                                                                              FILED
                             NOT FOR PUBLICATION
                                                                               MAY 17 2018
                      UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                         No.   17-30009

                Plaintiff-Appellee,               D.C. No.
                                                  3:16-cr-05073-RBL
 v.

DANIEL SETH FRANEY,                               MEMORANDUM*

                Defendant-Appellant.


                     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.***




           *
         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.
      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


                                           2
‘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


                                            3
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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