FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 15, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6090 (D.C. No. 5:19-CR-00218-HE-1) DAVID JELEB GOLDBERG, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. _________________________________
David Jeleb Goldberg appeals from his conviction for possessing cocaine with
intent to distribute and his sentence of 72 months’ imprisonment. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
On June 29, 2019, an Oklahoma state trooper stopped Goldberg for traffic
violations on I-40. While the trooper was writing a warning, another trooper brought
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. a certified drug-sniffing dog, Stormy, to the scene. While walking Stormy around
Goldberg’s vehicle, the handler saw that she “slowed down, became more methodical
around the passenger side rear hatch of the vehicle.” R. Vol. III at 68. He also
“noticed when we got to the passenger side front door, the window was down and she
sticks her nose up there and actually hops up, puts her paws up on the vehicle and
moves her head back and forth. And then she gets off of the vehicle and just stands
still and freezes.” Id. Interpreting her behavior as an alert, the troopers searched the
vehicle, uncovering two kilo-sized bricks of cocaine.
Goldberg moved to suppress the evidence of the cocaine on several grounds.
As relevant to this appeal, while recognizing that “a positive dog alert gives officers
probable cause to search,” United States v. Parada, 577 F.3d 1275, 1281 (10th Cir.
2009), he disputed whether Stormy’s behavior amounted to an alert. At an
evidentiary hearing, Stormy’s handler testified that she was trained to sit if “she can
go directly to the source” of the odor. R. Vol. III at 66. But if she cannot go directly
to the source, she may exhibit “a change of behavior, which is anything other than a
normal pattern.” Id. The trooper testified that even though she did not sit, Stormy’s
behavior around the passenger side of the vehicle constituted an alert.
Crediting the trooper’s testimony, the district court found that Stormy’s
behavior was an alert. “[W]e’re talking about training a team where they are trained
to work with each other and, obviously, the officer’s ability to discern changes in the
behavior of the dog is more attuned to the dog’s training and nature than anything
one of us looking at it from a distance might do.” Id. at 92. Accordingly, the court
2 held that probable cause supported the search leading to the cocaine, and it denied the
motion to suppress.
Goldberg accepted a plea agreement and pleaded guilty to one count of
possessing 500 grams or more of cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1). Because the violation of § 841(a)(1) carried a mandatory
five-year minimum, see id. § 841(b)(1)(B), the Sentencing Guidelines range of 46 to
57 months became 60 months. The district court, however, granted the government’s
motion for an upward variance and sentenced Goldberg to 72 months’ imprisonment.
Goldberg now appeals.
DISCUSSION
I. Motion to Suppress
Goldberg first argues that the district court erred in denying his motion to
suppress, an issue his plea agreement preserved for appeal. Viewing the evidence in
the light most favorable to the government, we review the district court’s factual
findings for clear error and the legal question of reasonableness under the Fourth
Amendment de novo. United States v. Castorena-Jaime, 285 F.3d 916, 924
(10th Cir. 2002).
Goldberg challenges the conclusion that Stormy’s behavior established
probable cause. He argues that Stormy did not indicate she smelled drugs in the
manner in which she was trained—sitting—and that her handler’s interpretation of a
change in behavior is insufficient to constitute an alert. It is unclear whether
Goldberg intends this argument (1) to challenge the district court’s factual finding
3 that Stormy’s behavior constituted an alert, (2) to urge this court to hold, as a matter
of law, that only a dog’s trained signal of final indication can establish probable
cause, or (3) both. But however he intends the argument, it fails.
To the extent that Goldberg brings a factual challenge, he must establish that
the district court clearly erred. See Parada, 577 F.3d at 1281. “A finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Castorena-Jaime, 285 F.3d at 924 (brackets and internal quotation
marks omitted). Goldberg has not satisfied this standard. The district court was
entitled to credit the handler’s testimony that Stormy’s behavior changed and that the
change of behavior served as an alert. See United States v. Moore, 795 F.3d 1224,
1231 (10th Cir. 2015) (concluding that finding of alert, supported by handler’s
testimony about change of behavior, was not clearly erroneous); Parada, 577 F.3d at
1279, 1281 (same).
