Filed: Nov. 21, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4536 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC JECOBA BULLARD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:06-cr-00047-F) Argued: September 25, 2008 Decided: November 21, 2008 Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and James C. CACHERIS, Senior United States District Judge f
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4536 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC JECOBA BULLARD, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (7:06-cr-00047-F) Argued: September 25, 2008 Decided: November 21, 2008 Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and James C. CACHERIS, Senior United States District Judge fo..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4536
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ERIC JECOBA BULLARD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:06-cr-00047-F)
Argued: September 25, 2008 Decided: November 21, 2008
Before WILLIAMS, Chief Judge, GREGORY, Circuit Judge, and James
C. CACHERIS, Senior United States District Judge for the Eastern
District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Sofie Wonderly Hosford, HOSFORD & HOSFORD, P.C.,
Wilmington, N.C., for Appellant. Jennifer P. May-Parker, OFFICE
OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for
Appellee. ON BRIEF: George E. B. Holding, United States
Attorney, Anne M. Hayes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Defendant-Appellant Eric Jecoba Bullard (Bullard) appeals
the final judgment entered by the United States District Court
for the Eastern District of North Carolina (District Court) on
May 16, 2007. For the reasons that follow, we affirm.
I.
Bullard appeals his conviction for distribution of a
heroin-cocaine mixture (21 U.S.C. § 841(a)(1)), possession of a
firearm with an obliterated serial number (18 U.S.C. § 922(k)),
and possession of a firearm by a felon (18 U.S.C. § 922(g)(1)).
Bullard was convicted following an investigation by the Bureau
of Alcohol, Tobacco, Firearms and Explosives (ATF) and the
Wilmington, North Carolina Police Department (Wilmington
Police).
On May 13, 2005, Brian King, a confidential informant (CI)
working for the ATF and the Wilmington Police, called Bullard
and inquired about purchasing a gun from him. Bullard told King
he would get him a gun. A few days later, King called Bullard
again, this time asking to purchase heroin along with the gun.
On May 17, 2005, King and Bullard arranged a meeting that
occurred later that day. While sitting in a green Honda Accord,
Bullard sold King a .38 caliber revolver with an obliterated
serial number for $250 along with what has later determined to
2
be .7 grams of a heroin-cocaine mixture $100. Near the end of
the transaction, a Wilmington Police detective drove by the car
and recognized Bullard, who had dreadlocks, from a picture he
had viewed earlier that day. On July 25, 2005, King picked
Bullard out of a photo array as the person who sold him the
drugs and the gun.
At trial, the defense rested without presenting evidence
and renewed its motion for acquittal under Federal Rule of
Criminal Procedure 29. The District Court granted the motion
with respect to Count II of the indictment, possession of a
firearm during and in relation to a drug trafficking crime (18
U.S.C. § 924(c)(1)). The jury convicted Bullard of the three
remaining counts.
At the sentencing hearing, the prosecution sought two
sentence enhancements. The first was a four-level enhancement
for possession of a firearm in connection with another felony
offense, under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5).
The basis for the requested enhancement was Bullard’s possession
and sale of a firearm while he possessed and sold the heroin-
cocaine mixture to the CI. The defense argued that this
enhancement was not applicable because it was based on the same
evidence as Count II of the indictment, which the court
dismissed under Rule 29. The second was a two-level enhancement
for possession of between three and seven firearms, under U.S.
3
Sentencing Guidelines Manual § 2K2.1(b)(1)(A), based on
Bullard’s possession, two months after his sale of contraband to
the CI, of three firearms seized from a Jeep Grand Cherokee to
which Bullard held the ignition key. The defense argued that
the Government had presented insufficient evidence of Bullard’s
possession of those firearms.
The District Court found for the Government on both
enhancements. It sentenced Bullard to 175 months’ imprisonment
on Count I (distribution), 60 months’ imprisonment on Count III
(obliterated serial number), and 120 months’ imprisonment on
Count IV (felony gun possession), to be served concurrently,
followed by 3 years of supervised release. Bullard now appeals.
II.
