F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                UNITED STATES COURT OF APPEALS
                                                             JUL 17 1998
                            TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                  Clerk


UNITED STATES OF AMERICA,

     Plaintiff-Appellee,

v.
                                              No. 96-2145
                                       (District of New Mexico)
JORGE BRISENO-MENDEZ, a.k.a.
                                        (D.C. No. 95-CR-528-3)
Jorge Brisenio,

     Defendant-Appellant.

____________________________


UNITED STATES OF AMERICA,

     Plaintiff-Appellee,

v.                                            No. 96-2172
                                       (District of New Mexico)
EMILY SILVA,                            (D.C. No. CR-95-528-2)

     Defendant-Appellant.

____________________________
UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                      No. 96-2218
                                                 (District of New Mexico)
ANGEL JOSE CASTANEDA,                             (D.C. No. CR-95-528)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and MURPHY, Circuit Judges.



      A superseding two-count indictment charged Emily Silva, Jorge Briseno-

Mendez and Angel Jose Castaneda with (1) conspiracy to possess with intent to

distribute more than five kilograms cocaine, in violation of 21 U.S.C.

§§ 841(a)(1), 846 and 18 U.S.C. § 2, and (2) possession with intent to distribute

more than five kilograms cocaine, in violation of 21 U.S.C. § 841(a)(1) and

18 U.S.C. § 2. All three were tried jointly before a jury. Silva and Briseno-

Mendez were convicted on both counts; Castaneda was found guilty on the


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       This order and judgment is not binding precedent, except under the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

                                         -2-
conspiracy count, but acquitted on the possession count. All three appeal their

convictions. Their appeals raise the following issues: (1) whether the district

court erred in refusing to grant Briseno-Mendez and Castaneda severance;

(2) whether the court violated Silva’s and Briseno-Mendez’s confrontation rights

by prohibiting cross-examination of codefendant Castaneda regarding his criminal

history; (3) whether the court erred in admitting evidence against Castaneda

which was seized during a search of the car he was driving; (4) whether the court

erred in refusing Briseno-Mendez’s request for a jury instruction regarding

intoxication; (5) whether there was sufficient evidence to sustain Briseno-

Mendez’s and Castaneda’s convictions; and (6) whether the court erred at

sentencing by refusing to find that Castaneda was a minimal participant and that

his criminal history was exaggerated. This court affirms.

                                 BACKGROUND

      On September 12, 1995 Silva, Briseno-Mendez, and Castaneda were

arrested at an immigration checkpoint station in New Mexico after agents found

approximately twenty-one kilograms of cocaine hidden in their car.

      When the defendants pulled into the checkpoint, Agent Hector Lugo asked

whether everyone in the car was a United States citizen. Castaneda, who was

driving the vehicle, answered in the affirmative. When Castaneda replied, Agent

Lugo noticed that Briseno-Mendez, who was sitting in the front passenger seat,


                                         -3-
did not make eye contact with him, so Agent Lugo again inquired into his

citizenship. In response, Briseno-Mendez handed Agent Lugo a card from

Caesar’s Palace. Upon further inquiry, Agent Lugo discovered that Castaneda

was not a United States citizen, as he had represented, but rather a resident alien

and that Briseno-Mendez was not in the United States legally. Briseno-Mendez

was placed under arrest.

      Agent Lugo then asked Castaneda for permission to search the vehicle.

Castaneda responded, “Go ahead. It’s not my car.” Castaneda told Agent Lugo

that the car belonged to one of his girlfriends.

      Agent Lugo signaled Agent Brian May to bring Tessa, a drug sniffing dog,

to the car. When the dog reached an open window, she alerted. Agent May then

let Tessa inside the car where she specifically alerted to the rear seat. A search of

the car revealed a hidden compartment behind the rear seat containing

approximately twenty-one kilograms of cocaine, as well as coffee grounds to

mask the odor. Agent May testified that the trap door to the hidden compartment

was lightly covered by a layer of “Bondo,” a filler generally used to repair

damage to the body of a vehicle, and that the Bondo was “still soft and somewhat




                                          -4-
pliable,” an indication that it had been in place for only a day or two. Agent May

also testified that the carpet covering the trap door “appeared to be almost new.” 2

      Silva and Castaneda were placed under arrest and subsequently questioned

by Agent May. Silva told Agent May that they had driven from Bell, California

to El Paso, Texas “to party and to just see El Paso” and that they were on their

way back to California. The distance between Bell and El Paso is approximately

800 miles. When Agent May asked what they did in El Paso, Silva told him that

“once they got to El Paso, they decided not to go out and they just rented a motel

room and stayed there the entire time.” Silva also told Agent May that Briseno-

Mendez and Castaneda left the motel for a short time to fix the car battery, but

she did not accompany them.

      Castaneda similarly told Agent May that they had driven from Bell to El

Paso “just to see El Paso.” He reported that they spent most of their time in El

Paso at a motel, but said that he and Briseno-Mendez left the motel for a short

time to work on the car. Contrary to his earlier statement that the car belonged to

one of his girlfriends, Castaneda told Agent May that “Ms. Silva had borrowed

the car from a friend of hers.”




      2
       After Castaneda’s arrest, Doña Ana County Metro Narcotics Agent Dennis
Romero found an upholstery shop business card on his person. Two identical
business cards were found in the vehicle.

                                         -5-
       Doña Ana County Metro Narcotics Agent Dennis Romero also questioned

Silva and Castaneda. Silva and Castaneda both told Agent Romero that they had

left Bell the evening of September 10th, had driven all night, had arrived in El

Paso mid-morning on September 11th, and left El Paso again the afternoon of

September 12th. Silva told Agent Romero that once they arrived in El Paso, she

stayed in the motel room, while Briseno-Mendez, whom Silva identified as her

boyfriend, and Castaneda left to get beer. Castaneda, on the other hand, told

Agent Romero that they remained in the motel throughout their stay in El Paso.

Silva also told Agent Romero that she had borrowed the car from a friend and that

it was her idea to go to El Paso.

       After questioning Silva and Castaneda, Agent Romero searched the car.

Agent Romero testified that he immediately noticed there were deodorizers in the

car and stated that the car had a strong powdery fragrance. In the trunk of the car,

Agent Romero found three bags with clothing, but noted that he did not find any

toiletries.

       At trial, Wendy Farrier testified that she had sold the vehicle the defendants

were driving to a person named “Miguel” who was accompanied by two other

Mexican men. Miguel paid $1,000 cash for the car. Farrier told the three men

that she needed to find the car’s title, but they said it was not necessary. A month

later, Farrier signed a release of liability at the DMV after she was unable to


                                         -6-
reach the men who had purchased the car. Farrier testified that she was not

certain, but Briseno-Mendez “look[ed] familiar, like he was one of the men that

was there.” Farrier’s boyfriend, Steve Siddler, was also present during the sale.

