                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 11-3075
                                _____________

                       UNITED STATES OF AMERICA

                                       v.

                             MARK PEIRITSCH,
                                            Appellant.
                              _____________

                  Appeal from the United States District Court
                    for the Western District of Pennsylvania
                        (Criminal No. 2-09-cr-00310-001)
                 District Judge: Honorable Terrence F. McVerry
                                 _____________

                  Submitted Under Third Circuit LAR 34.1(a)
                               May 22, 2012

       Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges

                        (Opinion Filed : June 28, 2012 )
                               _____________

                          OPINION OF THE COURT
                              _____________

FUENTES, Circuit Judge.

      The appellant, Mark Peiritsch, appeals from the judgment imposed by the

United States District Court for the Western District of Pennsylvania, claiming

ineffective assistance of counsel.   We conclude that Peiritsch’s claim is not
properly raised on direct appeal. We therefore deny Peiritsch’s claim without

prejudice to his right to raise a claim on collateral attack under 28 U.S.C. § 2255.

                                          I.

       Because we write primarily for the parties, we set forth only the facts and

history relevant to our conclusion.

       In June 2009, upon discovering that Peiritsch was sharing child

pornography over the Internet, the Pennsylvania State Police executed a search

warrant at Peiritsch’s residence. A forensic analysis of several electronic devices

revealed a large collection of child pornography, approximating several terabytes

of data. During the search, Peiritsch consented to an interview and admitted to

downloading child pornography for sexual gratification. He further admitted that

he understood how file-sharing software worked. On November 17, 2009, a

federal grand jury in the Western District of Pennsylvania returned an indictment

charging Peiritsch with one count of possession of material depicting the sexual

exploitation of a minor, in violation of 18 U.S.C. § 2252(a)(4)(B).         Peiritsch

ultimately pleaded guilty to the indictment.

       Under the Sentencing Guidelines, Peiritsch’s base offense level was 18.

U.S.S.G. § 2G2.2(a)(1). With the applicable § 2G2.2 sentencing enhancements,

however, his offense level increased to 33. The fifteen levels of enhancements

included two levels for material involving prepubescent minors or minors under

age twelve (§ 2G2.2(b)(2)); two levels for distributing material (§ 2G2.2(b)(3)(F));

four levels for material portraying sadistic or masochistic conduct, or other


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depictions of violence (§ 2G2.2(b)(4)); two levels for the use of a computer

(§ 2G2.2(b)(6)); and five levels for possessing more than six hundred images of

child pornography (§ 2G2.2(b)(7)(D)). After a three-level downward adjustment

for acceptance of responsibility, Peiritsch’s offense level was 30, resulting in an

advisory Guidelines range of 97-121 months’ imprisonment.1

      Prior to sentencing, Peiritsch’s counsel submitted a memorandum to the

District Court asking it to exercise its discretion by disregarding the § 2G2.2

sentencing enhancements in light of this Court’s decision in United States v.

Grober, 624 F.3d 592 (3d Cir. 2010), which held that a district court may refuse to

apply the enhancements if it disagrees with the policy embodied in that section.

The District Court denied this request, but granted the equivalent of a six-level

variance. Ultimately, Peiritsch was sentenced to 51 months’ incarceration. This

appeal followed.2

                                        II.

      Peiritsch’s sole argument on appeal is that his trial counsel was ineffective

for failing to object to the application of the § 2G2.2 sentencing enhancements to

his sentence. He maintains that this failure significantly increased the applicable

Guidelines range.


1
  Because Peiritsch faced a statutory maximum term of ten years’ imprisonment,
the upper end of his advisory range was capped at 120 months. See U.S.S.G.
§ 5G1.1(c)(1).
2
  The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. §1291.


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         However, subject to certain narrow exceptions, it is well settled that we do

not entertain claims of ineffective assistance of counsel on direct appeal. Gov’t of

Virgin Islands v. Lewis, 620 F.3d 359, 371 (3d Cir. 2010) (citing United States v.

McLaughlin, 386 F.3d 547, 555 (3d Cir. 2004)). “The rationale underlying this

preferred policy is that oft-times such claims involve allegations and evidence that

are either absent from or not readily apparent on the record.” United States v.

Gambino, 788 F.2d 938, 950 (3d Cir. 1986). Thus, unless the record is sufficient

to allow determination of the issue, the proper avenue for relief is on collateral

appeal. United States v. Thornton, 327 F.3d 268, 271 (3d Cir. 2003).

         Peiritsch does not contend, nor do we find, that this case falls within the

narrow exception to our standard practice. We will therefore dismiss his claim

without prejudice to his right to assert it on collateral attack under 28 U.S.C.

§ 2255. See Gov’t of Virgin Islands, 620 F.3d at 372.

                                          III.

         For the foregoing reasons, we will affirm the judgment of the District

Court.




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