United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 21, 2016 Decided March 31, 2017

No. 15-3062

UNITED STATES OF AMERICA,

APPELLEE

v.

DANIEL FRY,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:15-cr-00016-1)

Michael Alan Olshonsky, appointed by the court, argued 

the cause and filed the briefs for appellant. 

David P. Saybolt, Assistant U.S. Attorney, argued the 

cause for appellee. With him on the brief were Elizabeth 

Trosman and John P. Mannarino, Assistant U.S. Attorneys.

Before: GRIFFITH, SRINIVASAN, and MILLETT, Circuit 

Judges.

Opinion for the Court filed by Circuit Judge SRINIVASAN.
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SRINIVASAN, Circuit Judge: Daniel Fry pleaded guilty to 

one count of possession of child pornography, in violation of

18 U.S.C. § 2252A(a)(5)(B). On appeal, Fry raises procedural 

and substantive challenges to the sentence imposed against him 

by the district court. His arguments principally revolve around 

the proposition that the district court, for policy-based reasons, 

should have varied from the Sentencing Guidelines provisions 

addressing child-pornography offenses. We reject Fry’s

arguments and affirm the sentence imposed by the district 

court.

I.

On June 11, 2014, Fry met an undercover agent on a 

social-networking site after Fry had posted several links to 

child pornography on the site’s public chat room. On June 24, 

2014, Fry contacted the undercover agent, who was posing as 

the father of an eight-year-old girl. During their conversation, 

Fry offered to send the agent forty videos of child pornography 

in exchange for watching (via webcam) the agent sexually 

abuse the purported eight-year-old child. Fry then sent the 

agent several images and videos containing child pornography. 

Many of the images and videos depicted prepubescent females

engaging in sex acts with adults and other prepubescent 

children. 

Officers arrested Fry and executed a search warrant at his 

home. During the search, the officers recovered over 600 

images of child pornography. The images included depictions 

of prepubescent children engaged in sadomasochistic sex acts. 

Fry pleaded guilty to one count of possession of child 

pornography. As part of his plea agreement, Fry agreed to the 

applicability of certain enhancements under the Sentencing 

Guidelines because his child-pornography offense involved: 
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material with a prepubescent minor or minor under twelve, 

U.S.S.G. § 2G2.2(b)(2), distribution of material, id. 

§ 2G2.2(b)(3)(F), portrayal of sadistic or masochistic conduct, 

id. § 2G2.2(b)(4), use of a computer, id. § 2G2.2(b)(6), and 600 

or more images, id. § 2G2.2(b)(7)(D). Fry also agreed that his 

estimated Sentencing Guidelines range was 97 to 121 months 

and that a sentence within that range would be reasonable. 

The district court sentenced Fry to 108 months of 

imprisonment, to be followed by 120 months of supervised 

release. Fry now appeals his sentence.

II.

Fry raises both procedural and substantive challenges to 

his sentence. The government contends as a threshold matter 

that we should decline to address Fry’s arguments because, as 

part of his plea agreement, he waived the right to appeal any 

sentence within the Guidelines range. Fry responds that his 

appeal waiver should not be enforced because the district court 

mischaracterized the waiver in a colloquy with Fry in his plea

hearing. See United States v. Godoy, 706 F.3d 493, 495-96

(D.C. Cir. 2013). We have no need to resolve whether Fry 

waived his right to appeal his sentence. Because the waiver 

question does not go to our court’s jurisdiction, we can forgo 

deciding it if we reject Fry’s sentencing challenges on the 

merits, which we do here for reasons we now explain. See 

United States v. Shemirani, 802 F.3d 1, 3 (D.C. Cir. 2015).

A.