Siddler testified that while he could not identify the men’s faces, based on age,

height, weight, and national origin, Castaneda and Briseno-Mendez fit the

description of two of the men who were present during the sale.

      Castaneda and Silva both testified on their own behalf. Castaneda testified

that he had met Silva about a month and a half before the trip to El Paso. He

stated that Silva asked him if he wanted to go on a trip and offered him money to

drive her to El Paso. A few days after Silva asked him to drive, Silva’s

boyfriend, Briseno-Mendez, came over and asked Castaneda if he was ready to

leave. Castaneda testified that he grabbed a small bag with clothes; got in a truck

that belonged to Silva; waited for Silva’s daughter to arrive; followed Silva’s

daughter, who was driving a Volkswagen, to a house; and then got into the

Volkswagen with Silva and Briseno-Mendez and departed. Castaneda stated that

they left California in the evening and drove fourteen hours “straight through the

night and daytime.” He testified that at about 5:00 a.m., he “started slapping the

hell out of [his] face because [he] couldn’t drive no more.”

      When they got to El Paso, Castaneda stated that he drove to a cheap motel.

Silva gave him money for the motel room and instructed him to pay for a


                                         -7-
telephone in the room, which Silva used. Castaneda testified that he left the

motel room to eat and then again to go get beer with Briseno-Mendez.

      Castaneda testified that the next day, Silva asked him to drive her and gave

him instructions. Silva directed Castaneda across the Mexican border to Ciudad

Juarez. Castaneda stated that he “panicked because [he] was crossing the border”

and became “suspicious . . . the car was stolen or something . . . was going

down.”

      Castaneda testified that during their trip to Mexico, Silva had him drive

down the street so she could look for a friend’s car. They stopped for a short

period and Silva phoned Briseno-Mendez at the motel. Briseno-Mendez told

Silva to go over the border and wait. An individual then approached their vehicle

and Castaneda was instructed to follow another car. They stopped in front of a

restaurant. There were two men present. Silva handed the car key to one of the

men. One man said he was going to check the motor. Castaneda went inside the

restaurant. Approximately twenty-five minutes later, the two men returned,

handed over the key, and helped Castaneda push the car because it was not

functioning properly.

      Castaneda testified that Silva and he then returned to El Paso, checked out

of the motel, and started the trip back to California. At the checkpoint where they

were arrested, Castaneda testified that he never claimed he or Briseno-Mendez


                                         -8-
were United States citizens, as Agent Lugo had stated. Castaneda further testified

that when agents asked if they could search the vehicle, he told them: “Go ahead.

I don’t got nothing in here, you know.” Castaneda denied knowledge of the

cocaine.

      Silva testified that she met Castaneda through Briseno-Mendez the day

before their trip to El Paso, although she had seen him around. Silva stated that

the three of them were looking for something different to do and Castaneda

suggested driving to El Paso. Silva testified that Castaneda thought he could

borrow a car and offered to do the driving. The next day, Castaneda informed

Silva and Briseno-Mendez that he had a car and would like to leave that night.

That evening, Castaneda, who was driving the borrowed car, followed Silva to her

daughter’s house. Silva left the truck she was driving at her daughter’s house and

they departed in the car Castaneda had borrowed.

      Silva testified that when they arrived in El Paso, Castaneda paid for a motel

room. They rested and then went out to dinner. Later, Briseno-Mendez and

Castaneda left for a short period to get beer, but otherwise Silva, Briseno-Mendez

and Castaneda remained in the motel room. Silva testified that because they did

not have much money, they decided to return to Bell the following day. Silva

denied that she and Castaneda crossed the Mexican border.




                                         -9-
      Silva further testified that when they stopped at the checkpoint on their way

back to Bell, Castaneda initially told the agent that they were all United States

citizens. Silva also testified that Castaneda told Agent Lugo the car belonged to

his girlfriend. Silva testified that she was asked by an agent if the car belonged to

friend and answered in the affirmative because she thought the agent was

referring to Castaneda, whom she considered a friend. However, Silva also

testified that she did not recall telling agents that she had borrowed the car from a

friend. On cross-examination, Silva again denied that she had obtained the car

and insisted that Castaneda had provided the car. Silva also denied telling Agent

Romero that it was her idea to go to El Paso, claiming instead that it was

Castaneda’s idea. She further denied knowledge of the cocaine.

      Briseno-Mendez did not testify.

                                   SEVERANCE

      Castaneda and Briseno-Mendez argue that the district court erred in

denying their motions for severance. The decision to grant or deny a motion to

sever is within the sound discretion of the trial court and will not be disturbed on

appeal absent a showing of abuse of discretion. See United States v. Rodriguez-

Aguirre, 

, 1233 (10th Cir. 1997). Severance should be granted by

the district court, pursuant to Rule 14 of the Federal Rules of Criminal Procedure,

“only if there is a serious risk that a joint trial would compromise a specific trial


                                         -10-
right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Zafiro v. United States, 

, 539

(1993); accord United States v. Youngpeter, 

, 353 (10th Cir. 1993).

On appeal, it is not enough for a defendant to show severance would have

improved his chances of acquittal; instead, a defendant bears the burden of

making a “strong showing” of “real prejudice.” United States v. Dirden, 

, 1140 (10th Cir. 1994) (internal quotations omitted).

      Castaneda and Briseno-Mendez argue that the defenses presented at trial

were mutually antagonistic. “Severance may be necessary if the defenses are ‘so

antagonistic that they are mutually exclusive.’” 

(quoting

United States v. Esch, 

, 538 (10th Cir. 1987)). The mere fact that

“defense theories conflict” or that “one defendant is attempting to cast blame on

the other,” however, is insufficient to warrant a severance. 

defenses are not prejudicial per se.” 

.

Rather, to establish prejudice, “[t]he defenses truly must be mutually exclusive,

such that the jury could not believe the core of one defense without discounting

entirely the core of the other.” 

; see also United States v.

Linn, 

, 992 (10th Cir. 1994).

      In this case, all three defendants argue that they did not have knowledge of

the drugs in the car. Silva attempted to place the blame for the drugs on


                                        -11-
Castaneda, while Castaneda tried to implicate Silva and, by his association with

Silva, Briseno-Mendez. Both Castaneda and Briseno-Mendez argue that they

should have been granted severance based on the conflict between Castaneda’s

and Silva’s defenses. 3

      During closing argument, counsel for Castaneda argued that “Angel

Castaneda was set up by Emily Silva, and the government didn’t care.”

Castaneda’s attorney argued that Silva paid him to drive her to El Paso and that

during the trip, Silva had him drive her across the border to Mexico, where the

jurors could infer she picked up the cocaine. Castaneda’s counsel further

suggested that Briseno-Mendez knew about and was a part of Silva’s plan.

