IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-40337 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE PONCE-GARCIA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. L-01-CR-991-1 -------------------- December 10, 2002

Before DAVIS, WIENER and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Jose Ponce-Garcia entered a guilty plea to one count of

knowingly transporting an undocumented alien within the United

States. He reserved the right to challenge the district court’s

denial of his motion to suppress. The district court sentenced

Ponce-Garcia to serve twelve months and one day in prison and

three years of supervised release.

Ponce-Garcia contends that the Border Patrol agents did not

have reasonable suspicion to stop the vehicle he was driving.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 02-40337 -2-

We review the district court’s factual findings for clear

error, and its legal conclusions, including whether there was

reasonable suspicion, de novo. United States v. Espinosa-

Alvarado,

, 305 n.1 (5th Cir. 2002). A Border Patrol

agent on roving patrol may stop a vehicle “only if the agent is

aware of specific articulable facts” that support a reasonable

suspicion that the vehicle is being used for criminal activity.

Espinosa-Alvarado,

. We consider the

“‘totality of the circumstances’” in making this determination.

The factors we consider include: (1) the characteristics of

an area, (2) the agent’s experience with criminal activity,

(3) the proximity of the area to the border, (4) the usual

traffic patterns of the road, (5) the recent illegal trafficking

in the area, (6) the behavior of the driver, (7) the appearance

of the vehicle, and (8) the number, appearance and behavior of

the passengers.

No single factor, nor the absence of a

particular factor, controls the conclusion.

Ponce-Garcia’s vehicle activated two road sensors as it

traveled north on a dirt road at 2:00 a.m. The road is located

twenty-two miles from the border and is known as a route that is

used to circumvent a permanent checkpoint. The vehicle was

riding low to the ground despite the number of occupants

visualized. Experienced Border Patrol agents who are familiar

with the area, the sparse traffic that travels that particular

road at that time of day, and the illegal activity that occurs No. 02-40337 -3-

there, and who did not recognize Ponce-Garcia’s vehicle made the

stop. When the agents began following his vehicle, Ponce-Garcia

maneuvered his vehicle onto the shoulder of the road and toward a

fence before driving back onto the road. The evidence

established that persons who are transporting illegal aliens and

who are attempting to evade detection often drive off the road

and into the fence to enable an escape.

The facts viewed in the totality of the circumstances

support the conclusion that the Border Patrol agents had a

reasonable suspicion to make the stop. See Espinosa-Alvarado,

. Accordingly, the judgment of the district

court is AFFIRMED.