                     UNITED STATES COURT OF APPEALS
Filed 11/6/96
                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 95-2020
 v.                                              (D.C. No. CR 94-180 MV)
                                                         (D. N.M.)
 RAFAEL MARIN,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and HENRY, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.



      Mr. Rafael Marin was convicted of possession of marijuana with intent to


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
distribute and aiding and abetting, and the district court sentenced him to twenty-

seven months imprisonment followed by three years supervised release. Mr.

Marin raises several claims on appeal, and we affirm the district court on all

issues.



      Briefly stated, the facts are as follows. Agents of the United States Border

Patrol stopped Mr. Marin at a Border Patrol checkpoint. Agent John Esquivel

noticed a temporary license on Mr. Marin's automobile indicating it had recently

been purchased. (Ape. Br. at 4.) Mr. Marin's answers to Agent Esquivel's

questions about his car and destination aroused Agent Esquivel's suspicions.

Agent Esquivel then obtained Mr. Marin's permission to search the car with a

drug detection dog. The dog alerted on a portion of the automobile. The agents

then obtained written consent from Mr. Marin to search the car. The search

revealed approximately forty pounds of marijuana.



      Mr. Marin first contends he was unlawfully detained at the border patrol

checkpoint and that the district court erred in refusing to suppress evidence

obtained during the stop. "'[W]hether a search and seizure was reasonable under

the Fourth Amendment is a question of law that we review de novo.'" United

States v. Massie, 65 F.3d 843, 847 (10th Cir. 1995) (quoting United States v.


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Maestas, 2 F.3d 1485, 1490 (10th Cir. 1993)). At a fixed checkpoint such as the

one at which Mr. Marin was detained, border patrol agents may stop, briefly

detain and question individuals without any individualized suspicion that those

persons are engaged in criminal activity. Id. (citing United States v. Martinez-

Fuerte, 428 U.S. 543, 562 (1976)). Agents have authority to ask any question

reasonably related to their duty to prevent entry of unauthorized individuals or

contraband into this country. Id. at 848 (citing United States v. Rascon-Ortiz, 994

F.2d 749, 752 (10th Cir. 1993)). If agents observe "suspicious circumstances"

during initial questioning, they may further detain individuals for inquiry into

those circumstances. Id. (citing Rascon-Ortiz, 994 F.2d at 753). In determining

whether "suspicious circumstances" exist, "we apply 'a common sense view of the

totality of the circumstances.'" Id. (quoting United States v. Sanders, 937 F.2d

1495, 1500 (10th Cir. 1991), cert. denied, 502 U.S. 1110 (1992)).



      Applying a common sense view of the totality of the circumstances, we find

sufficient evidence supported Agent Esquivel's determination that suspicious

circumstances existed justifying further detention and questioning of Mr. Marin.

Mr. Marin was driving a car with temporary license plates, and Agent Esquivel

had previously received information that smugglers often use false temporary

licenses, or temporary licenses obtained through illegal means, on vehicles driven


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through checkpoint stops. When Agent Esquivel inquired into vehicle ownership,

Mr. Marin responded that he (and the woman with him) had just purchased the car

and were taking it for a test drive. Agent Esquivel found it odd that someone

would purchase a vehicle and then test drive it. Agent Esquivel also noted the

temporary plate indicated the car had been purchased in El Paso, Texas,

approximately fifty miles from the checkpoint, and he thought it odd someone

would take a fifty-mile test drive. Additionally, in response to Agent Esquivel's

request for vehicle registration, Mr. Marin presented a purchase order that

contained information conflicting with the temporary license. Finally, Agent

Esquivel thought Mr. Marin looked visibly nervous, looking right and left before

answering questions and stuttering and stumbling with his words when asked his

destination.



