                                                       United States Court of Appeals
                                                                Fifth Circuit
               IN THE UNITED STATES COURT OF APPEALS        FILED
                       FOR THE FIFTH CIRCUIT
                                                       December 11, 2006

                                                    Charles R. Fulbruge III
                            No. 05-51377                    Clerk



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

     versus

ERIC EUGENE HARRISON,

                                    Defendant-Appellant.



            Appeal from the United States District Court
                  for the Western District of Texas
                         No. EP-04-CR-2197-FM



Before GARWOOD, DENNIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Eric Harrison (Harrison) was found guilty by the jury of

knowingly and intentionally possessing with intent to distribute

100 kilograms or more of marihuana in violation of 21 U.S.C. §§

841(a)(1) and 841(b)(1)(B)(vii).   He was subsequently sentenced

to a term of ninety-seven months’ incarceration and five years of

supervised release.   Harrison raises several issues on appeal.

Finding no reversible error, we affirm his conviction and

sentence.

     *
       Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
                        I. Factual Background

     Harrison was stopped at the Sierra Blanca immigration

checkpoint driving an 18-wheeler tractor–trailer at approximately

1:30 a.m. on September 17, 2004.       After initial questioning by

Border Patrol Agent Soto,1 Harrison consented to a search of his

vehicle.    Thereafter, using an alien and drug detecting dog,

which alerted to the trailer and to the driver’s side of the

tractor, agents found in the trailer a legitimate commercial load

along with bundles of marihuana in distinguishable cardboard

boxes that did not match the rest of the load.       In total, these

boxes contained 1,891 pounds, or 857 kilograms, of marihuana.

Agent Soto then arrested Harrison and read him his Miranda

rights.    Harrison signed a written acknowledgment of his rights

at 1:35 a.m., approximately five minutes after the initial stop.

On the acknowledgment form, Harrison indicated he wished to waive

his rights and make a statement.

     Agent Soto then placed Harrison in a 10 foot by 15 foot

holding cell to await the arrival of the DEA agent, who would

question Harrison about the drugs found in his trailer.2      Then,


     1
     Agent Soto testified that    Harrison aroused some suspicions
by acting in a nervous manner.     He described him as stuttering,
failing to answer questions in   a timely manner, failing to look
him in the eye, having shaking   hands, and generally acting in a
nervous manner.
     2
     Harrison was alone in the holding cell. The cell had water
and a restroom and a place to sit, as well as benches on which
Harrison could have slept. He was not handcuffed while in the

                                   2
in the search of Harrison’s tractor, border patrol agents found

$22,000 in cash in a black duffel bag stuffed under the truck’s

bunk bed.   Harrison later claimed the cash was his “gas money,”

and that he obtained it legitimately from his wife who received

it from her workers’ compensation case.    However, agents also

found in that search a gas receipt dated that same day from a

nearby truck stop totaling $211.58, paid for with a credit card.

     DEA Agent Carmen Coutino arrived at the checkpoint at 5:30

a.m., approximately four hours after the initial stop and

discovery of the marihuana.   Upon her arrival, Agent Coutino was

debriefed by the border patrol agents, inspected the truck,

photographed Harrison and the marihuana, and fingerprinted

Harrison.   Before interviewing Harrison, Agent Coutino advised

Harrison of his rights again, and Harrison signed yet another

waiver of his rights at 7:00 a.m.    During the subsequent

interview, Harrison confessed to transporting the marihuana from

El Paso, Texas to Richmond, Illinois in exchange for $60,000

compensation to be received upon delivery.    The street value of

the marihuana was $565,000 in El Paso and $1.7 million in

Richmond.

     Harrison was indicted on October 13, 2004, for knowingly and

intentionally possessing with intent to distribute 100 kilograms

or more of marihuana in violation of 21 U.S.C. §§ 841(a)(1) and



cell or during his subsequent interview by the DEA agent.

