          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                   FILED
                                                                December 26, 2007
                               No. 06-11418
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

ALEJANDRO TAMAYO

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:05-CR-313-1


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
      Alejandro Tamayo appeals the sentence imposed following his guilty plea
conviction for conspiracy to possess with the intent to distribute more than 500
grams of methamphetamine. Tamayo argues that the district court erred in
enhancing his sentence by six levels pursuant to U.S.S.G. § 3A1.2(c)(1) based on
a finding that he had reasonable cause to believe he was assaulting law
enforcement officers during the course of the offense. Specifically, Tamayo
contends that the district court employed an improper analysis, finding that he

      *
      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should not be published and is not precedent except under the limited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. 06-11418

should have known the victims of the assault were law enforcement officers.
Tamayo asserts that the facts do not establish he had reasonable cause to believe
the victims of the assault were law enforcement officers, stating that he did not
look out the window of his house or check the surveillance monitor.
      The district court did not clearly err in applying the § 3A1.2(c)(1)
enhancement. See United States v. Zuniga-Amezquita, 468 F.3d 886, 888 (5th
Cir. 2006). The court found Tamayo’s assertions that he did nothing to ascertain
the identity of the persons outside his home to be incredible. Although the court
stated that Tamayo should have looked outside the window if he did not, the
court clearly stated that Tamayo’s claims that he failed to look out the window
or check the surveillance monitor were incredible. Credibility determinations
are within the province of the court. United States v. Sotelo, 97 F.3d 782, 799
(5th Cir. 1996). In addition to these facts, the court also noted that Tamayo was
involved in a large drug conspiracy and faced the possibility of arrest, a fact to
which Tamayo admitted. The court’s reliance on all of these facts provide
sufficient basis to conclude that Tamayo had reasonable cause to believe the
victims were law enforcement officers.
      Accordingly, the judgment of the district court is AFFIRMED.




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