United States of America v. Daniel Seth Franey

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL SETH FRANEY,
Defendant-Appellant.
No. 17-30009
D.C. No.
3:16-cr-05073-RBL
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, United States District Judge, Presiding
Submitted May 10, 2018**
Seattle, Washington
Before: GOULD and IKUTA, Circuit Judges, and TUNHEIM, Chief District
Judge.***
FILED
MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable John R. Tunheim, Chief United States District Judge for
the District of Minnesota, sitting by designation.

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Defendant-Appellant Daniel Franey appeals his above-guideline sentence of 72
months imposed following his guilty plea to unlawful possession of a machine gun
under 18 U.S.C. § 922(o). Franey argues that the sentencing judge committed
procedural error by impermissibly considering his religious and political views,
improperly considering his mental health, and failing to adequately explain the
upward variance. He also argues that his sentence was substantively unreasonable
because the sentencing judge failed to consider mitigating circumstances and
improperly weighed the statutory sentencing factors. For the reasons that follow, we
affirm the sentence.
I.
On appeal, we consider procedural error first. United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). We review Franey’s procedural arguments for
plain error because he did not object at the time of sentencing. See United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010).
A sentencing court must consider the parties’ recommended sentences and
decide whether they are supported by the § 3553(a) factors. United States v. Petri,
731 F.3d 833, 842 (9th Cir. 2013). The court’s explanation must “communicate[] that
the parties’ arguments have been heard, and that a reasoned decision has been made.”
Carty, 520 F.3d at 992. Even a brief statement of reasons is sufficient “[i]f the record
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‘makes clear that the sentencing judge listened to each argument’ and ‘considered the
supporting evidence.’” United States v. Sandoval-Orellana, 714 F.3d 1174, 1181 (9th
Cir. 2013) (quoting Rita v. United States, 551 U.S. 338, 358 (2007)). A sentencing
court’s failure to explain why it accepts or rejects a party’s position “is not procedural
error where ‘adequate explanation’ may ‘be inferred from the PSR or the record as a
whole.’” Id. (quoting Carty, 520 F.3d at 992).
The sentencing judge did not commit procedural error in sentencing Franey.
The record shows that the sentencing judge listened to the parties’ arguments and
considered the supporting evidence. He properly considered Franey’s beliefs as
relevant to the circumstances of the offense and specific sentencing factors, see
Dawson v. Delaware, 503 U.S. 159, 165 (1992), and properly considered Franey’s
mental health as it related to relevant sentencing factors. The sentencing judge
adequately justified the upward variance by relying on “the seriousness of the
offense,” § 3553(a)(2)(A), and the need “to protect the public from further crimes,”
§ 3553(a)(2)(C).
II.
We review the substantive reasonableness of a sentence for abuse of discretion.
Carty, 520 F.3d at 993. “[A] district court abuses its discretion when it makes an error
of law, when it rests its decision on clearly erroneous findings of fact, or when we are
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left with a definite and firm conviction that the district court committed a clear error
of judgment.” United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012) (quoting
United States v. Hinkson, 585 F.3d 1247, 1260 (9th Cir. 2009) (en banc)). A variance
is not presumed to be unreasonable, Carty, 520 F.3d at 993, and we must give due
deference to the sentencing judge’s decision that the relevant factors justify the extent
of the variance, Gall v. United States, 552 U.S. 38, 59-60 (2007). Furthermore, “[t]he
weight to be given the various [sentencing] factors in a particular case is for the
discretion of the district court.” United States v. Burgos-Ortega, 777 F.3d 1047, 1056
(9th Cir. 2015) (quoting United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th
Cir. 2009)). Here, the sentencing judge did not make an error of law, and his
determination that the aggravating factors outweighed the mitigating factors was
supported by inferences that could be drawn from the record. The sentencing judge
did not abuse his discretion, and the sentence imposed was not substantively
unreasonable.
AFFIRMED.
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