                                                             NOT PRECEDENTIAL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.
                                            1
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.


                                           2
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
                                              3
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).
                                         4
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.
                                           5