      Counsel for Silva, on the other hand, argued that Silva’s guilt depended on

whether the jurors believed Castaneda’s testimony and argued that Castaneda’s

testimony should not be believed. In closing argument, Silva’s counsel accused


      3
       Castaneda’s counsel suggested in closing arguments that Briseno-Mendez
was involved in Silva’s plan to transport drugs. Briseno-Mendez’s closing
argument did not attempt to shift blame to Castaneda, as Silva’s did, but rather
focused on the lack of evidence against Briseno-Mendez and on Briseno-
Mendez’s intoxication and suggested as an alternative theory that the two
individuals who sold the car were involved in a conspiracy to transport drugs. On
appeal, however, Briseno-Mendez argues that the conflict between Castaneda’s
and Silva’s defenses prejudiced him. Briseno-Mendez argues that if the jury
believed Castaneda, it would have precluded his acquittal, and that if the jury
believed Silva, it would have precluded Castaneda’s acquittal while requiring
Briseno-Mendez’s acquittal. Briseno-Mendez further asserts that it is likely the
jurors unjustifiably inferred the guilt of all three defendants based on the conflict
between Castaneda’s and Silva’s defenses.

                                        -12-
Castaneda of lying, referencing his statement to Agent Lugo that he was a U.S.

citizen, his statements regarding the source of the car, and his testimony about the

trip to Mexico. Silva’s counsel further suggested that Castaneda knew about the

cocaine, was being paid to transport it, and used Silva and her boyfriend as cover.

      While Castaneda and Silva were clearly attempting to shift blame for the

cocaine, their defenses were not so inconsistent that to accept the core of one

defense the jury had to discount entirely the other. In essence, both Castaneda

and Silva were arguing they had no knowledge of the drugs. While each

suggested the other’s involvement, neither directly implicated the other. Silva,

for instance, testified that the trip to El Paso was Castaneda’s idea and that he

borrowed the car, but she did not testify that Castaneda knew about the cocaine or

that he was otherwise engaged in criminal activity.

      Castaneda’s testimony, if believed, was slightly more damaging toward

Silva. He not only testified that the trip was Silva’s idea and that she paid him to

drive her to El Paso, but he also testified that Silva had made calls from the hotel

room and that she had instructed him to drive to Mexico, where they left the car

for a short time with two men. Still, Castaneda did not testify that Silva knew

about the cocaine or that cocaine was actually placed in the car during their stop.

Nor did Castaneda directly implicate Briseno-Mendez.




                                         -13-
      Because Castaneda’s and Silva’s testimony was inconsistent, it was not

possible for a reasonable juror to fully believe both Castaneda and Silva. A juror,

however, could believe the core of both of their defenses, namely that they did not

have knowledge of the cocaine. Acquittal of Silva therefore did not preclude

acquittal of Castaneda, nor did acquittal of Castaneda preclude acquittal of Silva

and Briseno-Mendez. Mere finger pointing by a codefendant is insufficient to

warrant severance. See 

(rejecting petitioner’s

argument that severance must be granted when “two defendants both claim they

are innocent and each accuses the other of the crime”); 

(holding severance not warranted when defendants argued their co-defendants

committed arson and that they had nothing to do with the fire).

      Castaneda and Briseno-Mendez further argue that any prejudice resulting

from the joinder was enhanced by differing degrees of culpability among the three

co-defendants. 4 “The mere fact that one co-defendant is less culpable than the

remaining co-defendants is not alone sufficient grounds to establish a trial court

abused its discretion in denying a severance.” 

;

accord United States v. Williams, 

, 1484 (10th Cir. 1995). In this


      4
       Briseno-Mendez also argues that the district court’s failure to grant him
severance resulted in a denial of his Sixth Amendment confrontation rights
because of the limitations placed on his cross-examination of co-defendant
Castaneda. As discussed below, the limitations placed on the cross-examination
of Castaneda did not violate Briseno-Mendez’s confrontation rights.

                                        -14-
case, the differing degrees of culpability did not compromise a specific trial right

of either Castaneda or Briseno-Mendez, nor did it prevent the jurors from making

reliable judgments about guilt or innocence. See 

.

This case was not so factually complex as to limit the jury’s ability to separate the

evidence against each defendant, nor was there such a dramatic difference in the

strength of the government’s cases against co-defendants that spillover was likely.

Cf. 

(noting that in complex cases, “markedly different

degrees of culpability” among co-defendants heightens the risk that prejudice will

result from joint trial); 

-93 (holding in “simple conspiracy

case involving a few actors and a straightforward set of events . . . . [t]he

concerns justifying severance based upon differing degrees of culpability are

simply not present”).

      Finally, the district court properly instructed the jury that it must find guilt

beyond a reasonable doubt and that “[t]he case of each defendant and the

evidence pertaining to that defendant should be considered separately and

individually. The fact that you may find one of the defendants guilty or not guilty

should not control your verdict as to any other defendant.” Further, the jurors

were instructed that they “may not infer that the defendant was guilty of

participating in criminal conduct merely from the fact that he associated with

other people who were guilty of wrongdoing” and that “mere presence at the


                                          -15-
scene of a crime and knowledge that the crime is being committed are not

sufficient to establish that a defendant either directed or aided and abetted the

crime unless [they] find beyond a reasonable doubt that the defendant was a

participant and not merely a knowing spectator.” These limiting instructions

sufficed to cure any possibility that the defendants were prejudiced by the joint

trial. See 

; United States v. Emmons, 

,

1219 (10th Cir. 1994).

      Castaneda and Briseno-Mendez have failed to demonstrate that they were

prejudice by the joint trial. The district court therefore did not abuse its

discretion in denying Castaneda’s and Briseno-Mendez’s motions for severance.

                          CONFRONTATION RIGHTS

      Silva and Briseno-Mendez claim the district court violated their Sixth

Amendment right to confrontation by prohibiting cross-examination of co-

defendant Castaneda regarding his prior arrests and convictions on narcotics

charges after he testified that he had no knowledge of the drugs or why he and




                                         -16-
Silva traveled to Juarez. 5 They argue that this limitation denied them the

opportunity to effectively attack Castaneda’s credibility and truthfulness.

      The ultimate question of whether improper restrictions on cross-

examination were so severe as to constitute a violation of a defendant’s

confrontation rights is reviewed de novo. See United States v. Pedraza, 

, 1529 (10th Cir. 1994). Evidentiary matters and the extent of cross-

examination with respect to appropriate subjects, however, are within the sound

discretion of the trial court. See United States v. Ruiz-Castro, 

, 1528

(10th Cir. 1996). This court has therefore held that a district court decision

excluding cross-examination regarding a witness’ prior criminal record is

reviewed for abuse of discretion and “should be set aside on appeal only if the

trial court’s decision reflects an arbitrary, capricious, whimsical, or manifestly

unreasonable judgment.” 

omitted).

