                                  No. 96-1583


United States of America,                  *
                                           *
      Appellee,                            *
                                           * Appeal from the United States
              v.      *                    District Court for the
                                           * District of Nebraska.
Mario C. Carrazco,                         *
                                           *
         Appellant.                        *




                            Submitted:   June 11, 1996

                              Filed:   July 31, 1996


Before MORRIS SHEPPARD ARNOLD and FLOYD R. GIBSON, Circuit Judges, and
      ROSENBAUM,* District Judge.


MORRIS SHEPPARD ARNOLD, Circuit Judge.

     Mario Carrazco pleaded guilty to possessing with intent to distribute
over 100 kilograms of marijuana, reserving his right to appeal the denial
of his motion to suppress the evidence obtained from the search of his
rented truck.         See Fed. R. Crim. P. 11(a) (2).       The district court
sentenced Mr. Carrazco to 37 months in prison.           We affirm the district
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court’s        denial of the motion to suppress as well as its refusal to
decrease Mr. Carrazco’s base offense level for purposes of sentencing.




     *
     The HONORABLE JAMES M. ROSENBAUM, United States District
     Judge for the District of Minnesota, sitting by
     designation.
          1
       The Honorable Thomas M. Shanahan, United States District
Judge for the District of Nebraska.
                                     I.
     Mr. Carrazco was stopped for speeding by a trooper near Omaha,
Nebraska.     Because the trooper’s car was equipped with a stationary
videotape recorder with a clock, and the trooper was wearing a microphone,
the district court was able, as we were, to review the entire encounter to
determine what occurred and the time that elapsed between relevant events.


     Mr. Carrazco apologized for speeding and accompanied the trooper to
the patrol car.    Immediately thereafter, the trooper requested a computer
check of Mr. Carrazco’s license and criminal history and called for a
second officer and a drug-detection dog to assist.   As soon as the license
check came back, the trooper issued a warning ticket to Mr. Carrazco.
Moments later, the second officer and two drug dogs arrived.    The trooper
then asked Mr. Carrazco if he would allow a drug dog to perform a “sniff”
of the exterior of the truck, and Mr. Carrazco said that he did not mind.
The second officer then led one of his dogs around the truck.     Thinking
that his dog was alerting to the truck, but not being absolutely certain,
the officer led his other dog around the truck, and the second dog clearly
alerted.    The trooper then used bolt cutters to cut the lock on the truck
and searched it.   After opening one of the boxes in the back of the truck
and stating that he smelled marijuana, the trooper arrested Mr. Carrazco.
The police discovered multiple packages containing over 400 pounds of
marijuana in a subsequent inventory search.


                                     II.
     Mr. Carrazco challenges the district court’s denial of his motion to
suppress the evidence recovered after the traffic stop.    He concedes that
the trooper had probable cause to stop him.     He contends, however, that
there was no legal reason to detain him after the license check and that
the subsequent search of his truck, though consensual, was therefore itself
illegal.    We see a




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number of infirmities in this argument, but the most obvious one is that
we do not think that the record can support a finding that Mr. Carrazco was
being detained illegally when he consented to the dog sniff.                     We have held
numerous times that police officers can detain a person in Mr. Carrazco’s
position for a reasonable time for the purpose of checking his driver’s
license, see, e.g., United States v. Sokolow, 490 U.S. 1, 7 (1989); see
also Terry v. Ohio, 392 U.S. 1, 26-27, 30 (1968), and here the trooper
asked for permission to conduct the “drug sniff” contemporaneously with
delivering the warning ticket to Mr. Carrazco.                     As the trooper handed
Mr.    Carrazco     the    warning     ticket,       Mr.   Carrazco   initiated       further
conversation, and the trooper responded.               After a three-second delay, the
trooper asked for permission to use the dog.               We are unwilling to say that
those three seconds between statements were anything other than a normal
pause in a single conversation.          Since the trooper received Mr. Carrazco’s
permission to have a dog sniff the truck at a time when his detention was
clearly permissible, and he never revoked that permission, he cannot
complain that the “dog sniff” was illegal.


