NOT PRECEDENTIAL

                           UNITED STATES COURT OF APPEALS
                                FOR THE THIRD CIRCUIT


                                           No. 09-3051


                               UNITED STATES OF AMERICA

                                                v.

                                   DANIEL EARL EYSTER,
                                     a/k/a Daniel Eyster


                                   DANIEL EARL EYSTER,
                                                Appellant


                       On Appeal from the United States District Court
                             for the Eastern District of Pennsylvania
                              District Court No. 5-08-cr-00618-001
                      District Judge: The Honorable James Knoll Gardner


                       Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                        June 21, 2010

                    Before: SMITH, FISHER, and COWEN, Circuit Judges

                                      (Filed: July 14, 2010)


                                            OPINION


SMITH, Circuit Judge.


       Daniel Eyster pleaded guilty to one count of sexual exploitation of children, in violation of

18 U.S.C. § 2251(a) and (e), and one count of possession of child pornography, in violation of 18

U.S.C. § 2252(a)(4)(B). The District Court sentenced him to 840 months in prison. Eyster appeals
this sentence. We will affirm.1

       Eyster first argues that he is entitled to re-sentencing because the Pre-Sentence Investigation

Report (“PSR”), which the District Court adopted and used as the starting point in determining his

sentence, contained an error. We accept his premise but reject his conclusion.

       The PSR determined that Eyster’s Total Offense Level was 41, and Eyster does not challenge

this conclusion. It assigned Eyster to criminal history Category V, pursuant to U.S.S.G. § 4B1.5,

based on its determination that Eyster had a prior “sex offense conviction”—specifically, a 1988 rape

conviction under the Uniform Code of Military Justice (“UCMJ”). Using these inputs, the Probation

Office calculated his Guidelines range to be 360 months to life. The PSR noted, however, that the

statutes Eyster admitted to violating in his guilty plea provided for no more than 70 years in prison.

Therefore, it set Eyster’s advisory Guidelines range at 360 to 840 months. Eyster did not object to

any of these calculations. As noted, the District Court adopted the PSR and sentenced Eyster to 840

months in prison. If the PSR had not counted the 1988 military conviction as a prior “sex offense

conviction” for purposes of U.S.S.G. § 4B1.5, that provision would have been inapplicable to Eyster,

and he would have been assigned to criminal history Category II rather than Category V. Under that

scenario, Eyster’s Guidelines range would have been 360 to 840 months—exactly the same range

generated by applying § 4B1.5.

       On appeal, Eyster argues that the District Court erred by increasing his criminal history from

Category II to Category V, because his 1988 conviction under the UCMJ was not a qualifying prior

“sex offense conviction” as defined by § 4B1.5. Eyster did not object to the PSR calculation in the

District Court. Therefore, we review for plain error. See United States v. Knight, 

, 207-


       1
          The District Court had jurisdiction under 18 U.S.C. § 3231. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).

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08 (3d Cir. 2001). Under this standard, Eyster must establish (1) that an error was committed, (2)

that the error was plain, i.e., clear or obvious, (3) that the error affected his substantial rights, and

(4) that the error seriously affected the fairness or integrity of the proceedings. 

concedes, and we agree, that Eyster’s 1988 conviction under the UCMJ was

not a qualifying “sex offense conviction” for purposes of § 4B1.5. Therefore, Eyster’s advisory

Guidelines range should have been calculated using criminal history Category II, not Category V.

This was error, and we assume for present purposes that it was “clear or obvious.” See 

however, the applicable Guidelines range was the same—360 to 840 months—under

either criminal history Category. Because this mistake did not result in the calculation of an

incorrect Guidelines range, we conclude that it did not affect Eyster’s substantial rights.2

          Next, Eyster argues that the District Court erred by failing to consider his argument, based

on Kimbrough v. United States, 

(2007), that he deserved a downward variance because

the applicable child pornography Guidelines are based upon congressional mandates and not

empirical evidence developed by the Sentencing Commission. This argument is foreclosed by

United States v. Lopez-Reyes, 

, 671 (3d Cir. 2009), in which we held that “a district

court is not required to engage in ‘independent analysis’ of the empirical justifications and

deliberative undertakings that led to a particular Guideline.” 

States v. Aguilar-

Huerta, 

, 368 (7th Cir. 2009), and United States v. Duarte, 

, 530 (5th Cir.

2009)).


          2
         In Knight, we held that “an error in application of the Guidelines that results in
use of a higher sentencing range should be presumed to affect the defendant’s substantial

. Eyster does not rely on Knight, and with good reason. Here,
the erroneous application of § 4B1.5 did not generate “a higher sentencing range.”
Rather, it yielded the same Guidelines range that would have resulted had the PSR
correctly assigned Eyster to criminal history Category II.

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       Finally, Eyster argues that his 840-month sentence is substantively unreasonable. To succeed

on this claim, Eyster must establish that “no reasonable sentencing court” could have sentenced him

to 840 months in prison for the reasons the District Court provided. United States v. Tomko, 

, 568 (3d Cir. 2009) (en banc). After carefully considering the record, the sentencing factors

of 18 U.S.C. § 3553(a), and the District Court’s explanation of sentence, we have no difficulty in

concluding that Eyster’s sentence is reasonable. The judgment will be affirmed.




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