17-1546-cr
United States v. Goolsby

                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.



        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
16th day of July two thousand twenty.

Present:    ROSEMARY S. POOLER,
            DEBRA ANN LIVINGSTON,
            RICHARD J. SULLIVAN,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                  Appellee,

                           v.                                                 17-1546-cr
                                                                              17-2017-cr

IAN D. GOOLSBY,

                        Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:          Randa D. Maher, Maher & Pittell, LLP, Great Neck, N.Y.

Appearing for Appellee:           Tiffany H. Lee, Assistant United States Attorney, for James P.
                                  Kennedy, Jr., United States Attorney for the Western District of
                                  New York, Rochester, N.Y.

Appeal from the United States District Court for the Western District of New York (Siragusa, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED in
part and VACATED and REMANDED in part.

         Appellant Ian D. Goolsby appeals from the May 1, 2017 judgment of the United States
District Court for the Western District of New York (Siragusa, J.) convicting Goolsby of one
count of possession of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1),
841(b)(1)(C) and 851; one count of possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i); one count of felon in possession of a firearm
and ammunition, in violation of 18 U.S.C. §§ 922(g)(1), and 924(a)(2); one count of possession
of a firearm with a removed, altered or obliterated serial number, in violation of 18 U.S.C. §§
922(k) and 924(a)(1)(B); and one count of possession of a controlled substance, in violation of
21 U.S.C. §§ 844(a) and 851. Following a jury trial, Goolsby was sentenced principally to 300
months’ imprisonment. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

   I. Motion to Suppress

        Goolsby first challenges the district court’s denial of his motion to suppress the gun and
drugs recovered from a search of his car. The district court’s decision included two bases for the
stop and search at issue. Because we agree that the first basis, the traffic violation and the
subsequently discovered odor of marijuana and statement Goolsby made to Officer Miller about
smoking, provided adequate justification for the stop and search, we conclude that the district
court did not err in denying Goolsby’s motion to suppress.

        The Fourth Amendment requires that an officer making a traffic stop “have probable
cause or reasonable suspicion that the person stopped has committed a traffic violation or is
otherwise engaged in, or about to be engaged in, criminal activity.” United States v. Gomez, 877
F.3d 76, 86 (2d Cir. 2018) (internal quotation marks and citation omitted). “Although the Fourth
Amendment generally requires police to obtain a warrant before conducting a search, there is a
well-established exception for vehicle searches . . . . If a car is readily mobile and probable cause
exists to believe it contains contraband, the Fourth Amendment . . . permits police to search the
vehicle without more.” United States v. Jones, 893 F.3d 66, 70 (2d Cir. 2018) (internal quotation
marks and citations omitted).

        Turning first to the traffic stop, Miller had more than a reasonable suspicion that Goolsby
committed a traffic violation because he saw Goolsby fail to use his turn signal 100 feet before
turning, a violation of section 1163(b) of the New York State Vehicle and Traffic Law. Upon
approaching the car, Miller had probable cause to search for evidence related to a marijuana
offense. Miller smelled the odor of burnt marijuana when he approached. When asked about the
smell, Goolsby responded that he had been smoking earlier. It was thus reasonable for Miller to
believe he would find evidence of a drug offense in the car, potentially inside the shoebox or
lunchbox he observed in the vehicle’s interior. See United States v. Jackson, 652 F.2d 244, 251
n.6 (2d Cir. 1981) (noting probable cause can arise from a suspicious smell). Therefore, the
search of the car—and any containers found therein—was justified. See United States v. Wilson,
699 F.3d 235, 246 (2d Cir. 2012).



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         While Goolsby argues that Miller’s testimony is not credible because it is contradicted by
the text messages the confidential informant sent, this is an insufficient basis to reverse the
district court. We have previously said that “a factfinder who determines that a witness has been .
. . contradictory . . . in some respects may nevertheless find the witness entirely credible in the
essentials of his testimony.” Gomez, 877 F.3d at 97 (internal quotation marks and citation
omitted). Nothing contradicts Miller’s testimony relating to the traffic violation and marijuana.
Thus, the district court did not clearly err in crediting Miller’s testimony as to the traffic stop and
marijuana.

   II. Sufficiency of the Evidence

        Goolsby next challenges the sufficiency of the evidence for his conviction of knowingly
possessing a firearm despite having been convicted for a crime punishable by imprisonment for a
term exceeding one year. Goolsby primarily argues that the evidence does not support finding
that he (1) possessed the contraband at issue; or (2) did so knowingly. When reviewing the
sufficiency of the evidence, we look at the evidence in the light most favorable to the
government and will uphold the conviction “if any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt.” United States v. Lebedev, 932 F.3d 40, 48 (2d
Cir. 2019) (internal quotation marks and citation omitted).

