                               UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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




                                        14
