* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### FEB 15 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. AFTAB KHAN AHMED, aka “Bobby,” Defendant - Appellant. No. 04-5000 (D. Ct. No. 03-CR-23-EA) (N.D. Okla.)

ORDER AND JUDGMENT *

Before TACHA , Chief Circuit Judge, BRISCOE , and HARTZ , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has determined unanimously that oral argument wouldnot be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. Defendant-Appellant Aftab Khan Ahmed pleaded guiltyto selling pseudoephedrine, a substance used to manufacture me thamphetamine, in violation1 Because Mr. Ahmed does not assert that the DistrictCourt’s mandatory

application of the Guidelines constitutes an error, we need not consider whether United States v. Booker , — S.Ct.—, 2005 WL 50108 (2005) affects his senten ce. - 2 - of 21 U.S.C. § 814(c)(2). On December 12, 2003, th e District Court imposed a two-level sentencing enhancement for possessing a f irearm during a drug trafficking offense under U.S. Sentencing Guideline s § 2D1.1(b)(1) (2003) (“U.S.S.G.”), which resulted in a 135-month sentenc e. Mr. Ahmed timely appeals the imposition of this enhancement. We take jurisd iction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and AFFIRM. 1
I. BACKGROUND Suspecting the sale of pseudoephedrine from the Wal k In Food Stop convenience store in Tulsa, Oklahoma, local police began an investigation in the early fall of 2001. Mr. Ahmed was the owner of the store. The police’s suspicion was piqued in late October and early November when Mr. Ahmed reported two robberies of pseudoephedrine from his store, totali ng over 138,000 tablets. At this point, the Tulsa police employed a confidentia l informant. On December 29, 2001, the confidential informant me t with Mr. Ahmed in the convenience store. At this meeting they discus sed numerous illegal activities, including the sale of narcotics. Nevertheless, dur ing this meeting Mr. Ahmed did not sell pseudoephedrine to the confidential inform ant. At one point in their conversation, Mr. Ahmed pointed a nine-millimeter p istol, which he kept in a- 3 -

drawer underneath the safe, at the confidential inf ormant and questioned whether he could be trusted. On January 8, 2002, an undercover police officer me t with Mr. Ahmed at the convenience store. During this meeting, the of ficer purchased pseudoephedrine. In the following week, the underc over officer met with Mr. Ahmed two more times and purchased more pseudoephedrine. Mr. Ahmed did not brandish the pistol during these meetings. On Janu ary 17, a search warrant was served at the convenience store. The Tulsa police recovered pseudoephedrine, business records, and the nine-millimeter pistol. Mr. Ahmed pleaded guilty to violating 21 U.S.C. § 8 14(c)(2) on July 14, 2003. The Presentence Report recommended a two-lev el enhancement for possessing a firearm in furtherance of a drug crime

. See U.S.S.G. § 2D1.1(b)(1). Mr. Ahmed objected. He claimed that there was no e vidence establishing that he possessed the pistol at the time the pseudoephedrin e sales were made. Mr. Ahmed also claimed that he kept the gun for his per sonal protection while working at the convenience store, not as an aid to his drug trafficking. The District Court rejected this objection and applied the enhancement.
II. DISCUSSION Mr. Ahmed argues that the District Court’s factual findings are incorrect. The parties agree that our review is limited to cle ar error. United States v. Vaziri ,- 4 -

164 F.3d 556, 568 (10th Cir. 1999) (“We review factual findings under USSG § 2D1.1(b)(1) for clear error.”). On clear error rev iew, we may reverse “only if the district court’s finding was without factual support in the record or we are left with the definite and firm conviction that a mistak e has been made.” United States v. Cernobyl , 255 F.3d 1215, 1221 (10th Cir. 2001) (internal qu otation marks omitted). The Sentencing Guidelines provide for an offense le vel enhancement of two points “[i]f a dangerous weapon (including a firearm) was possessed” during a drug trafficking crime. U.S.S.G. § 2D1.1(b)(1). T he comments further elaborate the rule and provide an exception: “The [enhancement for weapon possession] should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense.” U.S.S. G. § 2D1.1, Application Note 3. The government bears the initial burden of prov ing possession of the weapon by a preponderance of the evidence. See Vaziri , 164 F.3d at 568. Once possession is shown, the enhancement is appropriate unless the defendant proves the exception, i.e. , that it is clearly improbable the weapon was conn ected with the offense. See Vaziri , 164 F.3d at 568. Here, Mr. Ahmed contests both requirements. Althou gh he does not contest possession of the pistol before the sales of pseudo ephedrine to the undercover officer or after the sales, Mr. Ahmed contends thatthere is no evidence on the- 5 -

record that he possessed the pistol during the sale s. Second, Mr. Ahmed argues that, because he is a convenience store owner in co nstant need of protection, it is clearly improbable that the pistol was connected wi th the drug trafficking offense. We disagree. Possession may be proved by showing mere proximity of the weapon to the location of the criminal offense. See id. ; United States v. Flores , 149 F.3d 1272, 1280 (10th Cir. 1998); United States v. Roederer , 11 F.3d 973, 982–83 (10th Cir. 1993); United States v. Roberts , 980 F.2d 645, 647 (10th Cir. 1992). Further, the District Court is permitted to draw reasonable infe rences from the facts on the record in order to determine whether to apply a pro vision of the Sentencing Guidelines. See United States v. Aptt , 354 F.3d 1269, 1279 (10th Cir. 2004) (in applying the U.S.S.G., a district court may make re asonable inferences from facts supported by the record); United States v. Bruce , 78 F.3d 1506, 1510 (10th Cir. 1996) (same); United States v. Morgan , 936 F.2d 1561, 1574 (10th Cir. 1991) (same). The record establishes that Mr. Ahmed had the pisto l behind the counter of his convenience store on December 29, 2001. The pi stol was found in that location on January 17, 2002. Given this evidence, the District Court could reasonably infer that the gun was behind the counte r during the January sales of pseudoephedrine to the undercover officer. Becaus e the pseudoephedrine sales- 6 -

took place in the convenience store, we hold that the pistol was proximate to the offense, and therefore Mr. Ahmed possessed a gun during the commission of the offense. Next, Mr. Ahmed contends that there is no evidence to support the District Court’s conclusion that it is not “clearly improbab le that the weapon was connected with the offense.” U.S.S.G. § 2D1.1, App lication Note 3. Mr. Ahmed argues that he retained the pistol merely for self- defense in relation to his legitimate work at the convenience store. First, w e note that it is the defendant’s burden to satisfy this exception. Vaziri , 164 F.3d at 568. Thus, the alleged lack of evidence would not constitute sentencing error. Moreover, there is evidence that Mr. Ahmed used the pistol for activities otherthan preventing robberies and the like. For instance, Mr. Ahmed pointed the pist ol at the confidential informant during their conversation and inquired if he could trust him. Given this demonstrated willingness to use the pistol in this manner, we cannot hold that the District Court clearly erred in applying a two-leve l enhancement under U.S.S.G. § 2D1.1(b)(1).- 7 - IV. CONCLUSION For the foregoing reasons, we AFFIRM.

ENTERED FOR THE COURT,

Deanell Reece Tacha Chief Circuit Judge