      Silva and Briseno-Mendez repeatedly argued, both during trial and in their

motion for a new trial, that Castaneda’s prior record should be admitted pursuant

to Rules 405 and 406 of the Federal Rules of Evidence and that the district court’s


      5
        Before trial, the United States filed a Notice of Intention to Use Evidence
of Other Crimes or Bad Acts as to defendant Castaneda pursuant to Rule 404(b)
of the Federal Rules of Evidence. Castaneda subsequently sought a pre-trial
ruling excluding the introduction of his prior arrests and convictions under Rules
404(b) and 609 of the Federal Rules of Evidence. Concluding that the prejudicial
effect of Castaneda’s prior convictions outweighed their probative value, the
district court ordered exclusion of the prior convictions under both rules.

                                         -17-
failure to admit the evidence impermissibly infringed on their confrontation

rights. Neither evidentiary rule supports the admissibility of Castaneda’s prior

convictions and arrests.

       Rule 405 permits specific instances of a person’s conduct to be offered as

character evidence when “character or a trait of character of a person is an

essential element of a charge, claim, or defense.” Fed. R. Evid. 405(b). “The

rule deals only with allowable methods of proving character, not with the

admissibility of character evidence, which is covered in Rule 404.” Fed. R. Evid.

405 advisory committee’s note. In this case, Silva and Briseno-Mendez have not

demonstrated that Castaneda’s character was an essential element of the charges

or defense, nor have they addressed Rule 404's general prohibition on using

character evidence to prove action in conformity therewith. See Fed. R. Evid.

404(a). Evidence of Castaneda’s prior criminal acts was therefore not admissible

under Rule 405.

      Rule 406, which allows evidence of habit or routine practice to prove

conduct is in conformity therewith, is similarly inapplicable. See Fed. R. Evid.

406. Silva and Briseno-Mendez argued at trial and in their motion for a new trial

that Castaneda’s seven page “rap sheet” dealing with narcotics convictions and

arrests was evidence of a habit. The advisory committee notes to Rule 406 of the

Federal Rules of Evidence, however, define “habit” as a “person’s regular


                                        -18-
practice of meeting a particular kind of situation with a specific type of conduct,

such as the habit of going down a particular stairway two stairs at a time, or of

giving the hand-signal for a left turn . . . . The doing of the habitual acts may

become semi-automatic.” Fed. R. Evid. 406 advisory committee’s note. Nothing

reflected in Castaneda’s rap sheet constitutes a habit for purposes of Rule 406.

      The district court therefore did not err in denying the admission of

Castaneda’s prior convictions on the evidentiary bases argued by Silva and

Briseno-Mendez during the trial. Nor did the district court abuse its discretion in

determining that the prejudicial effect of Castaneda’s prior convictions

outweighed their probative value. The risk of the jury improperly inferring guilt

from Castaneda’s prior drug offenses was great. The probative value of the prior

offenses, however, was limited. Castaneda’s past criminal history did not directly

reflect on his claim that he had no knowledge of the drugs in this instance, nor

did Silva or Briseno-Mendez argue his past crimes were the type that involved

dishonesty or false statements. The trial court’s decision to exclude Castaneda’s

prior offenses therefore was not arbitrary, capricious, whimsical, or manifestly

unreasonable.

      Nor were the limitations placed on the cross-examination of Castaneda so

great as to amount to a violation of Silva’s and Briseno-Mendez’s confrontation

rights. While the Sixth Amendment “guarantees an opportunity for effective


                                          -19-
cross-examination,” it does not guarantee a “cross-examination that is effective in

whatever way, and to whatever extent, the defense might wish.” Delaware v.

Fensterer, 

, 20 (1985) (emphasis in original); accord 

. “Our duty in reviewing the adequacy of the cross-examination is to

determine whether the jury had sufficient information to make a discriminating

appraisal of the witness’ motives and bias.” United States v. Sinclair, 

, 1537 (10th Cir. 1997) (internal quotations omitted).

      Silva and Briseno-Mendez had ample opportunity to attack Castaneda’s

credibility. It was readily apparent that Castaneda, as a co-defendant, had motive

to shift blame from himself to Silva and Briseno-Mendez. Castaneda’s testimony

at trial was inconsistent with what checkpoint agents testified he told them during

the stop. His testimony regarding the trip to Mexico was internally inconsistent 6

and not corroborated by a 72-hour lane check conducted by agents to determine

whether the vehicle had crossed the United States-Mexico border. The jurors

were thus presented with sufficient information to assess Castaneda’s motives and

biases. The exclusion of Castaneda’s prior convictions and arrests therefore did

not violate Silva’s and Briseno-Mendez’s confrontation rights.



      6
        On direct examination, Castaneda testified that he would not know the two
men who were present when he and Silva exited the car in Mexico, “even if [he]
look[ed] at them in a picture.” On cross-examination, however, Castaneda
testified that if he saw a picture, he would “know who they are.”

                                        -20-
                                     SEARCH

       Castaneda argues the district court erred in denying his motion to supress.

In reviewing a district court’s ruling on a motion to suppress, this court accepts

the district court’s factual findings unless they are clearly erroneous and views the

evidence in the light most favorable to the district court’s findings. See United

States v. Toro-Pelaez, 

, 824 (10th Cir. 1997). The ultimate

determination of whether the challenged conduct is reasonable under the Fourth

Amendment, however, is a question of law which we review de novo. See 

that his continued detention at the immigration

checkpoint, after agents determined he was legally in the United States, was

unlawful. Castaneda argues that Agent Lugo’s request to search the car, which

occurred after Lugo determined Castaneda was a resident alien, was “outside the

scope of permissible routine questioning and not based upon a showing of

reasonable suspicion.” Castaneda further contends that any consent he gave to

search the vehicle was not voluntary, knowing, or intelligent. He concludes that

because his continued detention and the subsequent search were not justified by

reasonable suspicion, the district court erred in not granting his motion to

supress. 7



       The government argues that Castaneda lacks standing to challenge the
       7

search of the car because he has not demonstrated he had any legitimate
expectation of privacy in the car. The government notes that Castaneda

                                        -21-
      At fixed checkpoints, border patrol agents may briefly detain and question a

person without any individualized suspicion that the person is engaged in criminal

activity. See United States v. Martinez-Fuerte, 

, 562 (1976); United

States v. Massie, 

, 847 (10th Cir. 1995). The Fourth Amendment

protects an individual’s liberty interests at fixed checkpoints by limiting the scope

of the stop. See 

; United States v. Rascon-

Ortiz, 

, 752 (10th Cir. 1993). “A routine checkpoint stop must be

brief and unintrusive.” 

.