A. Sentencing
At sentencing, the Government bears the burden of proving
the facts necessary to show that enhancements are warranted by a
preponderance of the evidence. United States v. Garner, 243
F.3d 824, 828 (4th Cir. 2001). We review sentencing decisions
for unreasonableness. United States v. Green,
436 F.3d 449, 456
(4th Cir. 2006) (citing United States v. Booker,
543 U.S. 220,
261 (2005)). In the sentencing context, this standard is
“complex and nuanced.”
Id. While “intended to accommodate a
range of discretion,” it includes consideration of “whether the
4
sentence was guided by the Sentencing Guidelines and by the
provisions of § 3553(a).” Id. Unreasonableness depends not on
whether we agree with a particular sentence, see United States
v. Newsom,
428 F.3d 685, 686-87 (7th Cir. 2005), but rather
“whether the sentence was selected pursuant to a reasoned
process in accordance with law . . . and [] effected a fair and
just result,”
Green, 436 F.3d at 456. An error of law or fact
can make a sentence unreasonable.
Id. (citing United States v.
Hummer,
916 F.2d 186, 192 (4th Cir. 1990)). To this end, purely
legal questions are reviewed de novo and purely factual
questions for clear error.
B.
We review the denial of a Rule 29 motion for judgment of
acquittal de novo. United States v. Alerre, 430 F.3d 681, 693
(4th Cir. 2005). A guilty verdict will be sustained if,
“viewing the evidence in the light most favorable to the
Government, it is supported by ‘substantial evidence.’”
Id.
(citing United States v. Burgos,
94 F.3d 849, 862 (4th Cir.
1996) (en banc). “Substantial evidence” is “evidence that a
reasonable finder of fact could accept as adequate and
sufficient to support a conclusion of a defendant's guilt beyond
a reasonable doubt.”
Id.
5
III.
A.
In 2005, the United States Sentencing Guidelines provided
for a four-level enhancement to the defendant’s offense level if
“the defendant used or possessed any firearm or ammunition in
connection with another felony offense.” U.S. Sentencing
Guidelines Manual § 2K2.1(b)(5) (2005). To apply this
enhancement, the Government must prove, by a preponderance of
the evidence, that the defendant possessed or used a gun and
that the possession or use was in connection with another felony
offense. United States v. Garnett, 243 F.3d 824, 828 (4th Cir.
2001). The “in connection with” requirement is explained as
“facilitat[ing], or ha[ving] the potential of facilitating,
another felony offense.” U.S. Sentencing Guidelines Manual §
2K2.1(b)(5) cmt. n.14(a) (2005); see also United States v.
Blount,
337 F.3d 404, 411 (4th Cir. 2003). It does not include
situations where the presence of a firearm is simply accidental
or coincidental. United States v. Lipford,
203 F.3d 259, 266
(4th Cir. 2000).
Bullard has conceded that he possessed or used a gun when
he sold it to the CI. Before us is the question of whether the
District Court properly determined that Bullard possessed or
used that weapon “in connection with” his sale of the drugs.
6
Bullard argues that, under Blount, 337 F.3d at 411, the gun
he sold to the CI did not “facilitate” the distribution of
drugs. Blount was convicted for a burglary during which he
stole a revolver and ammunition.
Id. In affirming his
sentence, this Court agreed that the Government had not shown
that the revolver facilitated or had a tendency to facilitate
the burglary.
Id. There was no evidence that the defendant
used the stolen weapon to intimidate occupants of the home or
that he prepared for the burglary by carrying a firearm, thus
Blount’s possession of the gun was merely “spontaneous or
coincidental”.
Id. (quoting Lipford, 203 F.3d at 266).
Bullard also cites Lipford, explaining that the gun was not
present to “embolden” or to “protect” him. 203 F.3d at 266. In
Lipford, the Court explained that the phrase “in relation to” in
18 U.S.C. § 924(c), which is synonymous with “in connection
with,” see
Blount, 337 F.3d at 411,
Garnett, 243 F.3d at 828-29,
could refer to a transaction in which a drug dealer sold a gun
along with
drugs. 203 F.3d at 267. In order to encourage a
“drug seller to take the risks inherent in selling contraband,”
we stated, a drug purchaser “can often ‘sweeten the pot,’
offering to purchase not only drugs, but other illegal goods as
well. . . . [w]here that other illegal good is a firearm, [its]
involvement in the drug transaction is not ‘spontaneous’ or ‘co-
incidental;’ . . . [it] facilitates the drug transaction.”