We first address Fry’s claim that the district court 

procedurally erred in imposing his sentence. Because Fry 

failed to raise his procedural objections in the district court, we 

review the claims for plain error. See United States v. Melgar-
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Hernandez, 832 F.3d 261, 266 (D.C. Cir. 2016). To prevail 

under the plain-error standard, Fry must show that the district 

court made a “(1) legal error that (2) was plain, (3) affected the 

defendant’s ‘substantial rights,’ and (4) seriously affected the 

‘fairness, integrity or public reputation of the judicial 

proceedings.’” United States v. Head, 817 F.3d 354, 359 (D.C. 

Cir. 2016) (quoting United States v. Olano, 507 U.S. 725, 732 

(1993)). Fry fails to satisfy that standard.

Fry initially contends that the district court failed to give 

adequate consideration to the sentencing factors set out in 18 

U.S.C. § 3553(a). That provision calls for a sentencing court 

to consider certain factors, including the nature and 

circumstances of the offense, the defendant’s history, the 

seriousness of the offense, the need to deter criminal conduct

and protect the public from further crimes, the sentencing 

range, and the interest in avoiding unwarranted sentence 

disparities among similarly situated defendants. A district 

court, however, “need not consider every § 3553(a) factor in 

every case.” In re Sealed Case, 527 F.3d 188, 191 (D.C. Cir. 

2008). 

The district court gave adequate consideration to those 

factors here. The court explained that it viewed the offense 

conduct to be particularly serious because Fry offered to give 

the undercover agent pornographic materials if the agent would 

allow Fry to watch the agent sexually abuse a child victim. The 

case therefore involved “more than possession. We have 

bartering.” Sentencing Hr’g Tr. at 5. The bartering, the district 

court emphasized, was especially troubling because it would 

have created “a new victim.” Id. at 23. The court repeatedly 

highlighted the serious nature of Fry’s conduct and explained 

that the sentence would deter Fry and “others who may be 

inclined in doing similar kinds of things.” Id. at 25. The court 

thus determined that the sentence was “fair and just” and 
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“reflects the seriousness of the offense.” Id. Those statements 

demonstrate the court’s consideration of the pertinent

sentencing factors.

Fry’s next procedural challenge contends that the district 

court gave inadequate consideration to his policy-based 

argument for a sentence below the Guidelines range. His 

argument was that the Guidelines for child-pornography 

offenses should be disregarded because they give rise to

sentencing enhancements in too great a share of childpornography cases. We address the substance of that argument 

below, but with regard to Fry’s contention that the district court 

gave it insufficient consideration, a district court, we have 

explained, must “provide a ‘reasoned basis’ for its decision and 

consider all ‘nonfrivolous reasons’ asserted for an alternative 

sentence” at the time of sentencing. United States v. Locke, 

664 F.3d 353, 357 (D.C. Cir. 2011) (quoting Rita v. United 

States, 551 U.S. 338, 356-57 (2007)); see 18 U.S.C. § 3553(c). 

As long as the district court provides a reasoned basis, “we 

generally presume that [the court] adequately considered the 

arguments and will uphold the sentence if it is otherwise 

reasonable.” Locke, 664 F.3d at 358. 

Those standards are satisfied here. The district court stated

that it had “taken into consideration” the arguments made by 

Fry’s counsel in deciding against giving Fry a sentence at the 

upper end of the Guidelines range. Sentencing Hr’g Tr. at 25. 

When Fry’s counsel raised concerns about certain of the 

Guidelines enhancements for child-pornography offenses, the 

district court explained that, even absent those enhancements, 

the serious nature of Fry’s conduct remained. The court later 

affirmatively acknowledged that it had heard Fry’s argument 

and had also read Fry’s pleadings on the point. The record thus 

confirms that the district court considered Fry’s arguments for 

a sentence below the Guidelines range. 
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In short, Fry fails to identify any procedural error, let alone 

plain error, committed by the district court in imposing his 

sentence.

B.

We turn next to Fry’s argument that the sentence imposed 

by the district court was substantively unreasonable. “[W]e 

review claims of substantive unreasonableness for abuse of 

discretion, regardless of whether an objection on those terms 

was made” at sentencing. United States v. Russell, 600 F.3d 

631, 633 (D.C. Cir. 2010). The 108-month sentence imposed 

by the district court was within the Guidelines range and is thus 

presumptively reasonable. See id. at 634. In fact, Fry expressly 

conceded in his plea agreement that a sentence within that 

range would be reasonable.

