NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-2317
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UNITED STATES OF AMERICA
v.
BRIAN DAVID PILCH,
Appellant
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 2-11-cr-00179-001)
District Judge: Honorable Gene E. K. Pratter
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Submitted Under Third Circuit LAR 34.1(a)
June 11, 2013
Before: McKEE, Chief Judge, AMBRO, and NYGAARD, Circuit Judges
(Opinion filed : September 11, 2013)
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OPINION
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AMBRO, Circuit Judge
Brian David Pilch pled guilty to possession of child pornography in violation of
18 U.S.C. § 2252(a)(4)(B) after police discovered 85 images of child pornography on his
home computer. The District Court sentenced Pilch to 57 months’ imprisonment. He
argues that his sentence was procedurally and substantively unreasonable.1
We review both the procedural and the substantive reasonableness of a district
court’s sentence for abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007);
United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc). We must “ensure
that the [D]istrict [C]ourt committed no significant procedural error, such as failing to
calculate (or improperly calculating) the [U.S. Sentencing] Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C] § 3553(a) factors, selecting a
sentence based on clearly erroneous facts, or failing to adequately explain the chosen
sentence.” Gall, 552 U.S. at 51. If the sentence is procedurally sound, we then consider
if it is substantively reasonable given “the totality of the circumstances.” Id. If the
sentence is within the applicable Guidelines range, we may presume that the sentence is
reasonable. Rita v. United States, 551 U.S. 338, 350–51 (2007). Any objection that was
not raised before the District Court at sentencing is reviewed for plain error. United
States v. Ward, 626 F.3d 179, 183 (3d Cir. 2010).
Pilch argues that U.S.S.G § 2G2.2(b)(7)(A) frustrates Congressional intent, that
the District Court committed procedural errors in sentencing, and that his sentence is
substantively unreasonable. First, Pilch challenges the two-level increase for possessing
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The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have appellate
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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85 images of child pornography. He argues that increasing the offense level based on the
number of images possessed is inappropriate because 18 U.S.C. § 2252(a)(4)(B)
criminalizes all possession of “1 or more” images. Pilch did not oppose this adjustment
before the District Court, and he does not provide authority or precedent in support of his
interpretation of Congressional intent. His argument thus fails.
Pilch also makes two arguments that the Court’s sentence was procedurally
unreasonable. First, he believes the Court erred when it denied his request to vary from
the child pornography sentencing ranges under U.S.S.G. § 2G2.2, which he argues are
not based on empirical data. We have held that a district court may vary from the
sentencing ranges determined under § 2G2.2 if the court articulates a policy disagreement
with these Guidelines. United States v. Grober, 624 F.3d 592 (3d Cir. 2010). However,
“if a district court does not in fact have a policy disagreement with § 2G2.2, it is not
obligated to vary on this basis.” Id. at 609. Here, the District Court considered the
Guidelines and understood its authority to vary from them. Its decision to sentence
within that range was not an abuse of discretion.
Next, Pilch argues that the District Court’s sentence is procedurally unreasonable
because the Court failed to consider all of the § 3553(a) factors. We disagree. The Court
reviewed all of the relevant factors, including the nature of the offense, Pilch’s history
and characteristics, and the need for the sentence imposed.
Finally, Pilch argues that the sentence was substantively unreasonable. Given the
totality of the circumstances, we find this argument unpersuasive. The Court considered
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Pilch’s arguments and applied a sentence within the applicable Guidelines range. We
discern no abuse of discretion.
For the foregoing reasons, we affirm.
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