harmless. The record reflects that Calderon had been paid to conduct

several “dry runs” across the border and that Calderon was apprehended with a


      2
         We review for clear error the district court’s finding that Calderon is not
entitled to a downward adjustment for his purported minor role in the offense,
United States v. Rosales-Rodriguez, 289 F.3d 1106, 1112 (9th Cir. 2002), and we
do not reverse if an error in application of the guidelines was harmless, see United
States v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006).

                                          3
substantial quantity of narcotics. See United States v. Davis, 36 F.3d 1424, 1436-

37 (9th Cir. 1994) (defendant who was more than a simple courier of drugs did not

play a minor role in the offense); United States v. Zakharov, 468 F.3d 1171, 1181

(9th Cir. 2006) (district court did not clearly err by denying a minor-role

adjustment on the basis of the large quantity of drugs involved). Further, the

district court did not clearly err in rejecting Calderon’s assertions that he believed

that the vehicle he was driving contained marijuana, not cocaine. United States v.

Ocampo, 937 F.2d 485, 491 (9th Cir. 1991) (“[T]he district court was entitled to

disbelieve [the defendant’s] self-serving descriptions of his own involvement[.]”).

On this record, Calderon was ineligible for the adjustment because he was not

“‘substantially’ less culpable than his . . . co-participants,” United States v.

Cantrell, 433 F.3d 1269, 1283 (9th Cir. 2006). Any legal error the district court

may have committed in reaching that conclusion was harmless.

      Finally, the district court did not clearly err in assessing an $808 fine, to be

paid from Calderon’s future earnings in the Inmate Financial Responsibility

Program (“IFRP”).3 In United States v. Haggard, we affirmed the district court’s

imposition of a $4,000 fine where the court found that the defendant could pay the


      3
        We review for clear error the district court’s determination that Calderon
has the ability to pay a fine. United States v. Brickey, 289 F.3d 1144, 1152 (9th
Cir. 2002).

                                            4
fine by working in the IFRP. See 41 F.3d 1320, 1329 (9th Cir. 1994). Although

the district court here did not explain the particulars of the IFRP on the record, it is

apparent that the court understood that the program would provide Calderon with a

source of income while serving his prison sentence, enabling him to pay this

modest fine. See United States v. Taylor, 984 F.2d 618, 622 (4th Cir. 1993) (“The

courts are presumed to have some passing familiarity with the conditions of

confinement at a federal prison, including how much prisoners get paid.”).

      AFFIRMED.




                                            5
