UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DAVID JELEB GOLDBERG, Defendant - Appellant. No. 20-6090 (D.C. No. 5:19-CR-00218-HE-1) (W.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , McHUGH , and CARSON , Circuit Judges.

________________ _________________ David Jeleb Goldberg appeals from hi s conviction for posse ssing 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 stat e trooper stopped Goldberg for traffic violations on I-40. While the trooper was writing a warni ng, another trooper brought

* After examining the briefs and appella te record, this pa nel 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 This or der and judgment is not binding precedent, except under the doctrines of la w of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

### March 15, 2021 Christopher M. Wolpert Clerk of Court2 a certified drug-sniffing dog, Stormy, to the scene. While walking Stormy around Goldberg’s vehicle, the handler saw that she “slowed down, b ecame more methodical around the passenger side rear ha tch of the vehicle.” R. Vo l. III at 68. He also “noticed when we got to the passenger si de front door, the window was down and she sticks her nose up there a nd actually hops up, puts her paws up on the vehicle and moves her head back and forth. And then sh e gets off of the vehi cle and just stands still and freezes.” Id. Interpreting her behavior as an alert, the troopers searched the vehicle, uncovering two kilo-siz ed bricks of cocaine. Goldberg moved to supp ress the evidence of the cocaine on several grounds. As relevant to this appeal, while recogni zing 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 beha vior 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 passe nger side of the vehicl e constituted an alert. Crediting the trooper’s testimony, the district court foun d 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 di scern changes in the behavior of the dog is more attuned to th e dog’s training and nature than anything one of us looking at it from a distance might do.” Id. at 92. Accordingly, the court3 held that probable cause supporte d the search leading to the cocaine, and it denied the motion to suppress. Goldberg accepted a plea agreement a nd pleaded guilty to one count of possessing 500 grams or more of cocaine with intent to distribut e in violation of 21 U.S.C. § 841(a)(1). Because the viol ation 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 ag reement 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 que stion 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 th at Stormy’s behavior established probable cause. He argues th at 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 cons titute an alert. It is unclear whether Goldberg intends this argumen t (1) to challenge the district court’s factual finding4 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 a nd firm conviction that a mistake has been committed.” Castorena-Jaime , 285 F.3d at 924 (brackets and internal quotation marks omitted). Goldberg has not satisfie d 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 fi nding of alert, s upported by handler’s testimony about change of behavi or, was not clearly erroneous); Parada , 577 F.3d at 1279, 1281 (same). To the extent that Goldberg brings a le gal challenge, this cour t has held that an alert, as opposed to a fina l 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 establ ish probable cause to search a vehicle, and that a fina l 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 re quire the dog to give a final indication5 before probable cause is estab lished.”). “[I]t is almost axiomatic that one panel of this court cannot overru le another panel.” Parada , 577 F.3d at 1280 (internal quotation marks omitted). We therefore re ject Goldberg’s reque st 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 re stitution, 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 unreas onableness. In considering whether to enforce an appeal waiver, we examine “(1) whether the di sputed appeal falls within the scope of the waiver of appellate right s; (2) whether the de fendant knowingly and voluntarily waived his appellate rights; a nd (3) whether enforcing the waiver would result in a miscarri age of justice.” United States v. Hahn , 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (p er curiam). Enforcing an appeal waiver results in a miscarriage of justice when (1) “the distri ct court relied on an impermissible factor such as race,” (2) “ineffe ctive assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid,” (3) “the sentence exceeds the6 statutory maximum,” or (4) “the waiver is otherwise unlawful.” Id. at 1327 (internal quotation marks omitted). “Procedural reasonableness addresses wh ether the district court incorrectly calculated the Guidelines se ntence, treated the Guidelin es as mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous fact s, or failed to adequately explain the sentence.” United States v. Haggerty , 731 F.3d 1094, 1098 (10th Cir. 2013) (ellipsis a nd internal quotation marks omitte d). We are satisfied that in this case the broad scope of the app eal waiver encompasses these arguments. Moreover, both the plea agreement and the plea colloquy support the conclusion that Goldberg knowingly a nd voluntarily accepted the waiv er. And the record does not indicate that enforcing the waiver would resu lt in a miscarriage of justice, as that term is defined by Hahn , 359 F.3d at 1327. We theref ore enforce the appeal waiver and decline to consider argum ents that bear solely upon pr ocedural reasonableness.
B. Substantive Reasonableness In contrast, the waiver re served Mr. Goldberg’s right to appeal the substantive reasonableness of his senten ce “[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 upw ard 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 manifestly7 unreasonable.” United States v. Peña , 963 F.3d 1016, 1024 (10t h Cir. 2020) (internal quotation marks omitted), cert. denied , 208 L. Ed. 2d 559 (U.S. 2021). “Substantive reasonableness involves wh ether the length of the sentence is reasonable given all the circum stances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” Id . (internal quotation marks omitte d). “When conducting this review, the court will, of course, take into account the totality of the circumstances, including the extent of any varian ce from the Guidelines range.” Gall , 552 U.S. at 51. Mere disagreement with the weight the district cour t 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 th e 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 th e prior offense. Go ldberg 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 (retribu tion), (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 exclus ion of the other § 3553(a) factors. After examining all the circumst ances, however, we are not persuaded that8 the district court’s 12-month upward varian ce 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 bei ng released, he violated his supervised release and was sentenced to ten months’ a dditional incarceration. He was released from that incarc eration in April 2018, but just over a year later, he committed the instant offense. The district court permis sibly 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 th at the district court focused only on § 3553(a)(2), the information about the prio r conviction also implicated § 3553(a)(1), which requires the district court to consider “the natu re and circumstances of the offense and the history and charact eristics of the defendant.” See Singer , 825 F.3d at 1160. The district court further explic itly considered Gold berg’s history and characteristics in setti ng the length of the variance. Th e court explained that it had considered a greater variance, but settle d on 12 months in part due to crediting Goldberg’s allocution statemen t that the recent birth of his first child had helped mature and change him. “I do . . . credit the defendant’s explan ation that – or the defendant’s assurance essentially that he’s learned his le sson 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 110.9 CONCLUSION The district court’s judgment is affirmed.

Entered for the Court

Joel M. Carson III Circuit Judge