      During a routine fixed-checkpoint stop, agents may inquire into an

individual’s citizenship or immigration status and request documentation; may

make a cursory visual inspection of the vehicle; and may briefly question an

individual “concerning such things as vehicle ownership, cargo, destination, and

travel plans,” so long as such questions are “reasonably related to the agent’s duty

to prevent the unauthorized entry of individuals into this country and to prevent

the smuggling of contraband.” Id.; accord 

. In

addition, if an agent observes “suspicious circumstances” during a routine stop,

“the agent may briefly question the motorist concerning those suspicions and ask



consistently claimed the car was not his. Even when a defendant lacks standing to
directly challenge the search of a vehicle, the defendant may still seek
suppression of evidence discovered in the vehicle if the evidence is the fruit of
the defendants’ unlawful detention. See United States v. Shareef, 

,
1500 (10th Cir. 1996).

                                        -22-
the motorist to explain.” 8 

; accord 

.

      Any detention beyond the scope of a routine checkpoint stop, however,

must be based on reasonable suspicion, probable cause, or consent. See Martinez-

; 

. While a visual inspection

of a vehicle is permissible as part of a routine checkpoint stop, Agents may not

search vehicles stopped at a checkpoint in the absence of probable cause or

consent. See 

.

      In the instant case, the district court found that at the checkpoint Castaneda

originally claimed that he, Briseno-Mendez, and Silva were United States

citizens. Upon subsequent questioning, Castaneda admitted that he was not a

United States citizen, but a resident alien. This prompted further questioning,

which resulted in the discovery that Briseno-Mendez was in the country illegally.

The district court further found that “[w]hile the defendant Castaneda was out of



      8
       While there is no single definition of “suspicious circumstances,” this
court has held that suspicious circumstances need not meet the more rigid
“reasonable suspicion” standard. See United States v. Massie, 

, 848
(10th Cir. 1995); United States v. Rascon-Ortiz, 

, 753 n.6 (10th Cir.
1993); United States v. Sanders, 

, 1500 (10th Cir. 1991). In
determining whether suspicious circumstances exist, this court applies “‘a
common sense view of the totality of the circumstances.’” 

(quoting 

). “[S]ome deference is properly given to
border patrol agents who . . . are specifically trained to look for indicia of crime,
with an emphasis on immigration and customs laws.” 

.

                                        -23-
the vehicle, within less than five minutes of having arrived at the check stop, he

was asked and consented to a search of the vehicle.” These factual findings,

which are supported by Agents Lugo’s testimony during the hearing on the motion

to suppress, are not clearly erroneous.

      The questions concerning the citizenship status of the defendants were

clearly within the scope of permissible, routine questioning during a checkpoint

stop. The matter Castaneda challenges as beyond the scope of routine questioning

is the request for consent to search the car, which occurred after agents had

satisfied their concerns about his immigration status. The request for consent to

search the car was permissible. The request was directly related to agents’ duty to

prevent the smuggling of contraband. The fact that the defendants were initially

referred to a secondary inspection area because of concerns about their citizenship

status does not prevent agents from investigating other suspicious circumstances.

See 

. In this case, Castaneda’s misrepresentation of his and

Briseno-Mendez’s citizenship status created suspicious circumstances; the brief

questioning that occurred and the request to search the vehicle were well within

the permissible scope of questioning when suspicious circumstances are observed

during a routine stop.

      Castaneda also challenges the voluntariness of his consent. “Consent to

search is voluntary if it is not the product of duress or coercion, express or


                                          -24-
implied.” United States v. Espinosa, 

, 892 (10th Cir. 1986) (internal

quotations omitted). The “voluntariness” of consent is a factual question to be

determined from the totality of the circumstances. See 

his consent was not voluntary, knowing, or intelligent

because, at the time Agent Lugo requested his permission to search the car,

Castaneda had already been stopped and detained; Briseno-Mendez had already

been arrested; Agent Lugo was wearing sunglasses and had both a firearm on his

left side and a side handle baton; Agent Lugo was accompanied by three other

agents, all of whom were dressed in green uniforms and carrying sidearms and

side handle batons; and Castaneda was not informed of his right to decline

consent. Castaneda, however, does not allege that the agents threatened him. At

the hearing on the motion to supress, Agent Lugo testified that when he requested

permission to inspect the vehicle more closely, Castaneda replied, “Go ahead.

This is not my car.” At trial, Castaneda himself testified that when an agent

asked for his permission to search the car, he told the agent, “Go ahead. I don’t

got nothing in here, you know.” The mere presence of uniformed agents with

sidearms and side handle batons did not render Castaneda’s consent involuntary.

Nor does the evidence indicate that threats, promises, or force were used to obtain

the consent. See 

court’s finding that Castaneda consented to the

search is therefore not clearly erroneous.


                                        -25-
      Further, this court has held that when defendants are lawfully detained,

consent for a dog sniff is not required. See 

(holding

consent not required for dog sniff during checkpoint stop when defendants were

lawfully detained based on suspicious circumstances). Even in the absence of

Castaneda’s consent, therefore, the dog sniff was permissible as part of a brief

investigation into suspicious circumstances observed during the checkpoint stop.

See 

dog alerted, agents had probable cause to search the car, making

Castaneda’s consent unnecessary for the search of the car’s interior and his

continued detention during the search. See 

court therefore did not err in denying Castaneda’s motion to

suppress.

                        INTOXICATION INSTRUCTION

      Briseno-Mendez argues the district court erred by failing to instruct the jury

that voluntary intoxication may negate the requisite specific intent 9 for a

conspiracy conviction. 10 “A defendant is entitled to correct instructions on

      9
       Conspiracy to distribute a controlled substance is a specific intent crime.
See United States v. Merriweather, 

, 1078 (6th Cir. 1996). A
defendant is not guilty of a specific intent offense if voluntary intoxication
prevented the defendant from forming the requisite specific intent. See United
States v. Sands, 

, 1064 (10th Cir. 1992); see also United States v.
Boyles, 

, 541 (7th Cir. 1995); United States v. Echeverry, 

, 1454 (9th Cir. 1985).
      10
        Jurors were given a voluntary intoxication instruction as to the possession
with intent to distribute count.

                                         -26-
defenses supported by sufficient evidence for a jury to find in [the] defendant’s

favor.” United States v. Davis, 

, 1492 (10th Cir. 1992); see also

United States v. Simmonds, 

, 688-89 (10th Cir. 1991); United States

v. Prazak, 

, 154 (10th Cir. 1980). District courts, however, have

substantial discretion in formulating jury instructions; this court’s review is

confined to determining whether the instructions, considered as a whole,

sufficiently cover the issues presented by the evidence and constitute correct

statements of the law. See 

.

      The evidence in the record is insufficient to necessitate an intoxication

instruction on the conspiracy count. To be entitled to an intoxication instruction

there must be evidence that a defendant’s intoxication prevented him from

forming the requisite intent required for a conviction. See United States v.

