US v. Eric Bullard, No. 07-4536 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4536 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ERIC JECOBA BULLARD, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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, Wilmington, Tobacco, North Firearms Carolina and Explosives Police (ATF) Department and the (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. he would get him a gun. Bullard told King A few days later, King called Bullard again, this time asking to purchase heroin along with the gun. On May 17, 2005, King occurred later that day. and Bullard arranged a meeting that 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 Criminal Procedure 29. for acquittal under Federal Rule of 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 sentence enhancements. hearing, the prosecution sought two 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 dismissed under Rule 29. of the indictment, which the court 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 enhancements. Court found for the Government on both 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 complex and nuanced. sentencing Id. context, this standard is While intended to accommodate a range of discretion, it includes consideration of whether the 4 sentence was guided by the provisions of § 3553(a). Sentencing Id. Guidelines and by the 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. can make a sentence unreasonable. An error of law or fact Id. (citing United States v. Hummer, 916 F.2d 186, 192 (4th Cir. 1990)). legal questions are reviewed de novo To this end, purely 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 A Cir. viewing 2005). the guilty evidence in verdict will be light most favorable the sustained to Government, it is supported by substantial evidence. if, the Id. (citing United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996) (en banc). Substantial evidence is evidence that a reasonable of finder 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 Guidelines Manual § felony offense. 2K2.1(b)(5) U.S. (2005). To Sentencing 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. 2001). United States v. Garnett, 243 F.3d 824, 828 (4th Cir. 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) (2005); cmt. n.14(a) see also Blount, 337 F.3d 404, 411 (4th Cir. 2003). United States v. 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. District Court Before us is the question of whether the properly determined that Bullard possessed used that weapon in connection with his sale of the drugs. 6 or Bullard argues that, under Blount, 337 F.3d at 411, the gun he sold drugs. stole to the CI did not facilitate the distribution of Blount was convicted for a burglary during which he 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 coincidental . of the gun was merely spontaneous or 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. 7 Id. 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 In Lipford, the defendant was paid $100 for of Bullard s sale. 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 enhancement in also offense sought level and under Guidelines Manual § 2K2.1(b)(1)(A). received United a States two-level Sentencing 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. found that Bullard three firearms in The District Court agreed and also possessed the those Jeep. guns and Bullard that there challenges were only the determination that he possessed the guns. Possession can be actual or constructive. v. Jackson, 124 F.3d 607, 610 (4th Cir. United States 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)). possession need not be circumstantial evidence. exclusive Id. and can Constructive be proven by 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 exert control over the package. United States v. Martorano, 709 9 provided the ability to We also quoted with approval F.2d 863 (3d Cir.), cert. 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, defendant constructively possessed a certain gun. that the 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. insufficient, we Id. noted at 107. that the In weapon finding was this hidden evidence 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 constructive possession. necessary to support a finding of Id. at 108. The District Court could properly find, by a preponderance of the evidence, that Bullard firearms seized from the Jeep. legal standards findings. control and made no constructively possessed the The court applied the correct clear errors in its factual Relying on the cases addressing the dominion and 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 3553(a)(2)(A) to sentencing . . purposes (D) . rehabilitation. identified are four the punishment, in 18 foundational deterrence, U.S.C. § purposes of incapacitation, and 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. also has an potential extensive for criminal recidivist history behavior. that Bullard illustrates Moreover, under his 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. was not For all of these reasons, Bullard s sentence 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 Rule 29 claims motion the for a district judgment court of improperly acquittal denied his 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 13 engage in the sale of 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. Police detective testified that he saw A Wilmington 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. the remainder of the Government s overwhelming sufficiency of the above. We need not address evidence, given the 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. 14

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