To the extent that Goldberg brings a legal challenge, this court has held that an
alert, as opposed to a final indication, is sufficient to establish probable cause.
See Moore, 795 F.3d at 1232 (“We have held that an alert, or a change in a dog’s
behavior in reaction to the odor of drugs, is sufficient to establish probable cause to
search a vehicle, and that a final indication is not necessary.”); Parada, 577 F.3d at
1282 (“[T]he general rule we have followed is that a dog’s alert to the presence of
contraband is sufficient to provide probable cause. We decline to adopt the stricter
rule urged by Mr. Parada, which would require the dog to give a final indication
4 before probable cause is established.”). “[I]t is almost axiomatic that one panel of
this court cannot overrule another panel.” Parada, 577 F.3d at 1280 (internal
quotation marks omitted). We therefore reject Goldberg’s request to hold, as a
matter of law, that Stormy’s alert was not sufficient to establish probable cause to
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 15, 2021 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6090 (D.C. No. 5:19-CR-00218-HE-1) DAVID JELEB GOLDBERG, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before PHILLIPS, McHUGH, and CARSON, Circuit Judges. _________________________________
David Jeleb Goldberg appeals from his conviction for possessing cocaine with
intent to distribute and his sentence of 72 months’ imprisonment. Exercising
jurisdiction under 28 U.S.C. § 1291, we affirm.
BACKGROUND
On June 29, 2019, an Oklahoma state trooper stopped Goldberg for traffic
violations on I-40. While the trooper was writing a warning, another trooper brought
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. a certified drug-sniffing dog, Stormy, to the scene. While walking Stormy around
Goldberg’s vehicle, the handler saw that she “slowed down, became more methodical
around the passenger side rear hatch of the vehicle.” R. Vol. III at 68. He also
“noticed when we got to the passenger side front door, the window was down and she
sticks her nose up there and actually hops up, puts her paws up on the vehicle and
moves her head back and forth. And then she gets off of the vehicle and just stands
still and freezes.” Id. Interpreting her behavior as an alert, the troopers searched the
vehicle, uncovering two kilo-sized bricks of cocaine.
Goldberg moved to suppress the evidence of the cocaine on several grounds.
As relevant to this appeal, while recognizing that “a positive dog alert gives officers
probable cause to search,” United States v. Parada, 577 F.3d 1275, 1281 (10th Cir.
2009), he disputed whether Stormy’s behavior amounted to an alert. At an
evidentiary hearing, Stormy’s handler testified that she was trained to sit if “she can
go directly to the source” of the odor. R. Vol. III at 66. But if she cannot go directly
to the source, she may exhibit “a change of behavior, which is anything other than a
normal pattern.” Id. The trooper testified that even though she did not sit, Stormy’s
behavior around the passenger side of the vehicle constituted an alert.
Crediting the trooper’s testimony, the district court found that Stormy’s
behavior was an alert. “[W]e’re talking about training a team where they are trained
to work with each other and, obviously, the officer’s ability to discern changes in the
behavior of the dog is more attuned to the dog’s training and nature than anything
one of us looking at it from a distance might do.” Id. at 92. Accordingly, the court
2 held that probable cause supported the search leading to the cocaine, and it denied the
motion to suppress.
Goldberg accepted a plea agreement and pleaded guilty to one count of
possessing 500 grams or more of cocaine with intent to distribute in violation of
21 U.S.C. § 841(a)(1). Because the violation of § 841(a)(1) carried a mandatory
five-year minimum, see id. § 841(b)(1)(B), the Sentencing Guidelines range of 46 to
57 months became 60 months. The district court, however, granted the government’s
motion for an upward variance and sentenced Goldberg to 72 months’ imprisonment.
Goldberg now appeals.