                                 3
841(b)(1)(B)(vii).    He has been represented by counsel

continuously since a time prior to October 16, 2004.    In November

2004, Harrison moved to suppress the statements he made to law

enforcement officials,3 but the district court denied the

suppression motion after an evidentiary hearing on January 14,

2005.    Harrison’s first jury trial began on April 18, 2005, but

ended in mistrial April 21, 2005.     Harrison’s second jury trial

began on July 13, 2005, and the jury found him guilty as charged

on July 18, 2005.    At the sentencing hearing on October 12, 2005,

Harrison was sentenced to a term of ninety-seven months of

incarceration, five years of supervised release, and a $100

mandatory special assessment.

                           II. Discussion

     Harrison appeals his sentence and conviction, asserting the

following: (1) the district court erred in denying Harrison’s

motions to suppress statements made at the time of his arrest;

(2) the district court erred in admitting evidence of the cash

found in Harrison’s truck; (3) a Brady violation for admitted

evidence wrongfully held from the defense before trial; (4) the

district court erred in denying Harrison’s motion for a

continuance of the sentencing hearing in order for Harrison to

obtain a psychiatric examination, which could have yielded


     3
     In his January 3, 2005 brief in support of his motion
Harrison also argued that the search of his trailer and tractor
was illegal and the fruits thereof should be suppressed.

                                  4
considerations for a reduced sentence; and (5) the district court

erred in not allowing Harrison a two-point reduction in offense

level based upon his allegedly minor role pursuant to U.S.S.G.

§ 3B1.2.

A. Motion to Suppress

     We review a denial of a motion to suppress for clear error

as to factual findings and legal findings de novo. United States

v. Reyes, 349 F.3d 219, 222 (5th Cir. 2003).     Harrison first

argues that because his detention and arrest by the Border Patrol

agents were illegal, the statements and evidence obtained as a

result of the detention and arrest were wrongfully admitted into

evidence in violation of the Fourth Amendment and Miranda v.

Arizona, 86 S.Ct. 1602 (1966).   Harrison further argues that his

confession is not admissible because it was coerced.     We find no

error in the district court’s determinations.

     Harrison contends that the border patrol agents had

insufficient evidence to detain and search his truck and trailer

and that the detention and search was an unreasonable search and

seizure under the Fourth Amendment.     He claims that he did not

effectively consent and that the justification for the search

given by the agent was insufficient.4    Specifically, Harrison

argues that his suspicious demeanor and behavior as perceived by


     4
     However, his brief in this court states that at the
secondary inspection area “the Appellant consented to a search of
his vehicle.”

                                 5
the border patrol agent was insufficient cause for the search,

stating in his reply brief that “it appears that no discernable

reason was provided in having Mr. Harrison move his truck to the

secondary inspection point.”   However, immigration checkpoint

stops, and referral to the secondary inspection area there, do

not require individualized suspicion, and asking for consent to

search a vehicle does not unreasonably prolong an immigration

checkpoint stop.   United States v. Ventura, 447 F.3d 375, 378

(5th Cir. 2006); United States v. Chacon, 330 F.3d 323, 326–27

(5th Cir. 2003).   Furthermore, there is no evidence to suggest

clear error in the district court’s finding that Harrison

consented to the border patrol agents’ search of his trailer and

tractor.   In addition, the drug and alien detection dog alerted

the agents to the trailer and tractor before the agents searched.

See United States v. Garcia–Garcia, 319 F.3d 726, 730 (5th Cir.

2003) (“Once the dog alerted, the agents had, at a minimum,

sufficient reasonable suspicion to permit them to prolong the

stop to explore further the potential source of the dog’s

alert.”); United States v. Williams, 69 F.3d 27, 28 (5th Cir.

1995) (holding that a canine alert is sufficient to establish

probable cause to search a vehicle for drugs).

     Harrison also claims that the district court should have

suppressed his confession because it was involuntarily given due

to a lack of proper waiver of rights, coercion, and psychological


                                 6
pressure.   However, this is untenable in light of the evidence on

record and this court’s precedent.   To determine whether a

statement is involuntary, this court’s test considers whether the

tactics employed by the officers constitute a Fifth Amendment due

process violation and are “‘so offensive to a civilized system of

justice that they must be condemned.’” United States v.

