* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 11/6/96 TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. RAFAEL MARIN, Defendant-Appellant. No. 95-2020 (D.C. No. CR 94-180 MV) (D. N.M.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and HENRY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Mr. Rafael Marin was convicted of possession of mar ijuana with intent to-2-

distribute and aiding and abetting, and the distric t court sentenced him to twentyseven months imprisonment followed by three years s upervised release. Mr. Marin raises several claims on appeal, and we affir m the district court on all issues.
Briefly stated, the facts are as follows. Agents o f the United States Border Patrol stopped Mr. Marin at a Border Patrol checkpo int. Agent John Esquivel noticed a temporary license on Mr. Marin's automobi le indicating it had recently been purchased. (Ape. Br. at 4.) Mr. Marin's answ ers to Agent Esquivel's questions about his car and destination aroused Age nt Esquivel's suspicions. Agent Esquivel then obtained Mr. Marin's permissionto search the car with a drug detection dog. The dog alerted on a portion o f 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 detainedat the border patrol checkpoint and that the district court erred in ref using 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 r eview de novo.'" United States v. Massie , 65 F.3d 843, 847 (10th Cir. 1995) (quoting United States v.-3-

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 individ ualized suspicion that those persons are engaged in criminal activity. Id. (citing United States v. MartinezFuerte , 428 U.S. 543, 562 (1976)). Agents have authorityto ask any question reasonably related to their duty to prevent entry o f 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 dete rmination 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 il legal means, on vehicles driven-4-

through checkpoint stops. When Agent Esquivel inqu ired 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 Esquive l found it odd that someone would purchase a vehicle and then test drive it. A gent Esquivel also noted the temporary plate indicated the car had been purchase d 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 present ed 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 wi th 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 just ifying the continued detention and questioning of Mr. Marin. Furthermore, because Mr. Marin consented to the dog sniff search, he consented to the resulting bri ef 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 seizur e was lawful.-5-

We also affirm the district court's refusal to gran t Mr. Marin's motion to suppress evidence obtained during the stop. "In re viewing a district court's ruling on a motion to suppress evidence, we view the evide nce in the light most favorable to the prevailing party and accept the di strict 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, aff irm for substantially the reasons stated by that court.

Mr. Marin also claims there was insufficient eviden ce to support his conviction of possession of marijuana with intent t o distribute and aiding and abetting. On such a claim, we review the entire record in the light most favor able to the government to determine whether the evidence is suc h that a reasonable jury could find the defendant guilty bey ond a reasonable doubt. To the extent that the evidence conflicts, we accept the jury's resolution of conflicting evidence and its assessme nt 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 t he light most favorable to-6-

the government, we conclude a reasonable jury could find Mr. Marin guilty beyond a reasonable doubt. Mr. Marin asserts the g overnment presented no evidence he had knowledge or control or dominion ov er 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 M r. 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 innot granting him a fourlevel 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 th at 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 Guide lines and its commentary allow the district court to grant a two- to four-level departure to less culpable defendants who played minor or minimal rol es in the commission of the charged offense. Mr. Marin claims to be less culpa ble than others involved in the-7-

offense, alleging he was too poor to have any owner ship 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 c ommission of the offense was limited to the role of a driver, that does not nece ssarily 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 ev idence 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 rec ord or in Mr. Marin's brief on appeal showing the district court's failure to depa rt 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-8- WADE BRORBY United States Circuit Judge