                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4827


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

STEWARD SCHER, a/k/a DadnNC, a/k/a Carmine4u,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00109-RJC-1)


Submitted:   July 14, 2010                 Decided:   July 26, 2010


Before WILKINSON, MOTZ, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Claire J. Rauscher, Executive Director, Matthew R. Segal,
FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville,
North Carolina, for Appellant.     Edward R. Ryan, United States
Attorney,   Cortney  S.   Escaravage,   Assistant  United States
Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

                  Steward Scher appeals his 180-month sentence following

a guilty plea to possession, transportation and distribution of

child       pornography            in   violation        of    18    U.S.C.A.        § 2252(a)(1),

(a)(2), (a)(4)(B) (West Supp. 2010).                               On appeal, Scher contends

that the district court procedurally erred by enhancing his base

offense       level          by     five    levels       pursuant          to   U.S.    Sentencing

Guideline Manual (“USSG”) § 2G2.2(b)(3)(C) (2008).                                      Scher also

argues that the length of his sentence is unreasonable.                                          We

affirm.

                  We        first       address      Scher’s         claim       of      procedural

sentencing error.                   Scher contends, as he did below, that the

USSG § 2G2.2(b)(3)(C) enhancement was not applicable in his case

because       the           Government         failed         to     establish         that   Scher

distributed pornography to a minor.                                The district court found

that internet               chatroom       communications           with    “AmyP12”      justified

application            of    the     enhancement, 1       rejecting         Scher’s      contention

that       both    he       and     “AmyP12”      were    adults       using     a     role-playing

chatroom.




       1
       “AmyP12” conversed with Scher in a chatroom, and Scher
transferred pornographic material to her over the internet.



                                                    2
             Distribution to a minor is defined as “the knowing

distribution to an individual who is a minor at the time of the

offense.”        USSG § 2G2.2, cmt. n.1.            A minor is:

      (A) an individual who had not attained the age of 18
      years; (B) an individual, whether fictitious or not,
      who a law enforcement officer represented to a
      participant (i) had not attained the age of 18 years,
      and (ii) could be provided for the purposes of
      engaging in sexually explicit conduct; or (C) an
      undercover law enforcement officer who represented to
      a participant that the officer had not attained the
      age of 18 years.

Id.

             The Government must prove the facts needed to support

a sentencing enhancement by a preponderance of the evidence.

United States v. Milam, 443 F.3d 382, 386 (4th Cir. 2006).                                 In

determining       whether        a    sentencing    enhancement      applies,        we    may

consider     hearsay,           provided     that    the        information      bears      a

“sufficient       indicia        of    reliability    to   support        its   accuracy.”

United States v. Wilkinson, 590 F.3d 259, 269 (4th Cir. 2010);

see USSG § 6A1.3(a), p.s.                 When reviewing the district court’s

application of the sentencing guidelines, we review questions of

law   de    novo     and    findings        of    fact,    such     as    whether      Scher

distributed child pornography to a minor, for clear error.                                See

United States v. Osborne, 514 F.3d 377, 387 (4th Cir. 2008).

             In United States v. Hansel, 524 F.3d 841 (8th Cir.

2008),     the    Eighth        Circuit    addressed      the    application      of      USSG

§ 2G2.2(b)(3)(C)           to    facts     similar    to    those        presented     here.

                                              3
Using    an   internet          chatroom,      Hansel         provided         images   depicting

child    pornography            to    an   individual         who    used      the   screen     name

“beccajones13”            and        who   stated       to    Hansel        that      she    was    a

thirteen-year-old           female.           Hansel,         524    F.3d      at    847.      While

Hansel argued there was no evidence before the district court

from which it could conclude that beccajones13 was actually a

minor, the Eighth Circuit found that the screen name and the

representation            provided         sufficient         evidence         to    support       the

district court’s finding to that effect.                            Id.

              We    have        reviewed     the       record       and    conclude     that       the

district court’s finding that AmyP12 was a minor was similarly

supported by a preponderance of the evidence and is not clearly

erroneous.         AmyP12 informed Scher that she was a twelve-year-old

female and sent him two pictures of herself.                                The pictures were

consistent         with     the        physical        appearance         of     a   prepubescent

female.         Scher       continued         to       send    AmyP12          images   of     child

pornography after she informed him that she was twelve years old

and     after      he      received         two        pictures       of        a    young     girl.

Accordingly, the district court did not clearly err, and this

claim of procedural sentencing error fails.

              Scher also argues that his sentence is substantively

unreasonable, in that it was longer than necessary to achieve

the sentencing goals of 18 U.S.C. § 3553(a) (2006), particularly

in view of the harsh sentencing guideline ranges generated by

                                                   4
the guidelines     applicable to child pornography                crimes. 2    See

generally United States v. Morace, 594 F.3d 340, 345-48 (4th

Cir. 2010) (discussing nationwide trend of downward departures

and variances in child pornography cases).

          “Substantive reasonableness examines the totality of the

circumstances to see whether the sentencing court abused its

discretion in concluding that the sentence it chose satisfies

the   standards    set   forth     in   § 3553(a).”     United        States   v.

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010); see Gall v.

United States, 552 U.S. 38, 51 (2007).              In imposing a variant

sentence, the sentencing court “must consider the extent of the

deviation    and   ensure   that    the     justification    is     sufficiently

compelling to support the degree of the variance.”                     Gall, 552

U.S. at 50.     “[A] major departure should be supported by a more

significant justification than a minor one.”                Id.       Given that

the district court is in a “superior position to find facts and

judge their import under § 3553(a) in the individual case,” we

must give “due deference to the district court’s decision that

the § 3553(a) factors, on the whole, justify the extent of the


      2
       In his reply brief, Scher seeks to recharacterize   his
claim as one of procedural sentencing error,   and claims that
the district court did not address all of his arguments for a
downward variance.   We find no merit to this claim, as the
record confirms the district court’s thorough consideration of
Scher’s arguments.



                                        5
variance.”       Id. at 51.      “The fact that the appellate court might

reasonably       have     concluded      that        a    different          sentence       was

appropriate is insufficient to justify reversal of the district

court.”    Id.

            We    conclude       that   Scher’s          sentence      is     substantively

reasonable.       While Scher argues that the district court did not

give sufficient weight to his history and characteristics or to

the sentencing disparities that would result from the imposition

of a within-guideline sentence, it is clear from the record that

the   district     court      meticulously         considered         those       factors    and

properly weighed them against the seriousness of the offense,

including victim impact and the need to protect the public and

deter    criminal    activity.          The       court   decided          that    a    sentence

thirty    months    below       the   bottom        of    the   guideline          range    was

sufficient    but       not   greater    than       necessary         to    accomplish      the

purposes of 18 U.S.C. § 3553(a).                     And while this sentence is

below the applicable guideline range, we find that the extent of

the    deviation    was       adequately      explained         and    well       within    the

district court’s discretion.

             Accordingly,        we   affirm       the    district         court       judgment.

We    dispense    with    oral    argument         because      the    facts       and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                                                        AFFIRMED

                                              6
