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w . v i l l a no v a . e du/thir dc ir c uit_2015/2991 NOT PRECEDENTIAL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: M arch 26, 2015 )

_____________________ OPINION 

____________ _________ SMITH, Circuit Judge. A jury convicted Brian William Walpole of sexual exploitation of a child (C ount I) , receipt of chi ld 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.2

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 “ l ife.” This was adjusted downward to 720
months to conform to the combine d statutory maximum for the three convictions. The
United States Distri ct Court for the Middle District of Pennsylvania granted Walpole a
120 month downward variance from the adjusted guideline sentencing range

. The
District Court impos ed 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 sent ence imposed on Counts I and
II

. Walpole appealed . We affirmed Walpole’s convictions, rejected Walpole’s
contention that the offense le vel was wrong, and determined that the criminal history category of V was incorrect. United States v. Walpole , 54 3 F. App’x 224 , 227

 28 (3d Cir. 2013). Recognizing that Walpole’s sentence might change with application of the proper criminal history categ ory of I, we concluded that t here 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 go vernment responded by see king a hearing limited to resentencing with the correct criminal history category. Walpole opposed the
go v ernment’s position and argued that the hearing should be de novo

. T he District Court concluded that the sentencing proceeding would be limited to th e “effect of the improperly calculated criminal history category on [ Walpole’s ] sentence.” A pp. 53a.3

The District Court pointed out that Walpole’s offense level and guideline sentencing range remained unchanged even though the criminal history category h ad 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, w e concluded that resentencing de novo was not required because the vaca ted count did not affect the defendant’s total offense level or guideline range

. Id. at 735.
At re sentencing , defense counsel again object ed 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.” A pp. 18 a
 19 a
. After hearing arguments regarding the sentence to be imposed, t he 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 Dist rict 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 plena ry review. See U nited States v. Diaz , 639 F.3d 616, 619 (3d Cir. 2011). In determining whether the District Court’s sentence is substantively4

s ister courts of appeal s apply a default rule requiring de novo resentencing.
In United States v. Miller , 594 F.3d 172, 179 (3d Cir. 2010) , we acknowledged th e divided approach of our sister courts of appeals, which have adopted a default rule requiring either a de novo p roceeding or a limited resentencing

. We also noted t hat the Second Circuit appl ied 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 applicab ility 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 th at resentencing had to be de novo

. In light of these circumstances, t he District Court appropriately considered whether the error requiring resentencing affect ed 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 ).5

c onclude that the District Court did not err by following Ciavarella ’s approach and conducting a limited resentencing on reman d. 3
We also conclude that there is no merit to Wal pole’s contention that h is 600 month
sentence is substantive ly un reasonable. The District Court meaningfully considere d 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 aff irm 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, W alpole did not raise on appeal any issues he would have presented in a de novo pro ceeding. 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.