                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 18-1740
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                  ERIC JAMES STULL,
                                               Appellant
                                    ______________

                       Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. No. 2-16-cr-00125-001)
                        District Judge: Hon. Donetta W. Ambrose
                                     ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                  January 18, 2019
                                  ______________

           Before: GREENAWAY, JR., SHWARTZ, and PORTER, Circuit Judges.

                                 (Filed: January 22, 2019)

                                     ______________

                                        OPINION
                                     ______________

SHWARTZ, Circuit Judge.




       
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
      Defendant Eric James Stull appeals his sentence for producing, distributing, and

possessing child pornography. Because the District Court’s sentence was procedurally

and substantively reasonable, we will affirm.

                                             I

      Stull sexually assaulted his adopted daughter for a ten-year period beginning when

she was less than two years old. He created 106 photographs and thirty-nine videos of

his assaults. Stull was arrested by the Pennsylvania State Police and charged with Rape-

Less than 13 years of Age, Involuntary Deviate Sexual Intercourse with a Child,

Unlawful Contact with a Minor, and Corruption of Minors, all under Pennsylvania law.

Stull was convicted and sentenced in the Pennsylvania Court of Common Pleas to 340 to

640 years’ imprisonment. Stull was also charged in a federal indictment with thirty-nine

counts of Production of Material Depicting the Sexual Exploitation of a Minor, 18 U.S.C.

§ 2251(a), (e), one count of Distribution of Material Depicting the Sexual Exploitation of

a Minor, 18 U.S.C. § 2252(a)(2), and one count of Possession of Material Depicting the

Sexual Exploitation of a Minor, 18 U.S.C. § 2252(a)(4)(B). Stull pleaded guilty.

      The Presentence Report (“PSR”) calculated a total offense level of 43, which

triggered a life sentence. Because the Guidelines range exceeds the highest statutory

maximum sentence for any count of conviction, the PSR stated that the range would have

to be adjusted pursuant to U.S.S.G. § 5G1.2(d). Stull did not object to the PSR

calculation, but at sentencing he sought a 240-month sentence. The Government

requested a sentence commensurate with the 340-year state sentence to “ensure that this

defendant never sees the light of day.” App. 179-80. The District Court considered these

                                            2
requests as well as statements from Stull, his sons, and his wife. Thereafter, the Court

stated that this was “an entirely heinous crime . . . the worst of these types of cases that [it

has] seen,” App. 200, and recognized Stull’s personal history, including his experience

with Post-Traumatic Stress Disorder (“PTSD”) from his military service, the state court

sentence, the goal of deterring him from future similar conduct, the need to protect the

public and his family, and the need for just punishment.

       The District Court adopted the PSR’s offense level calculation and sentenced Stull

to a total of 338 years, one month, and eleven days’ imprisonment. “This term

consist[ed] of 20 years imprisonment at each of Counts 1-17 to be served consecutively;

15 years at each of Counts 18-39 and 20 years at each of Counts 40-41 to be served

concurrently to each other and to Counts 1-17.” App. 3. The sentence was ordered to run

concurrent with Stull’s state sentence. Stull was also sentenced to a term of supervised

release of life on all counts to run concurrently. After the sentence was imposed, Stull

questioned its procedural reasonableness, challenging the Court’s “reliance on [the]

nature and circumstances of the offense as a foremost factor.” App. 216. In response, the

Court noted “I think I referred to all of them.” Id. Stull appeals.

                                              II1

       Before the District Court, Stull argued that his sentence was procedurally

unreasonable because the Court put undue weight on the nature of his offense. On

appeal, he makes additional arguments of procedural unreasonableness and claims that


       1
       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                               3
his sentence is substantively unreasonable because it amounts to a sentence greater than

that often imposed for murder.

       For arguments that were not raised before the District Court, we review for plain

error.2 United States v. Flores-Mejia, 759 F.3d 253, 256 (3d Cir. 2014) (en banc). For

arguments that were raised, we review for abuse of discretion. See United States v.

Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). The party challenging the sentence

bears the burden of demonstrating procedural and substantive unreasonableness. Id. We

will first review Stull’s arguments concerning procedural unreasonableness.

                                               A

       In reviewing the procedural reasonableness of a district court’s sentence, we focus

on whether the district court: (1) calculated the applicable Guidelines range,

(2) considered any departure motions, and (3) meaningfully considered all relevant 18

U.S.C. § 3553(a) factors, including any variance requests. United States v. Merced, 603

F.3d 203, 215 (3d Cir. 2010). “[A]bsent any significant procedural error, we must ‘give

due deference to the district court’s determination that the § 3553(a) factors, on a whole,’

justify the sentence.” Tomko, 562 F.3d at 568 (quoting Gall v. United States, 552 U.S.

38, 51 (2007)).




       2
         To establish plain error, a litigant must demonstrate: (1) an error; (2) that is clear
or obvious; and (3) that affects the litigant’s substantial rights. Virgin Islands v. Mills,
821 F.3d 448, 456 (3d Cir. 2016). If all three prongs are satisfied, our Court has
discretion to remedy the error “only if . . . the error ‘seriously affects the fairness,
integrity, or public reputation of judicial proceedings.’” Id. at 457 (quoting Johnson v.
United States, 520 U.S. 461, 467 (1997)).
                                               4
       Stull’s first argument, the only claim that he preserved, is that the District Court

misapplied the § 3553(a) factors at the third step of the sentencing procedure. See

Merced, 603 F.3d at 215. He argues that the Court failed to make an appropriate

individualized assessment under the § 3553(a) factors by placing improper weight on the

nature of his offense. Stull’s argument fails. While the Court emphasized the “heinous”

nature of his crimes “first and foremost,” App. 200, the Court also discussed other

§ 3553(a) factors, including Stull’s personal history and PTSD, deterrence, public

protection, and just punishment. Thus, the Court considered his offense conduct over a

ten-year period and other § 3553(a) factors.3

       Stull’s other procedural arguments that (1) the District Court’s sentence violated

U.S.S.G. § 5G1.2(d), (2) the Court failed to explain why Stull’s proposed 240-month

sentence was insufficient, and (3) the Court ceded to the Government’s desire for

insurance on the state sentence, were not preserved and are therefore subject to plain

error review. As explained below, the Court committed no errors.

       First, the District Court did not err in issuing consecutive sentences amounting to

338 years. The Guidelines provide that


       3
         Indeed, Stull admits that the District Court “mention[ed] all the applicable
factors.” Def.’s Br. at 21 (quoting App. 216). So Stull takes issue not with whether the
Court considered the relevant § 3553(a) factors, but with how the Court weighed those
factors. We have characterized such an argument as a challenge to the substantive
reasonableness of the sentence imposed. See United States v. Fountain, 792 F.3d 310,
323 (3d Cir. 2015) (“Fountain’s argument ultimately amounts to a challenge of
substantive unreasonableness, as a complaint that a district court’s choice of sentence did
not afford certain factors enough weight ‘is a substantive complaint, not a procedural
one.’” (quoting Merced, 603 F.3d at 217)). For the reasons set forth herein, this
challenge lacks merit.
                                                5
       [i]f the sentence imposed on the count carrying the highest statutory
       maximum is less than the total punishment, then the sentence imposed on
       one or more of the other counts shall run consecutively, but only to the extent
       necessary to produce a combined sentence equal to the total punishment. In
       all other respects, sentences on all counts shall run concurrently, except to
       the extent otherwise required by law.

U.S.S.G. § 5G1.2(d). “The ‘total punishment’ is determined by the adjusted combined

offense level.” United States v. Chorin, 322 F.3d 274, 278 (3d Cir. 2003) (holding

defendant with offense level sentence of 360 months was properly sentenced to

consecutive sentences of 240 and 120 months). Here, Stull’s total offense level was 43

and the Guidelines custodial range was life, but none of the offenses carried a life term.

