United States v. Ahmed

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 15 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 04-5000
(D. Ct. No. 03-CR-23-EA)
AFTAB KHAN AHMED, aka (N.D. Okla.)
“Bobby,”
Defendant - Appellant.
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 would not 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 submitted without oral argument.
Defendant-Appellant Aftab Khan Ahmed pleaded guilty to selling
pseudoephedrine, a substance used to manufacture methamphetamine, in violation
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
of 21 U.S.C. § 814(c)(2). On December 12, 2003, the District Court imposed a
two-level sentencing enhancement for possessing a firearm during a drug
trafficking offense under U.S. Sentencing Guidelines § 2D1.1(b)(1) (2003)
(“U.S.S.G.”), which resulted in a 135-month sentence. Mr. Ahmed timely appeals
the imposition of this enhancement. We take jurisdiction 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 Walk 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, totaling over 138,000 tablets. At
this point, the Tulsa police employed a confidential informant.
On December 29, 2001, the confidential informant met with Mr. Ahmed in
the convenience store. At this meeting they discussed numerous illegal activities,
including the sale of narcotics. Nevertheless, during this meeting Mr. Ahmed did
not sell pseudoephedrine to the confidential informant. At one point in their
conversation, Mr. Ahmed pointed a nine-millimeter pistol, which he kept in a
1
Because Mr. Ahmed does not assert that the District Court’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 sentence.
-2-
drawer underneath the safe, at the confidential informant and questioned whether
he could be trusted.
On January 8, 2002, an undercover police officer met with Mr. Ahmed at
the convenience store. During this meeting, the officer purchased
pseudoephedrine. In the following week, the undercover officer met with Mr.
Ahmed two more times and purchased more pseudoephedrine. Mr. Ahmed did not
brandish the pistol during these meetings. On January 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. § 814(c)(2) on July 14,
2003. The Presentence Report recommended a two-level 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 evidence establishing that he
possessed the pistol at the time the pseudoephedrine sales were made. Mr.
Ahmed also claimed that he kept the gun for his personal 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 clear error. United States v. Vaziri,
-3-
164 F.3d 556, 568 (10th Cir. 1999) (“We review factual findings under USSG §
2D1.1(b)(1) for clear error.”). On clear error review, 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 mistake has been made.” United
States v. Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001) (internal quotation
marks omitted).
The Sentencing Guidelines provide for an offense level 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). The 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 proving 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 connected with
the offense. See Vaziri, 164 F.3d at 568.
Here, Mr. Ahmed contests both requirements. Although he does not contest
possession of the pistol before the sales of pseudoephedrine to the undercover
officer or after the sales, Mr. Ahmed contends that there is no evidence on the
-4-
record that he possessed the pistol during the sales. Second, Mr. Ahmed argues
that, because he is a convenience store owner in constant need of protection, it is
clearly improbable that the pistol was connected with 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 inferences from the facts on the
record in order to determine whether to apply a provision 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 reasonable 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 pistol behind the counter of
his convenience store on December 29, 2001. The pistol was found in that
location on January 17, 2002. Given this evidence, the District Court could
reasonably infer that the gun was behind the counter during the January sales of
pseudoephedrine to the undercover officer. Because the pseudoephedrine sales
-5-
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 improbable that the weapon was
connected with the offense.” U.S.S.G. § 2D1.1, Application 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, we 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 other than preventing robberies and
the like. For instance, Mr. Ahmed pointed the pistol 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-level enhancement under U.S.S.G. §
2D1.1(b)(1).
-6-
IV. CONCLUSION
For the foregoing reasons, we AFFIRM.
ENTERED FOR THE COURT,
Deanell Reece Tacha
Chief Circuit Judge
-7-