      Affording appropriate deference to Agent Esquivel's determinations, id. at

848-49 (citing Sanders, 937 F.2d at 1500), we find under the totality of the

circumstances suspicious circumstances existed justifying the continued detention

and questioning of Mr. Marin. Furthermore, because Mr. Marin consented to the

dog sniff search, he consented to the resulting brief detention. See United States

v. Chavira, 9 F.3d 888, 890 n.1 (1993). Upon de novo review, we affirm the

district court's holding that the search and seizure was lawful.


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      We also affirm the district court's refusal to grant Mr. Marin's motion to

suppress evidence obtained during the stop. "In reviewing a district court's ruling

on a motion to suppress evidence, we view the evidence in the light most

favorable to the prevailing party and accept the district court's findings of fact

unless they are clearly erroneous." Massie, 65 F.3d at 847. We find the district

court's reasoning persuasive and, as Mr. Marin has not presented evidence

proving its findings of fact clearly erroneous, affirm for substantially the reasons

stated by that court.



      Mr. Marin also claims there was insufficient evidence to support his

conviction of possession of marijuana with intent to distribute and aiding and

abetting. On such a claim,

      we review the entire record in the light most favorable to the
      government to determine whether the evidence is such that a
      reasonable jury could find the defendant guilty beyond a reasonable
      doubt. To the extent that the evidence conflicts, we accept the jury's
      resolution of conflicting evidence and its assessment of the
      credibility of witnesses."

United States v. Chavez-Marquez, 66 F.3d 259, 262 (10th Cir. 1995) (quoting

United States v. Sapp, 53 F.3d 1100, 1103 (10th Cir. 1995), cert, denied, 116 S.

Ct. 796 (1996)).



      After reviewing the record, and considering it in the light most favorable to

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the government, we conclude a reasonable jury could find Mr. Marin guilty

beyond a reasonable doubt. Mr. Marin asserts the government presented no

evidence he had knowledge or control or dominion over the marijuana proving

only that marijuana was concealed in the car he was driving. However, the jury

heard testimony from which it could have inferred Mr. Marin's knowledge of the

marijuana and complicity with the charged offenses. Moreover, the jury's refusal

to credit Mr. Marin's testimony was its prerogative, and we must accept its

assessment of witness credibility. Chavez-Marquez, 66 F.3d at 262.



      Mr. Marin also contends the district court erred in not granting him a four-

level downward departure based on his minimal role in the offense. The district

court's finding that Mr. Marin was not a minimal participant, and thus not entitled

to the requested departure, is a finding of fact that will not be disturbed on appeal

unless it is clearly erroneous. United States v. Ballard, 16 F.3d 1110, 1114 (10th

Cir. 1994).



      Section 3B1.2 of the United States Sentencing Guidelines and its

commentary allow the district court to grant a two- to four-level departure to less

culpable defendants who played minor or minimal roles in the commission of the

charged offense. Mr. Marin claims to be less culpable than others involved in the


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offense, alleging he was too poor to have any ownership interest in the marijuana

and his involvement was merely as the driver of the car containing marijuana.

However, even if Mr. Marin's participation in the commission of the offense was

limited to the role of a driver, that does not necessarily render him less culpable,

or entitle him to a departure, because drivers may be essential cogs in drug

distribution schemes. See United States v. Carter, 971 F.2d 597, 600 (10th Cir.),

cert. denied, 113 S. Ct. 628 (1992); United States v. Arredondo-Santos, 911 F.2d

424, 425 (10th Cir. 1990). There is no per se rule allowing couriers or drivers to

achieve minimal participant status. Ballard, 16 F.3d at 1115. Mr. Marin had the

burden of establishing by a preponderance of the evidence that he was a minimal

or minor participant, Carter, 971 F.2d at 599, and the district court failed to find

he met that burden. We find no evidence in the record or in Mr. Marin's brief on

appeal showing the district court's failure to depart clearly erroneous.



      Mr. Marin raises four additional issues. Review of the record informs us

these issues are meritless.



      The judgment of the district court is AFFIRMED.



                                        Entered for the Court


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WADE BRORBY
United States Circuit Judge




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