DISCUSSION
I. Motion to Suppress
Goldberg first argues that the district court erred in denying his motion to
suppress, an issue his plea agreement preserved for appeal. Viewing the evidence in
the light most favorable to the government, we review the district court’s factual
findings for clear error and the legal question of reasonableness under the Fourth
Amendment de novo. United States v. Castorena-Jaime, 285 F.3d 916, 924
(10th Cir. 2002).
Goldberg challenges the conclusion that Stormy’s behavior established
probable cause. He argues that Stormy did not indicate she smelled drugs in the
manner in which she was trained—sitting—and that her handler’s interpretation of a
change in behavior is insufficient to constitute an alert. It is unclear whether
Goldberg intends this argument (1) to challenge the district court’s factual finding
3 that Stormy’s behavior constituted an alert, (2) to urge this court to hold, as a matter
of law, that only a dog’s trained signal of final indication can establish probable
cause, or (3) both. But however he intends the argument, it fails.
To the extent that Goldberg brings a factual challenge, he must establish that
the district court clearly erred. See Parada, 577 F.3d at 1281. “A finding is ‘clearly
erroneous’ when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been
committed.” Castorena-Jaime, 285 F.3d at 924 (brackets and internal quotation
marks omitted). Goldberg has not satisfied this standard. The district court was
entitled to credit the handler’s testimony that Stormy’s behavior changed and that the
change of behavior served as an alert. See United States v. Moore, 795 F.3d 1224,
1231 (10th Cir. 2015) (concluding that finding of alert, supported by handler’s
testimony about change of behavior, was not clearly erroneous); Parada, 577 F.3d at
1279, 1281 (same).
To the extent that Goldberg brings a legal challenge, this court has held that an
alert, as opposed to a final indication, is sufficient to establish probable cause.
See Moore, 795 F.3d at 1232 (“We have held that an alert, or a change in a dog’s
behavior in reaction to the odor of drugs, is sufficient to establish probable cause to
search a vehicle, and that a final indication is not necessary.”); Parada, 577 F.3d at
1282 (“[T]he general rule we have followed is that a dog’s alert to the presence of
contraband is sufficient to provide probable cause. We decline to adopt the stricter
rule urged by Mr. Parada, which would require the dog to give a final indication
4 before probable cause is established.”). “[I]t is almost axiomatic that one panel of
this court cannot overrule another panel.” Parada, 577 F.3d at 1280 (internal
quotation marks omitted). We therefore reject Goldberg’s request to hold, as a
matter of law, that Stormy’s alert was not sufficient to establish probable cause to
search his vehicle.
II. Reasonableness of Sentence
Goldberg next argues that this sentence was both procedurally and
substantively unreasonable.
A. Procedural Reasonableness
Goldberg’s plea agreement waived “the right to appeal [his] sentence as
imposed by the Court, including any restitution, and the manner in which the
sentence is determined.” R. Vol. I at 63. The government argues that this waiver
bars his arguments about procedural unreasonableness. In considering whether to
enforce an appeal waiver, we examine “(1) whether the disputed appeal falls within
the scope of the waiver of appellate rights; (2) whether the defendant knowingly and
voluntarily waived his appellate rights; and (3) whether enforcing the waiver would
result in a miscarriage of justice.” United States v. Hahn, 359 F.3d 1315, 1325
(10th Cir. 2004) (en banc) (per curiam). Enforcing an appeal waiver results in a
miscarriage of justice when (1) “the district court relied on an impermissible factor
such as race,” (2) “ineffective assistance of counsel in connection with the
negotiation of the waiver renders the waiver invalid,” (3) “the sentence exceeds the
5 statutory maximum,” or (4) “the waiver is otherwise unlawful.” Id. at 1327 (internal
quotation marks omitted).
“Procedural reasonableness addresses whether the district court incorrectly
calculated the Guidelines sentence, treated the Guidelines as mandatory, failed to
consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to
adequately explain the sentence.” United States v. Haggerty, 731 F.3d 1094, 1098
(10th Cir. 2013) (ellipsis and internal quotation marks omitted). We are satisfied that
in this case the broad scope of the appeal waiver encompasses these arguments.