Boyles, 

, 542 (7th Cir. 1995).

      “A bald statement that the defendant had been drinking or was drunk
      is insufficient--insufficient not because it falls short of the quantum
      of evidence necessary, but because it is not evidence of the right
      thing. In order to merit an intoxication instruction . . . the defendant
      must point to some evidence of mental impairment due to the
      consumption of intoxicants sufficient to negate the existence of the
      [specific] intent[.]”

ellipses in original) (quoting State v. Strege, 

,

105 (Wis. 1984)).




                                         -27-
      There is evidence that Briseno-Mendez drank during the trip and may have

been either intoxicated or hungover at the time of his arrest. There is testimony

that Briseno-Mendez and Castaneda drank beer the evening before they were

arrested, as well as the day the trip was first discussed. Silva testified that

Briseno-Mendez was a “drinker” and that he had a hangover at the checkpoint.

At the time of his arrest, agents asked Briseno-Mendez only for biographical

information, rather than conducting a full interview, due at least in part to agents’

concern that he was intoxicated. Agent Romero testified that he smelled a strong

odor of alcohol on Briseno-Mendez and that Briseno-Mendez told him that he had

consumed approximately two quarts of beer during the drive from El Paso to the

checkpoint. Agent Romero, however, stated that he could not tell whether or not

Briseno-Mendez was intoxicated or merely impaired. Agent Lugo described

Briseno-Mendez as glassy-eyed. Agent Lugo, however, testified Briseno-Mendez

appeared to understand his questions, did not have problems communicating, and

did not have difficulty walking. Agent May did not recall smelling alcohol on

Briseno-Mendez and testified that Briseno-Mendez had no problem answering

biographical questions.

      While this evidence was sufficient to show that Briseno-Mendez was

drinking, it does not warrant an intoxication instruction. The alleged conspiracy

extended from September 10, 1995 to September 12, 1995. During that time


                                          -28-
period, the defendants drove from Bell to El Paso, spent a night in El Paso, and

began the return trip to California. Contrary to Briseno-Mendez’s contention on

appeal, the evidence does not show Briseno-Mendez was drinking “the entire

time,” much less that he was so intoxicated during the three-day period as to be

unable to form the requisite intent for a conspiracy conviction. At best, the

evidence shows Briseno-Mendez drank the evening before his arrest and was

either drunk or had a hangover at the time of his arrest. Even assuming that

Briseno-Mendez had been drinking the previous evening and was drunk at the

time he was arrested, a voluntary intoxication instruction was not required

because there was no evidence his intoxication created a mental impairment

sufficient to negate the existence of specific intent. See 

intoxication instruction not required when defendant, although inebriated at time

of offense, failed to present evidence that his degree of inebriation made him

incapable of forming requisite intent or resulted in suspension of his power to

reason); see also 

(“[T]here need be no instruction on a

defendant’s theory of defense where there is no support therefor in the evidence

or the law.”). The district court therefore did not err in refusing Briseno-

Mendez’s request for a voluntary intoxication instruction on the conspiracy count.




                                         -29-
                         SUFFICIENCY OF EVIDENCE

      Briseno-Mendez contends that the evidence was insufficient to sustain his

conviction on both the possession and conspiracy counts and Castaneda

challenges the sufficiency of the evidence to support his conspiracy conviction.

In determining the sufficiency of the evidence, this court reviews the record de

novo and “ask[s] only whether, taking the evidence--both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom--in

the light most favorable to the government, a reasonable jury could find the

defendant guilty beyond a reasonable doubt.” United States v. Owens, 

, 1126 (10th Cir. 1995) (internal quotations omitted). This court will not

reverse a jury’s guilty verdict for insufficient evidence unless “no reasonable

juror could have reached the disputed verdict.” 

omitted).

      To obtain a conviction for possession of narcotics with intent to distribute,

the government must establish beyond a reasonable doubt that the defendant

(1) knowingly possessed the illegal drug and (2) had the specific intent to

distribute it. See United States v. Carter, 

, 1440 (10th Cir. 1997).

Possession may be actual or constructive. See 

Constructive

possession is established by evidence, either direct or circumstantial, that the

defendant “knowingly holds the power and ability to exercise dominion and




                                         -30-
control over the property.” 

may be joint among

several individuals. See 

for conspiracy, in violation of 21 U.S.C. § 846, requires the

jury to find, beyond a reasonable doubt, “(1) an agreement with another person to

violate the law, (2) knowledge of the essential objectives of the conspiracy, (3)

knowing and voluntary involvement, and (4) interdependence among the alleged

conspirators.” 

An agreement constituting a conspiracy may be

inferred “‘from the acts of the parties and other circumstantial evidence indicating

concert of action for the accomplishment of a common purpose.’” 

States v. Johnson, 

, 1319 (10th Cir. 1994)). Mere association

with coconspirators or mere proximity to illegal activity, while material and

probative, are insufficient to support a conspiracy conviction. See United States

v. Ivy, 

, 1285 (10th Cir. 1996); United States v. Jones, 

,

865-66 (10th Cir. 1995); United States v. Riggins, 

, 994 (10th Cir.

1994).

         Additionally, a defendant who aids and abets the commission of a crime is

punishable as a principle. See 18 U.S.C. § 2(a). In order to establish guilt as an

aider and abetter, the government must show that the defendant willfully

associated himself with the criminal venture and sought to make the venture




                                          -31-
succeed through some act of his own. See United States v. Leos-Quijada, 

, 794 (10th Cir. 1997).

      A. Sufficiency of Evidence to Convict Briseno-Mendez

      Briseno-Mendez maintains that the only evidence presented by the

government to establish he was in possession of the cocaine was his presence in

the vehicle. Mere presence in a vehicle containing narcotics is insufficient to

support a conviction for either possession of narcotics or conspiracy to possess

narcotics. See 

, 869-70 (holding defendant’s presence

in vehicle containing cocaine coupled with evidence that she suspected illegal

activity was insufficient to support possession and conspiracy convictions); see

also United States v. Reece, 

, 996-97 (10th Cir. 1996) (holding

driver’s dominion over vehicle in which contraband was found and proximity to

contraband was insufficient to support possession conviction when there was

more than one person who could be in possession of contraband); 

(holding that even if defendant knew her mother and sister were

hiding drugs in van, defendant’s presence in van was insufficient to support

conspiracy conviction).

      In the instant case, however, the evidence showed more than Briseno-

Mendez’s mere presence in the vehicle. Briseno-Mendez accompanied Silva and

Castaneda on a 800-mile trip from Bell to El Paso. The three defendants stayed in


                                        -32-
El Paso only one night before beginning the return trip to Bell. Agents found no

toiletries in the car which would be consistent with a pleasure trip and defendants

did not see any sights during their stay in El Paso, despite Castaneda’s and Silva’s

claim that they just wanted to see what El Paso was like. The Bondo covering the

trap door to the compartment where the cocaine was found was still fresh,

indicating that the cocaine had been in the vehicle only a day or two, a time

period which coincides with defendants’ three-day trip.

