United States of America v. Franklin John Salas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANKLIN JOHN SALAS,
Defendant-Appellant.
No. 16-10345
D.C. No. 1:14-cr-00064-FMTG
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances M. Tydingco-Gatewood, Chief Judge, Presiding
Submitted November 15, 2017 **
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Franklin John Salas appeals from the district court’s judgment and
challenges the 108-month sentence imposed following his guilty-plea conviction
for attempted possession of methamphetamine with intent to distribute, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-10345
Salas contends that his sentence is substantively unreasonable because the
district court (i) double counted by applying a Guidelines enhancement for
leadership and also justifying a high-end sentence for that same reason, (ii) used
his negative drug tests, an ostensibly mitigating factor, as an aggravating factor,
and (iii) used his failure to cooperate fully with the government as an aggravating
factor. The district court did not abuse its discretion. See Gall v. United States,
552 U.S. 38, 51 (2007). The within-Guidelines sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of
the circumstances. See Gall, 552 U.S. at 51. The record belies Salas’s argument
that the district court treated his negative drug tests as an aggravating factor.
Moreover, the district court properly considered Salas’s leadership role and lack of
cooperation. See 18 U.S.C. § 3553(a); United States v. Christensen, 732 F.3d
1094, 1100-01 (9th Cir. 2013) (district court may weigh factors already accounted
for in the Guidelines calculation when selecting the sentence under section
3553(a)).
AFFIRMED.

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