NOT PRECEDENTIAL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.
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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.