       The subsequent search of the interior of Mr. Carrazco’s truck was
therefore plainly constitutional.             “[T]he police may search an automobile
and the containers within it where they have probable cause to believe
contraband or evidence is contained,” California v. Acevedo, 500 U.S. 565,
580 (1991), and “[a] dog’s identification of drugs in luggage or in a car
provides probable cause that drugs are present.”                   U.S. v. Bloomfield, 40
F.3d   910,   919   (8th    Cir.     1994).      Hence,    after    the   dogs    alerted   to
Mr. Carrazco’s truck, the trooper had probable cause to search it.                          We
therefore affirm the district court’s denial of Mr. Carrazco’s motion to
suppress.


                                              III.
       Mr. Carrazco also argues that he should have received a decrease in
his base offense level because he was just a “mule.”




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See U.S.S.G. § 3B1.2.       A four-level decrease is warranted if the defendant
was a “minimal participant” in the criminal activity.               U.S.S.G. § 3B1.2(a).
A minimal participant is one who is “plainly among the least culpable of
those involved in the conduct of a group,”              U.S.S.G. § 3B1.2, comment
(n.1), such as persons who “played no other role in a very large drug
smuggling operation than to offload part of a single marihuana shipment,
or . . . [persons who were] recruited as courier[s] for a single smuggling
transaction involving a small amount of drugs.”             U.S.S.G. § 3B1.2, comment
(n.2).     A two-level decrease in the offense level is warranted if the
defendant was a “minor participant” in the criminal activity.                    U.S.S.G. §
3B1.2(b).   A “minor participant means any participant who is less culpable
than most other participants, but whose role could not be described as
minimal.”   U.S.S.G. § 3B1.2, comment (n.3).         For cases “falling between (a)
and (b),” a three-level decrease is appropriate.               U.S.S.G. § 3B1.2.        The
district court, after hearing Mr. Carrazco's testimony on his role in the
offense,    refused    to   decrease   the   base    offense    level,     finding    that
Mr. Carrazco had not established his right to a decrease by a preponderance
of the evidence.


     Applying the relevant legal principles to the case at hand, we cannot
say that the district court erred in refusing to decrease Mr. Carrazco’s
base level.   First, Mr. Carrazco had the burden of proving his eligibility
for a decrease in the base offense level, see, United States v. Thompson,
60 F.3d 514, 517 (8th Cir. 1995), and the district court did not have to
believe Mr. Carrazco’s testimony that he was just a “mule.”                      While the
district    court     did   not   specifically      state    that     it   had    rejected
Mr. Carrazco's self-serving description of his role in the offense, we
believe that such a rejection is implicit in the court's finding that
Mr. Carrazco had not carried his burden of proof.                      Second, even if
Mr. Carrazco was just a “mule,” a downward adjustment would not necessarily
have been warranted:        “A defendant’s status as courier




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does not necessarily mean he is less culpable than other participants in
a drug operation.”    United States v. Williams, 890 F.2d 102, 104 (8th Cir.
1989).   Although there was evidence to suggest that others may have been
paying   Mr. Carrazco to carry drugs, the record reveals no evidence
establishing that he was any less culpable than those unidentified actors
whose roles were unknown.   See id.   Third, Mr. Carrazco was apprehended in
possession of a very substantial amount of drugs, a circumstance that tends
to suggest that his participation in the criminal enterprise was itself
very substantial.     Since the district court was not obliged to find that
Mr. Carrazco was entitled to a two-level decrease in the offense level, he
cannot claim eligibility for the others.    We therefore detect no error in
the district court’s sentence.


                                      IV.
     For the reasons stated, we affirm the judgment of the district court.


     A true copy.


            Attest:


                 Clerk, U.S. Court of Appeals, Eighth Circuit.




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