2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-26-2015

USA v. Brian Walpole

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Recommended Citation

"USA v. Brian Walpole" (2015). 2015 Decisions. Paper 299.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 14-3720

_____________

UNITED STATES OF AMERICA

v.

BRIAN WILLIAM WALPOLE,

 Appellant 

_____________

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania 

District Court No. 1-10-cr-00340-001

District Judge: The Honorable Yvette Kane

_____________

 

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

March 17, 2015

Before: SMITH, JORDAN, and VAN ANTWERPEN, Circuit Judges

(Filed: March 26, 2015) 

_____________________

 OPINION

_____________________ 

 

SMITH, Circuit Judge.

A jury convicted Brian William Walpole of sexual exploitation of a child (Count 

I), receipt of child pornography (Count II), and possession of child pornography (Count 

 

 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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III). See 18 U.S.C. §§ 2251(a) and (e), 2252A(a)(2) and (b)(1), and 2252A(a)(5)(B) and 

(b)(2). The guideline sentencing range was “life.” This was adjusted downward to 720 

months to conform to the combined statutory maximum for the three convictions. The

United States District Court for the Middle District of Pennsylvania granted Walpole a 

120 month downward variance from the adjusted guideline sentencing range. The 

District Court imposed an aggregate sentence of 600 months of imprisonment, consisting 

of 360 months on Count I, 240 months on Count II consecutive to Count I, and 120 

months on Count III to be served concurrently with the sentence imposed on Counts I and 

II. 

Walpole appealed. We affirmed Walpole’s convictions, rejected Walpole’s 

contention that the offense level was wrong, and determined that the criminal history 

category of V was incorrect. United States v. Walpole, 543 F. App’x 224, 22728 (3d 

Cir. 2013). Recognizing that Walpole’s sentence might change with application of the 

proper criminal history category of I, we concluded that there was no need to address 

Walpole’s assertion that his sentence was substantively unreasonable. 

On remand and represented by new counsel, Walpole filed objections to the 

presentence report. The government responded by seeking a hearing limited to 

resentencing with the correct criminal history category. Walpole opposed the 

government’s position and argued that the hearing should be de novo. The District Court

concluded that the sentencing proceeding would be limited to the “effect of the 

improperly calculated criminal history category on [Walpole’s] sentence.” App. 53a. 

 
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The District Court pointed out that Walpole’s offense level and guideline sentencing 

range remained unchanged even though the criminal history category had been reduced 

from V to I. The Court concluded this made Walpole’s case similar to that of the 

defendant in United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013). In that case, we 

concluded that resentencing de novo was not required because the vacated count did not 

affect the defendant’s total offense level or guideline range. Id. at 735. 

At resentencing, defense counsel again objected to the limited hearing and placed 

on the record an objection to the grouping of his offenses under U.S.S.G. § 2G2.1. The 

District Court acknowledged the objection and stated that the arguments counsel “wanted 

to raise when [he] thought we were having a hearing de novo, are preserved.” App. 

18a19a. After hearing arguments regarding the sentence to be imposed, the Court again 

imposed a 600 month sentence. This timely appeal followed.1

Walpole contends that the District Court erred by failing to conduct a de novo

sentencing. In addition, Walpole asserts that the 600 month sentence is substantively 

unreasonable.2 

According to Walpole, “the sentencing procedure on remand is conducted de novo

unless the court of appeals specifically provides instructions to the contrary.” 

Appellant’s Br. at 10. As support for his position, Walpole points out that four of our 

 

1 The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise appellate 

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

2 Whether the District Court erred by conducting a limited resentencing presents a legal 

question subject to plenary review. See United States v. Diaz, 639 F.3d 616, 619 (3d Cir. 

2011). In determining whether the District Court’s sentence is substantively 
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sister courts of appeals apply a default rule requiring de novo resentencing. 

In United States v. Miller, 594 F.3d 172, 179 (3d Cir. 2010), we acknowledged the 

divided approach of our sister courts of appeals, which have adopted a default rule 

requiring either a de novo proceeding or a limited resentencing. We also noted that the 

Second Circuit applied a hybrid approach depending on the circumstances. Id. at 180. It

was unnecessary for us to adopt a default rule given the circumstances and the 

applicability of the “‘sentencing package doctrine.’” Id. (quoting United States v. Davis, 

112 F.3d 118, 122 (3d Cir. 1997)). That doctrine requires conducting a de novo

resentencing “[w]hen a conviction on one or more interdependent counts is vacated on 

appeal,” unless directed otherwise. Id. at 18182. 

Ciavarella, however, instructs that errors do not always require a de novo

resentencing. 716 F.3d at 735. It concluded that a limited resentencing was permissible 

where neither the total offense level nor guideline range had been affected by the error. 

Id.

Our adjudication of Walpole’s first appeal vacated his sentence and remanded his 

case for resentencing, but it did not vacate any of his counts of conviction. Nor did our 

decision and judgment specify that resentencing had to be de novo. In light of these 

circumstances, the District Court appropriately considered whether the error requiring 

resentencing affected Walpole’s total offense level and guideline range. Because 

Walpole’s total offense level and guideline range were unaffected by the error, we 

 

unreasonable, we apply an abuse of discretion standard. United States v. Tomko, 562 

F.3d 558, 567 (3d Cir. 2009).
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conclude that the District Court did not err by following Ciavarella’s approach and 

conducting a limited resentencing on remand.3

We also conclude that there is no merit to Walpole’s contention that his 600 month 

sentence is substantively unreasonable. The District Court meaningfully considered the 

arguments of the parties and discussed the sentencing factors in 18 U.S.C. § 3553(a). It 

explained that the sentence was warranted given Walpole’s sexual exploitation of a child 

and the quantity and nature of the images in Walpole’s child pornography collection. 

Because a reasonable sentencing court could “have imposed the same sentence on 

[Walpole] for the reasons the district court provided,” we will affirm the judgment of the 

District Court. United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009).

 

3 Although the District Court advised that Walpole’s objection to the limited resentencing 

and the arguments he wanted to raise in a de novo proceeding were preserved, Walpole 

did not raise on appeal any issues he would have presented in a de novo proceeding. 

Whether any of these issues would militate in favor of a de novo proceeding is unknown 

and has not been a factor in our analysis.