UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 

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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 heroincocaine 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. 

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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.

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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 ‘coincidental;’ . . . [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.

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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. 

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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 
14 

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.