        We disagree with Goolsby that the evidence did not support a jury finding of at least
constructive possession. “Constructive possession exists when a person has the power and
intention to exercise dominion and control over an object.” United States v. Dhinsa, 243 F.3d
635, 676 (2d Cir. 2001) (internal quotation marks and citation omitted). This determination
requires looking at whether the defendant exercised dominion and control over the place in
which the object was located. Id. Here, Goolsby was driving the rental car from which the
contraband was recovered, and the rental agreement listed Goolsby as an authorized user,
suggesting he exercised control over the car and the items in it. See United States v. Greer, 631
F.3d 608, 613 (2d Cir. 2011).

        There is also sufficient evidence to establish that Goolsby knowingly possessed the
contraband. “Proof of knowledge may be, and often is, circumstantial.” United States v.
Hastings, 918 F.2d 369, 373 (2d Cir. 1990) (citation omitted). Henry’s testimony demonstrates
that Goolsby was aware he possessed the drugs and firearm at issue. The recorded phone calls
Goolsby made to Henry from jail provide additional circumstantial evidence. While Goolsby
attempts to undermine the evidence by questioning Henry’s credibility, we must defer to the
jury’s assessments of her credibility.

   III. Jury Instructions

        Goolsby next argues that his conviction under Section 922(g) should be reversed because
the district court erred in instructing the jury that the government need not show that Goolsby
knew he had been convicted of a crime punishable by imprisonment for a term exceeding one
year, as required by the intervening case Rehaif v. United States, 139 S. Ct. 2191 (2019), and
there is no evidence in the trial record demonstrating his knowledge. The parties agree that plain



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error review applies. On plain error review, we consider whether “(1) there is an error; (2) the
error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected the
appellant’s substantial rights; and (4) the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Miller, 954 F.3d 551, 557-58 (2d Cir. 2020).

        We need not address whether the trial record contains insufficient evidence of Goolsby’s
knowledge because the final prong of the plain error standard—whether the error seriously
affects the fairness, integrity, or public reputation of judicial proceedings—cannot be satisfied
under our recent precedent. “[I]n the limited context of our fourth-prong analysis, we will
consider reliable evidence in the record on appeal that was not part of the trial record:
[Goolsby’s] presentence investigation report (PSR).” Miller, 954 F.3d at 560. Goolsby’s PSR
indicates that he had previously served a term of incarceration exceeding one year for a past
offense. This indicates that Goolsby was aware of his status as a felon and that the government
had this evidence available to introduce. “Under all of the circumstances, it is plain to us that
[Goolsby] has not satisfied the fourth plain-error prong.” Id.

   IV. Sentence

        Goolsby also challenges his sentence as procedurally unreasonable under United States v.
Townsend, 897 F.3d 66 (2d Cir. 2018). Namely, Goolsby argues that one of his prior New York
State convictions for criminal possession of a controlled substance does not constitute a
“controlled substance offense” under the Guidelines. U.S. Sentencing Guidelines Manual §
4B1.2(b). The Government agrees. Goolsby was convicted under Section 220.06(1) of the New
York Penal Law for possession of a controlled substance, but at the time of his conviction, the
New York State drug schedule included drugs not covered by the Controlled Substances Act, see
N.Y. Pub. Health Law § 3306; N.Y. Penal Law § 220.06(1). Thus, this conviction cannot be
considered a “controlled substance offense[]” for sentence enhancements under the Guidelines.
Townsend, 897 F.3d at 75. We accordingly vacate and remand for resentencing.

   V. Motion to Dismiss Indictment

        Goolsby last argues the district court erred in denying his motion to dismiss the
indictment. The district court denied the motion because it no longer retained jurisdiction. We
review a determination of lack of jurisdiction de novo. See Rivers v. McLeod, 252 F.3d 99, 101
(2d Cir. 2001).

        We find no error in the district court’s conclusion that it lacked jurisdiction to consider
Goolsby’s motion. “[T]he filing of a notice of appeal has jurisdictional implications,” Tancredi v.
Metro. Life Ins. Co., 378 F.3d 220, 225 (2d Cir. 2004), as it “confers jurisdiction on the court of
appeals and divests the district court of its control over those aspects of the case involved in the
appeal,” Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982). While,
“notwithstanding a pending appeal, a district court retains residual jurisdiction over collateral
matters,” Tancredi, 378 F.3d at 225, the question of the validity of the indictment that served as
the basis for Goolsby’s conviction cannot reasonably be found to be a matter “collateral” to the
appeal. Accordingly, we affirm the district court’s denial of Goolsby’s motion.




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        We have considered the remainder of Goolsby’s arguments and find them to be without
merit. Accordingly, the judgment of the district court hereby is AFFIRMED in part and
VACATED and REMANDED in part.

                                                  FOR THE COURT:
                                                  Catherine O’Hagan Wolfe, Clerk




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