Id.
7
The situation presented here is nearly identical to that in
Lipford. In fact, Bullard’s firearm appears to have played an
even more important role because it constituted a larger portion
of Bullard’s sale. In Lipford, the defendant was paid $100 for
one gun and more than $1390 for 34.5 grams of crack over the
course of three
transactions. 203 F.3d at 263-64. Here,
Bullard made a single sale, the gun was the original item that
the CI sought to purchase, and Bullard received $250 for the gun
and $100 for the drugs. For these reasons, the District Court
could properly find, by a preponderance of the evidence, that
Bullard’s sale of the gun constituted “use[] or possess[ion] of
a firearm in connection with another felony offense.” U.S.
Sentencing Guidelines Manual § 2K2.1(b)(5).
B.
The Government also sought and received a two-level
enhancement in offense level under United States Sentencing
Guidelines Manual § 2K2.1(b)(1)(A). This guideline provides for
an enhancement if the offense involved between three and seven
firearms. The “offense” includes “the offense of conviction and
all relevant conduct under § 1B1.3 (Relevant Conduct).” U.S.
Sentencing Guidelines Manual § 1B1.1 cmt. n.1(H).
At sentencing, the Government submitted that the firearms
found in the Jeep Grand Cherokee two months after Bullard’s
transaction with the CI was “relevant” to the offenses that led
8
to Bullard’s conviction. The District Court agreed and also
found that Bullard possessed those guns and that there were
three firearms in the Jeep. Bullard challenges only the
determination that he “possessed” the guns.
“Possession” can be actual or constructive. United States
v. Jackson, 124 F.3d 607, 610 (4th Cir. 1997). Actual
possession is physical control over property, while constructive
possession exists if a defendant “exercised, or had the power to
exercise, dominion and control over the item.” United States v.
Rusher,
966 F.2d 868, 878 (4th Cir. 1992) (quoting United States
v. Laughman,
618 F.2d 1067, 1077 (4th Cir. 1980)). Constructive
possession need not be exclusive and can be proven by
circumstantial evidence.
Id. The Government has never argued
that Bullard had actual possession of the firearms. Thus, the
issue before this Court is whether the District Court properly
found that Bullard constructively possessed the firearms in the
Jeep.
We applied the “dominion and control” test for constructive
possession in United States v. Zandi, 769 F.2d 229, 235 (4th
Cir. 1985), finding that a defendant with actual possession of
shipping documents had constructive possession of the contraband
being shipped because the documents provided the ability to
exert control over the package. We also quoted with approval
United States v. Martorano,
709 F.2d 863 (3d Cir.), cert.
9
denied, 464 U.S. 993 (1983), in which the Third Circuit held
that the defendant constructively possessed drugs contained in a
van to which he possessed keys to its front doors and to a
padlock on its rear doors.
Zandi, 769 F.2d at 234 (citing
Martorano, 709 F.2d at 866).
We again addressed this standard in United States v. Blue,
957 F.2d 106 (4th Cir. 1992), where we held that the Government
did not present sufficient evidence of “dominion and control”
for the jury to find, beyond a reasonable doubt, that the
defendant constructively possessed a certain gun.
Id. at 108.
The Government’s only evidence in this case was the testimony of
a police officer who pulled over a car because its occupants
were not wearing seatbelts. The officer stated that he found a
loaded .38 under the seat in which the defendant, a passenger,
was sitting and that, when he approached the vehicle, he had
seen Blue “dip” his shoulder as if reaching under the seat with
his right hand.
Id. at 107. In finding this evidence
insufficient, we noted that the weapon was hidden under the
seat, the car did not belong to Blue, and “no evidence indicated
that Blue had ever been in that car before.”
Id. at 108.
A number of factual and legal differences between these
cases lead us to find that Blue is not applicable here. First,
the standard of proof applied to sentencing enhancements is a
preponderance of the evidence; Blue was decided under the beyond
10
a reasonable doubt standard applicable at trial. Second, at
least one gun in the Jeep to which Bullard held the ignition key
was in plain view, as was a magazine for an assault rifle; in
Blue, the gun was hidden under a seat. Finally, Bullard had
actual possession of the Jeep’s ignition key, while Blue was
merely a passenger in the car. Finally, we expressly noted that
the facts in Blue “fall outside, but just barely, the realm of
the quantum of evidence necessary to support a finding of
constructive possession.” Id. at 108.
