                                                               NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                           ________________

                                  No. 12-2317
                               ________________


                       UNITED STATES OF AMERICA

                                        v.

                            BRIAN DAVID PILCH,

                                                   Appellant
                               ________________

                  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
                               ________________

                   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)

                               ________________

                                   OPINION
                               ________________

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


1
  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



                                              3
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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