As a result, the Court followed the Guidelines directive by issuing a combination of

consecutive and concurrent maximum sentences to reach the type of sentence that the

Guidelines contemplated. See United States v. Lewis, 594 F.3d 1270, 1275-76 (10th Cir.

2010) (holding no error in issuing consecutive maximum sentence for each crime of

conviction to arrive at a sentence of 330 years where proper Guidelines’ sentence was

life but no offense carried a life sentence); id. at 1275 (“[W]e fail to see how [the

defendant] can complain of being sentenced to any term of years—after all, as a practical

matter the longest that he can be incarcerated is for the rest of his life.”)

       Second, the District Court did not err in not explicitly addressing Stull’s request

for a 240-month sentence. It did so, however, by implication. The Court explained why

the sentence it selected was necessary. Moreover, because the Guidelines prescribed a

life sentence and the maximum statutory sentences Stull faced exceeded 300 years, a

request for a 240-month sentence, predicated on a generalized estimate of Stull’s life


                                               6
expectancy represents a sentence of less than seven percent of the maximum sentence

under § 5G1.2(d) of the Guidelines, and, as the Court explained, a greater sentence was

needed to punish Stull and protect the public.

       Third, Stull’s contention that the District Court ceded to the prosecutor’s request

to ensure that he serve the sentence the state imposed is without merit. The Court

acknowledged that the federal and state sentences were parallel but that it could not count

on the federal sentence being unnecessary. More significantly, however, the Court’s

analysis did not rest on the prosecutor’s request but instead demonstrated thoughtful

consideration of Stull’s crimes and other § 3553(a) factors.

       For these reasons, Stull’s sentence is procedurally reasonable.

                                             B

       Having concluded that the sentence “is procedurally sound, we will affirm it

unless no reasonable sentencing court would have imposed the same sentence on that

particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568.

       Stull argues that his sentence is substantively unreasonable because it amounts to

more than his actual life, and it is greater than the sentence imposed on many murderers.

A sentence that exceeds Stull’s life expectancy is not, by itself, substantively

unreasonable. United States v. Ward, 732 F.3d 175, 186 (3d Cir. 2013) (“The fact that

[the defendant] may die in prison does not mean that his sentence is unreasonable.”).

Furthermore, a sentence of this magnitude for this type of offense is not unprecedented.

See United States v. Christie, 624 F.3d 558, 574 (3d Cir. 2010) (affirming ninety-year

sentence for fifty year old defendant who helped run a network that allowed for the

                                              7
trading of hundreds of thousands of images of child pornography); United States v.

Betcher, 534 F.3d 820, 827-28 (8th Cir. 2008) (affirming a 750-year sentence for child

pornography, which “for practical purposes—is a life sentence”); United States v.

Johnson, 451 F.3d 1239, 1244 (11th Cir. 2006) (per curiam) (affirming 140-year sentence

for child pornography conviction as a reasonable sentence within the Guidelines range of

life, despite the defendant’s request for a 30-year sentence).

       Finally, the District Court’s “weighing and consideration” of the § 3553(a) factors

“is exactly the type of ‘reasoned appraisal’ to which we defer on review.” United States

v. Styer, 573 F.3d 151, 155 (3d Cir. 2009) (quoting Kimbrough v. United States, 552 U.S.

85, 111 (2007)); United States v. Reibel, 688 F.3d 868, 872 (7th Cir. 2012) (holding that

“sentencing judges have discretion over how much weight to give a particular factor” and

that “[a]lthough the weighting must fall within the bounds of reason, those bounds are

wide” (internal quotation marks omitted)).

       Considering the totality of the circumstances, including the repeated and extreme

nature of Stull’s offenses, its impact on the victim and other family members, and the

presence of few mitigating factors, we cannot say that no reasonable sentencing court

would have imposed the same sentence on Stull.

                                             III

       For the foregoing reasons, we will affirm.




                                              8