      While the modifications to the car were not necessarily apparent from the

outside, Agent May testified that the modifications were “very evident” from

inside the car. Agents testified that the carpet covering the trap door “appeared to

be almost new.” Upholstery shop business cards and a toilet bowl deodorizer

were recovered from the floorboard of the passenger sear where Briseno-Mendez

was sitting and the car was filled with the masking odor of coffee and

deodorizers. Jurors could thus infer Briseno-Mendez was aware of the cocaine.

      Additionally, Wendy Farrier, the previous owner of the vehicle in which the

cocaine was found, testified that while she was not certain, Briseno-Mendez

looked “familiar,” like one of the two men who was present during the purchase

the vehicle. Farrier’s boyfriend, who was present during the sale, was not able to

positively identify Briseno-Mendez, but testified that Briseno-Mendez’s and

Castaneda’s age, height, weight, and national origin fit the description of the two


                                        -33-
men who had accompanied the purchaser of the vehicle. Finally, while

Castaneda’s testimony was internally inconsistent, Castaneda testified on direct

examination that on the day he and Silva were driving around near the border,

Silva called Briseno-Mendez, who had stayed at the motel, and Briseno-Mendez

instructed Silva to go into Mexico. 11 Castaneda also testified that either he or

Briseno-Mendez were behind the wheel during the drive to El Paso.

      This evidence is sufficient to support an inference that Briseno-Mendez had

joint constructive possession of the cocaine found in the vehicle or, in the

alternative, that Briseno-Mendez willfully joined the criminal venture and took

actions to aid the possession of the cocaine.

      Briseno-Mendez also challenges the sufficiency of evidence to support his

conspiracy conviction. He argues that the only evidence of his participation in

the conspiracy was Castaneda’s testimony that Silva made a phone call to him and

that he instructed Silva and Castaneda to go across the border to Mexico.

Briseno-Mendez contends that this testimony is insufficient because it is

inconsistent with other testimony by Castaneda and is it not supported by any of

the other evidence presented at trial. Additionally, Briseno-Mendez argues that


      11
        During cross examination, Castaneda testified that Briseno-Mendez did
not direct him to cross the border and that Briseno-Mendez did not know how to
talk on the phone. In reviewing the sufficiency of evidence, however, this court
accepts the jury’s resolution of conflicting evidence and its credibility
assessments. See United States v. Owens, 

, 1126 (10th Cir. 1995).

                                         -34-
because his status as an illegal alien ultimately led to the demise of the plan,

interdependence is not present. These arguments lack merit.

      The three defendants traveled 800 miles from Bell to El Paso, spent only

one night in El Paso before beginning the return trip to Bell, and were arrested

when agents found cocaine in a freshly sealed hidden compartment of their car.

This evidence is sufficient to support an inference that Briseno-Mendez, Silva,

and Castaneda agreed to possess cocaine with intent to distribute. The

government introduced evidence that the alterations to the vehicle were “very

evident” from inside the car. This evidence, along with Briseno-Mendez’s

presence during the highly suspicious three-day trip, is sufficient to support the

conclusion that Briseno-Mendez had knowledge of the essential objectives of the

conspiracy.

      Briseno-Mendez’s knowing and voluntary involvement could be inferred

from his participation in the three-day trip to El Paso. The nature of the trip was

such that jurors could reasonably infer the sole purpose of the trip was to acquire

cocaine and that Briseno-Mendez’s involvement in the trip was thus evidence of

more than mere proximity to illegal activity. Additionally, jurors could infer

Briseno-Mendez’s participation in the conspiracy from evidence that he was

present when the car was purchased and from Castaneda’s testimony that Briseno-

Mendez instructed Silva to go to Mexico. While Briseno-Mendez argues that this


                                         -35-
evidence is not credible, when viewed in the light most favorable to the

government and in conjunction with the other evidence presented at trial, it is

sufficient to support a finding that Briseno-Mendez was knowingly and

voluntarily involved in the conspiracy.

      Finally, the evidence is sufficient to support an inference that the

coconspirators were interdependent. This court rejects Briseno-Mendez’s

contention that there was no interdependence because his status as an illegal alien

led to the conspiracy’s demise. There is no evidence that the defendants knew

they would pass through an immigration checkpoint. Furthermore, even if the

defendants had known about the checkpoint, there is no evidence that they

thought they would have problems getting through it. Jurors could infer from

Castaneda’s initial lie about Briseno-Mendez’s citizenship status and Briseno-

Mendez’s silence that the two were working together to bluff their way through

the checkpoint.

      There is thus sufficient evidence to sustain Briseno-Mendez’s possession

and conspiracy convictions.

      B. Sufficiency of Evidence to Convict Castaneda

      Castaneda also challenges the sufficiency of evidence supporting his

conspiracy conviction. He argues that because he was acquitted on the possession

count, his conviction for conspiracy “must be reversed as it was essential to the


                                          -36-
conviction for conspiracy that Castaneda possess the cocaine.” He further

contends that the only evidence presented by the government to support his

conviction was his presence in the vehicle containing cocaine.

      This court need not address Castaneda’s argument that his conviction for

conspiracy was inconsistent with his acquittal on the possession count.

“Consistency in the verdict is not necessary.” Dunn v. United States, 

, 393 (1932); see also United States v. Powell, 

, 62-64 (1984)

(reaffirming rule established by Dunn); United States v. Jaynes, 

,

1508-09 (10th Cir. 1996) (upholding conspiracy conviction despite defendant’s

acquittal of aiding and abetting substantive offenses). This court’s review is thus

limited to determining whether there was sufficient evidence to support




                                        -37-
Castaneda’s conspiracy conviction. 12 See Powell, 469 US. at 67; 

.

      Contrary to Castaneda’s assertions, there was ample evidence to support his

conviction. Much of the evidence supporting Briseno-Mendez’s conviction also

supports Castaneda’s conviction. Like Briseno-Mendez, Castaneda was a

participant in a highly suspicious three-day trip. From evidence that the Bondo

was still fresh, jurors could infer that the cocaine was placed in the vehicle during

the trip. As discussed above, the evidence that the modifications to the car were

apparent from the inside is sufficient to support an inference that the passengers

in the vehicle knew the cocaine was present. Furthermore, Farrier’s boyfriend

testified that Castaneda and Briseno-Mendez fit the description of two of the

persons who were present when the vehicle was purchased.