Moreover, both the plea agreement and the plea colloquy support the conclusion that
Goldberg knowingly and voluntarily accepted the waiver. And the record does not
indicate that enforcing the waiver would result in a miscarriage of justice, as that
term is defined by Hahn, 359 F.3d at 1327. We therefore enforce the appeal waiver
and decline to consider arguments that bear solely upon procedural reasonableness.
B. Substantive Reasonableness
In contrast, the waiver reserved Mr. Goldberg’s right to appeal the substantive
reasonableness of his sentence “[i]f the sentence is above the advisory Guidelines
range determined by the Court to apply to [his] case.” R. Vol. I at 63. This
exception applies here because of the upward variance. We review substantive
reasonableness for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).
“Applying this standard, we give substantial deference to the district court and will
only overturn a sentence that is arbitrary, capricious, whimsical, or manifestly
6 unreasonable.” United States v. Peña, 963 F.3d 1016, 1024 (10th Cir. 2020) (internal
quotation marks omitted), cert. denied, 208 L. Ed. 2d 559 (U.S. 2021).
“Substantive reasonableness involves whether the length of the sentence is
reasonable given all the circumstances of the case in light of the factors set forth in
18 U.S.C. § 3553(a).” Id. (internal quotation marks omitted). “When conducting this
review, the court will, of course, take into account the totality of the circumstances,
including the extent of any variance from the Guidelines range.” Gall, 552 U.S. at
51. Mere disagreement with the weight the district court gave various factors does
not establish that a sentence is substantively unreasonable. See Peña, 963 F.3d at
1025, 1026; see also Gall, 552 U.S. at 51 (stating that the appellate court must “give
due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance”).
The district court highlighted that (1) this drug offense was substantially
similar to Goldberg’s prior felony conviction, and (2) he committed this offense soon
after being released from incarceration on the prior offense. Goldberg asserts that
both of these reasons implicate § 3553(a)(2), which requires the court to consider the
“basic aims of sentencing, namely (a) just punishment (retribution), (b) deterrence,
(c) incapacitation, and (d) rehabilitation,” United States v. Walker, 844 F.3d 1253,
1256 (10th Cir. 2017) (internal quotation marks omitted). He argues that the district
court thereby unduly weighed that factor, to the exclusion of the other § 3553(a)
factors. After examining all the circumstances, however, we are not persuaded that
7 the district court’s 12-month upward variance was arbitrary, capricious, whimsical,
or manifestly unreasonable.
In 2012, Goldberg was convicted of conspiracy to distribute heroin and
received a 60-month sentence. Less than a year after being released, he violated his
supervised release and was sentenced to ten months’ additional incarceration. He
was released from that incarceration in April 2018, but just over a year later, he
committed the instant offense. The district court permissibly considered that the
instant offense’s similarity and proximity to the previous offense showed a troubling
recidivist tendency. See United States v. Singer, 825 F.3d 1151, 1160 (10th Cir.
2016); see also United States v. Franklin-El, 554 F.3d 903, 913 (10th Cir. 2009).
Moreover, contrary to the assertion that the district court focused only on
§ 3553(a)(2), the information about the prior conviction also implicated § 3553(a)(1),
which requires the district court to consider “the nature and circumstances of the
offense and the history and characteristics of the defendant.” See Singer, 825 F.3d at
1160. The district court further explicitly considered Goldberg’s history and
characteristics in setting the length of the variance. The court explained that it had
considered a greater variance, but settled on 12 months in part due to crediting
Goldberg’s allocution statement that the recent birth of his first child had helped
mature and change him. “I do . . . credit the defendant’s explanation that – or the
defendant’s assurance essentially that he’s learned his lesson and will hopefully
move in a different direction now that he does have family responsibilities that he
didn’t have before.” R. Vol. III at 110.
8 CONCLUSION
The district court’s judgment is affirmed.
Entered for the Court
Joel M. Carson III Circuit Judge