                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       NOV 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-10345

                Plaintiff-Appellee,             D.C. No. 1:14-cr-00064-FMTG

 v.
                                                MEMORANDUM *
FRANKLIN JOHN SALAS,

                Defendant-Appellant.

                  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).
      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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