      12
         In a footnote of his brief, Castaneda argues that no factual scenario would
support the inconsistent verdicts. He contends that the jurors did not believe he
had knowledge of the cocaine and that they misunderstood the conspiracy
instruction. He therefore requests this court grant him an opportunity to
supplement the record and remand the case for an evidentiary hearing, including
an examination of the jurors. In United States v. Powell, 

(1984), the
Supreme Court rejected as “imprudent and unworkable, a rule that would allow
defendants to challenge inconsistent verdicts on the ground that in their case the
verdict was not the product of lenity, but of some error that worked against
them.” 

The Court noted that “with few exceptions, once the jury has
heard the evidence and the case has been submitted, the litigants must accept the
jury’s collective judgment. Courts have always resisted inquiring into a jury’s
thought processes; through this deference the jury brings to the criminal process .
. . an element of needed finality.” 

(internal citations omitted). This
court therefore denies Castaneda’s request for an evidentiary hearing.

                                        -38-
      In addition, checkpoint agents testified that Castaneda lied about his and

Briseno-Mendez’s citizenship status; that Castaneda originally claimed he had

borrowed the car from one of his girlfriends and changed his story after cocaine

was found; and that Castaneda told them he had traveled from Bell to El Paso,

spending only one night in El Paso, just to get away from Bell and to see what El

Paso was like. At trial, however, Castaneda testified to a different version of

events. He claimed that the car had come from Silva’s daughter; that he drove all

night, completely exhausted, because Silva had offered him an undisclosed

amount of money; and that he never lied about his or Briseno-Mendez’s

citizenship status. Additionally, there were discrepancies between what

Castaneda told agents he did while in El Paso and his own testimony as to what he

did during the trip. Significantly, Castaneda claimed for the first time at trial that

he and Silva entered Mexico. His testimony regarding the alleged trip to Mexico

was not supported by a 72-hour lane check and was internally inconsistent.

      The above evidence is sufficient to support a finding that Castaneda agreed

with Silva and Briseno-Mendez to possess cocaine, that Castaneda had knowledge

of the essential objectives of the conspiracy, that he voluntarily participated in the

conspiracy, and that the coconspirators were interdependent. Viewed in the light

most favorable to the government, the evidence supports an inference that

Castaneda acquired the vehicle which was used to transport the cocaine, either


                                          -39-
borrowing it from a friend or helping to purchase it. There is also evidence that

the modifications to the vehicle were apparent from inside the car; jurors could

thus infer Castaneda had knowledge of the cocaine. Castaneda did most, if not

all, of the driving and the explanation he offered for the 800-mile trip lacked

credibility. Castaneda’s actions in acquiring the car, driving between Bell and El

Paso, and trying to bluff defendants’ way through the checkpoint helped further

the defendants’ common goal of possessing cocaine with the intent to distribute.

There was thus sufficient evidence to support Castaneda’s conspiracy conviction.

                          SENTENCING GUIDELINES

      A. Minimal Participant

      Castaneda contends the district court erred in failing to find that he was a

“minimal participant” in the conspiracy. He argues that by acquitting him of

possession with intent to distribute cocaine, the jury determined that he played a

minimal role in the conspiracy. Section 3B1.2 of the Sentencing Guidelines

provides a four-level decrease in a defendant’s offense level if the court finds the

defendant was a “minimal participant” in the criminal activity, a two-level

decrease if it finds the defendant was a “minor participant,” and a three-level

decrease if it finds the defendant was more than a minimal participant but less

than a minor participant. See U.S.S.G. § 3B1.2. In determining whether a

defendant is entitled to a reduction under § 3B1.2, courts examine the defendant’s


                                         -40-
culpability relative to that of other participants in the offense. See U.S.S.G.

§ 3B1.2 application notes 1, 3; see also United States v. Williamson, 

, 1524 (10th Cir. 1995).

      Castaneda bears the burden of establishing by a preponderance of the

evidence that he is entitled to an offense level reduction under § 3B1.2. See

. A district court’s decision that a defendant is not a

minor or minimal participant in an offense is a factual finding which this court

reviews only for clear error. See 

finding is clearly erroneous if it is

“without factual support in the record, or if after reviewing the evidence we are

left with the definite and firm conviction that a mistake has been made.” 

omitted).

      Based on our review of the record, this court cannot say the district court’s

finding that Castaneda was neither a minimal nor minor participant in the

conspiracy was clearly erroneous. Castaneda’s acquittal on the possession count

does not require this court to hold otherwise. Jurors were asked to determine

whether or not Castaneda was guilty of the offenses, not to determine his relative

role in each offense. As a consequence, Castaneda’s acquittal on the possession

charge does not necessarily reflect upon his relative participation in the

conspiracy. Nor does Castaneda’s denial of culpability compel a finding that he

was either a minor or minimal participant. As discussed above, there is


                                         -41-
substantial evidence that Castaneda was a knowing participant in the conspiracy

and played a critical role in transporting a large amount of cocaine.

      Finally, even if the district court had found that Castaneda was recruited by

Silva and Briseno-Mendez to act as a courier, it would not be required to grant

him an offense level reduction under § 3B1.2. While commentary to § 3B1.2

suggests that a downward adjustment may be appropriate “where an individual

was recruited as a courier for a single smuggling transaction involving a small

amount of drugs,” U.S.S.G. § 3B1.2 application note 2, this court has firmly

rejected the argument that a defendant’s status as a courier alone compels an

offense level reduction under § 3B1.2. See United States v. Ballard, 

, 1115 (10th Cir. 1994) (“[T]his court has refused to adopt per se rule that

couriers are minor or minimal participants.”); United States v. Carter, 

, 600 (10th Cir. 1992) (discussing indispensable role couriers play); see also

United States v. Montoya, 

, 1249 (10th Cir. 1994) (collecting cases).

Even if Castaneda was involved in the conspiracy solely as a courier, there was

sufficient evidence to support the district court’s conclusion that he was not a

minor or minimal participant, especially in light of the distance traveled and the

quantity of cocaine found in the vehicle. The district court therefore did not err

in denying Castaneda a downward adjustment under § 3B1.2.

      B. Criminal History Category


                                         -42-
      Finally, Castaneda argues that due to numerous substance abuse related

convictions, his criminal history exaggerated his past criminal conduct and his

need to be punished and that the district court therefore should have departed

downward in sentencing him. This court lacks jurisdiction to review a district

court’s discretionary decision not to depart downward absent evidence that the

district court erroneously believed it lacked authority to depart. See United States

v. Belt, 

, 714-15 (10th Cir. 1996). “‘[U]nless the judge’s language

unambiguously states that the judge does not believe he has authority to

downward depart, we will not review his decision.’” 

original)

(quoting United States v. Rodriguez, 

, 1319 (10th Cir. 1994). There

is no evidence that the district court did not believe it had discretion to depart

downward in this case; we therefore do not have jurisdiction to review

Castaneda’s claim.

                                  CONCLUSION

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED.

                                        Entered for the Court,

                                        Michael R. Murphy
                                        Circuit Judge




                                         -43-