Bengivenga, 845 F.2d 593, 601 (5th Cir. 1988) (quoting Miller v.

Fenton, 106 S.Ct. 445, 449 (1985)). The district court found, and

the record fully supports, that Harrison knowingly and

voluntarily acknowledged and waived his rights in writing twice

before making the statements he claims should have been

suppressed.

     Also, Harrison never raised the issue of his alleged

psychological problems at the suppression hearing and there was

never any indication that Harrison was incapable of understanding

surrounding events.   In short, our precedent and previous

opinions support a finding of voluntariness under these facts.5


     5
      The Supreme Court has held that a defendant’s mental
condition is a factor in determining voluntariness. Colorado v.
Connelly, 107 S.Ct. 515, 520 (1986). However, the Supreme Court
also noted that “a defendant's mental condition, by itself and
apart from its relation to official coercion” will not dispose of
the inquiry into constitutional “voluntariness.” Id. (not
requiring a confessor to be “totally rational and properly
motivated”). See also id. at 518, 520 n.1 (listing cases where
official coercion has been found, all describing events supported
by evidence, and finding a confession admissible where defendant
“was suffering from chronic schizophrenia and was in a psychotic
state at least as of . . . the day before he confessed”); United
States v. Cardenas, 410 F.3d 287, 295 (5th Cir. 2005) (discussing

                                 7
B. Admission of Cash Evidence and Brady Violation

     We also find that the district court did not abuse its

discretion in admitting into evidence testimony concerning the

$ 22,000 in cash found in his truck.    The record supports a

finding that its introduction was not overly prejudicial or

cumulative, and therefore not in violation of FED. R. EVID. 403

and 404.   Indeed, the presence of large sums of money is often

considered relevant as an indication of guilt in drug possession

cases. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th

Cir. 1998) (listing types of behavior that this court has

previously recognized as circumstantial evidence of guilty

knowledge, including “possession of large amounts of cash”).

     In addition, Harrison fails to state a Brady violation claim

as to the introduction of evidence allegedly withheld from the

defense without a prior opportunity for review by the defense.

The evidence at issue, the actual manifest of Harrison’s cargo on

the day of the arrest, was introduced at trial over defense

counsel’s objections and its existence was known to the defense

ever since not later than April 2005.    See United States v.

Infante, 404 F.3d 376, 386 (5th Cir. 2005) (“Brady rights are not

denied where the information was fully available to the defendant


factual scenarios whereby coercion or involuntariness was found
or not found); United States v. Ballard, 586 F.2d 1060, 1063 (5th
Cir. 1978) (listing cases where the court found that the
circumstances surrounding the defendant’s confession provided
ample support for a trial court’s ruling of voluntariness).

                                 8
and his reason for not obtaining and presenting such information

was his lack of reasonable diligence.”).   Also, there is no

sufficient indication that, even had the manifest been withheld

by the prosecution, it was exculpatory or impeaching. See United

States v. Sipe, 388 F.3d 471, 477 (5th Cir. 2004) (listing

elements of a Brady claim).

C. Denial of Motion for Continuance of Sentencing Hearing

     In October 2005 the day before the sentencing hearing was

scheduled (as per the district court’s July 18, 2005 order) to

commence, Harrison moved for a continuance of the hearing in

order to obtain a psychiatric examination, based on information

his counsel apparently received from Harrison's brother and

sister just after the second trial, about three months earlier.

Harrison claims the district court’s denial of his motion denied

him the right to argue for a downward departure based on his

psychological issues, including ADHD, using the sentencing-

determination factors listed in 18 U.S.C. § 3553(a)(1).    Harrison

argues he should be given the opportunity to present evidence as

to his psychological condition in order to argue that a

reasonable sentence would be lesser than that imposed.    He

contends that a new sentencing hearing should be held since the

district court did not have the opportunity to properly consider

that argument because it denied him the opportunity to obtain

additional evidence to support it.