The District Court could properly find, by a preponderance
of the evidence, that Bullard constructively possessed the
firearms seized from the Jeep. The court applied the correct
legal standards and made no clear errors in its factual
findings. Relying on the cases addressing the “dominion and
control” standard, it could properly conclude that Bullard’s
possession of the ignition key to the Jeep gave him “dominion
and control” over the Jeep’s contents. *
C.
Bullard argues that the sentence imposed by the District
Court does not serve the purposes set forth in 18 U.S.C. §
*
While actual possession of the ignition key of an
automobile containing contraband is sufficient in the context of
sentencing enhancements, we take no position on whether it would
be sufficient to satisfy the “beyond a reasonable doubt”
standard applied at a criminal trial.
11
3553(a)(2) and is, in any event, greater than necessary to serve
those purposes. He also argues that a sentence of 175 months
for distribution of .7 grams of a heroin-cocaine mixture is so
disproportionate as to be unreasonable. In support of these
arguments, Bullard notes that he was more of a drug user than
seller, that he had provided care for his grandfather, who was
afflicted with Alzheimer’s, and that he is the father of a young
child for whom he has paid child support.
The sentencing purposes identified in 18 U.S.C. §
3553(a)(2)(A) to (D) are “the four foundational purposes of
sentencing . . . punishment, deterrence, incapacitation, and
rehabilitation.” United States v. Shortt, 485 F.3d 243, 248-49
(4th Cir. 2007) (citation omitted). “The proper application of
§ 3553(a) [] requires a sentencing court to focus on the four
purposes of sentencing . . . and . . . the seven factors listed
in § 3553(a)(1)-(7).”
Id. at 249. “A sentence that fails to
fulfill the purposes cannot be saved, even if it is supported by
consideration of the six other factors.”
Id. at 249.
The District Court stated that it considered the § 3553(a)
factors in determining Bullard’s sentence. It also considered
Bullard’s care for his grandfather, his drug abuse problem, and
his minor child. Finally, it recommended an intensive drug
treatment program and vocational training on supervised release,
and declined to impose a fine.
12
The Court notes that Bullard’s assertion that he was
sentenced to 175 months’ imprisonment for selling .7 grams of
heroin and cocaine is misleading. Bullard’s sentence reflected
a number of infractions, including constructive possession of
several guns, the sale of drugs and of a firearm, and actual
possession of a gun with an obliterated serial number. Bullard
also has an extensive criminal history that illustrates his
potential for recidivist behavior. Moreover, under the
Sentencing Guidelines’ grouping principles, the guideline that
applied to Bullard was tied to his gun conviction, not the drug
distribution; his drug trafficking merely enhanced his sentence
by four levels. For all of these reasons, Bullard’s sentence
was not disproportionate to his crime. The District Court
appropriately considered § 3553(a)(2) and selected a sentence
that serves the statute’s stated purposes.
D.
Bullard claims the district court improperly denied his
Rule 29 motion for a judgment of acquittal because the
Government did not present sufficient evidence to prove that he
was the person who sold the contraband to the CI. Bullard
submits that because the CI had not met him before the sale
occurred and because neither of the law enforcement officers who
identified him actually saw Bullard engage in the sale of
13
contraband, the testimony of these witnesses is insufficient to
identify Bullard as the perpetrator.
Bullard’s argument in favor of his Rule 29 motion on the
counts for which he was convicted has no merit. The CI picked
Bullard out of a photo lineup and identified him in court as the
man who sold him the contraband on May 17, 2005. A Wilmington
Police detective testified that he saw Bullard, whom he
recognized from a photograph, in the driver’s seat of the green
Honda Accord as the transaction was concluding. This officer
also identified Bullard in court and stated that he had seen
Bullard driving the Honda two months later. We need not address
the remainder of the Government’s evidence, given the
overwhelming sufficiency of the above. The jury had sufficient
evidence from which to identify Bullard as the guilty party and
to find him guilty of the charges presented.
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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