                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           FEB 25 1997
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 96-6207
                                                     (D.C. No. CR-96-6-M)
    RAQUEL HERNANDEZ SALGADO,                            (W.D. Okla.)

                Defendant-Appellant.




                             ORDER AND JUDGMENT *



Before BALDOCK, EBEL, and LUCERO, Circuit Judges.




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

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the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.
      Defendant Raquel Hernandez Salgado appeals from the Guideline sentence

imposed after she pleaded guilty to one count of possession with intent to

distribute marijuana, in violation of 21 U.S.C. § 841(a). She objects to the

district court’s inclusion as relevant conduct of approximately two gallons of

phencyclidine (PCP) seized at the time of her arrest. We exercise jurisdiction

under 18 U.S.C. § 3742(a)(1) and (2), and affirm.

      Defendant was arrested after Oklahoma City police conducted a routine

inspection of a bus arriving from Amarillo, Texas. While passengers were off the

bus, police took luggage out of the overhead rack and placed it in the seats below

to accommodate a drug-sniffing dog. An officer noticed a smell he believed to be

PCP coming from a black Royalton suitcase. As passengers reboarded, defendant

was observed carrying a small black Royalton bag that matched the larger

suitcase. She moved the suitcase out of the seat it was in, placed it in the

overhead rack, placed the smaller bag next to it, and took the seat. Police

reboarded the bus and asked passengers to claim their luggage. Nobody claimed

the large black suitcase, and defendant later disclaimed ownership of the small

bag she had been carrying, too. Police asked defendant to deboard the bus. Both

bags were searched. The suitcase contained approximately two gallons of PCP,

and the smaller bag contained four large bricks of marijuana. A key in

defendant’s purse opened locks on both pieces of luggage.


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      Defendant agreed to plead guilty to one count of possession with intent to

distribute marijuana in violation of 21 U.S.C. § 841(a), if other charges were

dismissed. The district court determined that under Guideline § 1B1.3(a)(2), the

PCP could be considered relevant conduct because defendant possessed it as part

of the same course of conduct as the offense of conviction. Adding the quantity

of PCP to the amount of marijuana, the district court arrived at a sentencing range

of 108 to 135 months’ imprisonment, and sentenced defendant to the statutory

maximum of 60 months’ imprisonment.

      On appeal, defendant contends that the evidence was insufficient to support

the district court’s finding that she possessed the PCP and that, as a result, the

district court erred by including the PCP as relevant conduct in determining her

offense level.

      We review the district court’s finding of fact concerning the amount of

drugs for which defendant could be held accountable for clear error. See United

States v. McKneely, 69 F.3d 1067, 1078 (10th Cir. 1995). That is, we will not

disturb the district court’s finding “‘unless it has no support in the record or, after

reviewing all the evidence, we are firmly convinced that an error has been

made.’” United States v. Ortiz, 993 F.2d 204, 207 (10th Cir. 1993) (quoting

United States v. Bernaugh, 969 F.2d 858, 864 (10th Cir. 1992)). We defer to the

district court’s evaluation of the credibility of witnesses. See McKneely, 69 F.3d


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at 1078; United States v. Browning, 61 F.3d 752, 754 (10th Cir. 1995). We

review the district court’s application of the Guidelines de novo. See McKneely,

69 F.3d at 1078.

      We have reviewed the record and find no error. The evidence was clearly

sufficient to support the district court’s finding that defendant possessed the PCP

in the same course of conduct as the offense of conviction. The district court

therefore did not err in including the PCP as relevant conduct in its calculation of

defendant’s offense level.

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

Oklahoma is AFFIRMED.



                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




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