                                9
     A district court’s denial of a motion to continue a

sentencing hearing is reviewed for abuse of discretion. United

States v. Barnett, 197 F.3d 138, 144 (5th Cir. 1999).     In order

for there to be an abuse of discretion, the denial must be

arbitrary or unreasonable. United States v. Hughey, 147 F.3d 423,

431 (5th Cir. 1998).    Movant must show that the denial of the

continuance resulted in prejudice that is “specific and

compelling” or “serious.”    Barnett, 197 F.3d at 144.   Also, since

Harrison did not raise his additional objection below that denial

of the continuance was error under United States v. Booker, 125

S.Ct. 738 (2005), because he should have been able to examine

this potential sentencing issue, review of that issue is for

plain error.    To establish plain error, there must be clear or

obvious error that affected Harrison’s substantial rights.    To

determine whether the plain error affected Harrison’s substantial

rights, Harrison must demonstrate a probability sufficient to

undermine confidence in the outcome. United States v. Dominguez

Benitez, 124 S.Ct. 2333, 2340 (2004).

     The district court’s denial of Harrison’s motion for

continuance at the beginning of the sentencing hearing in order

for him to obtain a psychiatric examination was not an abuse of

discretion.    Harrison has failed to show that the denial was

arbitrary or unreasonable and that the denial of the continuance

resulted in prejudice that is “specific and compelling” or


                                 10
“serious.” Barnett, 197 F.3d at 144; United States v. Hughey, 147

F.3d 423, 431 (5th Cir. 1998).   As the district court expressly

noted in denying the continuance motion, it had observed Harrison

closely through two trials and a suppression hearing, heard him

testify (and questioned him at the suppression hearing) and

“never at any time have I gotten any indication that there are

any issues about his mental competency.”   No question of

Harrison’s competency was ever raised in either of the two trials

or in any pretrial hearing.   And, finally, he is not

unconditionally due a continuance for which he moved at so late a

date without any reasonable explanation for the last minute

nature of the motion.

     Harrison also fails to establish plain error as to his

Booker claim because the PSR contained information on his

personal history, including information as to his mental and

emotional health; as stated above, the judge had ample

opportunity to observe him through trial; and his only argument

that the denial undermined confidence in the proceedings’ outcome

is that he theoretically may have been able to make another

argument for the court to consider in its discretion in

determining his sentence.

D. Sentence Reduction for Minor Participant

     Finally, we review for clear error the district court’s

factual finding that the defendant is not a minor participant in


                                 11
a crime for purposes of reviewing the denial of Harrison’s motion

for a downward departure based on U.S.S.G. § 3B1.2, which allows

for a two-level reduction if a defendant is a “minor participant”

in the offense for which he is being sentenced.   United States v.

Garcia, 242 F.3d 593, 598 (5th Cir. 2001).   The determination of

“minor participation” status is a “sophisticated factual

determination” to be made by the sentencing judge. Id. at 597-98.

Harrison indicates that he should have received the minor role

reduction because (1) other courts have found the adjustment to

be permissible when only one participant is charged in an

indictment, as is his case, though others were involved and (2)

his role was limited to transporting the marihuana. Harrison also

points out that his compensation of $60,000 was minimal compared

to the value of the illegal cargo he was transporting, which was

worth $1.7 million in Chicago and Richmond, Illinois.

     Harrison fails to establish clear error under this court’s

precedent. See United States v. Pafahl, 990 F.2d 1456, 1485 (5th

Cir. 1993) (holding that a “‘mule’ or transporter of drugs may

not be entitled to minor or minimal status”).   U.S.S.G. § 3B1.2

indicates that it may be permissible to consider a mere drug

transporter a minor participant but it is by no means an

automatic or mandatory determination.   Indeed, Harrison’s role

was essential for the drugs to get to Illinois from El Paso. See

United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989).


                               12
Harrison was not attributed for sentencing purposes with any

amount of marihuana in excess of what he was knowingly

transporting on this occasion.

                         III. Conclusion

     For the foregoing reasons, the defendant’s conviction and

sentence are

                            AFFIRMED.




                                 13