Fry claims that the sentence nevertheless was 

unreasonable and the district court should have varied 

downward because the child-pornography Guidelines, 

U.S.S.G. § 2G2.2, are based on congressional mandates rather 

than empirical studies. Fry notes that district courts have 

discretion to vary from the Guidelines for crack-cocaine 

offenses “based on a policy disagreement with those 

Guidelines.” Fry Br. 12 (quoting Spears v. United States, 555 

U.S. 261, 266 (2009)). He claims the child-pornography 

Guidelines contain largely the same flaws as the crack-cocaine 

Guidelines and thus require the same treatment. Specifically, 

Fry highlights that many of the enhancements listed in section 

2G2.2 apply to ordinary offenders, giving rise to 

disproportionately severe sentences even for “run-of-the-mill” 

cases. Id. at 11-12 (quoting United States v. Dorvee, 616 F.3d 

174, 186 (2d Cir. 2010)). In support of his argument, Fry 

presented evidence through which he sought to show that his 

enhancements for images involving prepubescent minors, for 
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the number of images, for use of a computer, and for 

sadomasochistic images applied in the vast majority of cases. 

As a result, Fry contends, the district court should have varied 

downward from the child-pornography Guidelines.

None of Fry’s arguments, however, supports the 

conclusion that a district court’s decision to agree with the 

Guidelines constitutes an abuse of discretion. It is true that 

several courts of appeals have allowed district courts to vary

downward from the child-pornography Guidelines based on 

policy disagreements with those Guidelines. See United States 

v. Henderson, 649 F.3d 955, 960, 963 (9th Cir. 2011); Dorvee, 

616 F.3d at 188; United States v. Grober, 624 F.3d 592, 609, 

611 (3d Cir. 2010); United States v. Stone, 575 F.3d 83, 89 (1st 

Cir. 2009). None of those courts, however, require a district 

court to disagree with the Guidelines. In fact, several of our 

sister circuits have emphasized that district courts may choose 

to agree with the Guidelines on policy grounds. See

Henderson, 649 F.3d at 964; Grober, 624 F.3d at 609; Stone, 

575 F.3d at 90, 93. We similarly conclude that, even if a district 

court retains discretion to vary from the child-pornography 

Guidelines based on a policy disagreement with them, a district 

court does not necessarily abuse its discretion by agreeing with 

(and applying) those Guidelines. 

Here, the district court’s statements at sentencing evidence 

the judge’s agreement with the policy behind the Guidelines. 

The court recognized that it could vary outside the Guidelines

range. The court emphasized, however, that the children in 

child-pornography videos are “true victims” whose 

“victimization follows them the rest of their lives,” which, to 

the court, was “the reason why, in a nutshell, Congress has set 

these very serious, and sometimes, you could even argue, 

severe sentences for these types of actions here.” Sentencing 

Hr’g Tr. at 24. The court thus excercised its discretion to agree 
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with the policy behind the Guidelines, stating, “I must give a 

sentence that reflects the seriousness of the conduct; a

Guideline Range sentence does that.” Id. The court also

explained that, even absent the Guidelines enhancements, the 

“very serious” nature of Fry’s conduct remained a central

consideration in its analysis. See id. at 12-13. In particular, as 

noted above, Fry was “bartering . . . for a new victim to be 

created.” See id. at 23.

The district court could reasonably conclude that the

sentence reflected “the seriousness of the conduct” and would 

protect the public by deterring Fry and “others who may be 

inclined in doing similar kinds of things.” See id. at 24-25. Fry 

has thus failed to show that the district court abused its 

discretion in imposing a sentence in the middle of the 

Guidelines range.

* * * * *

For the foregoing reasons, we affirm the district court’s 

judgment. 

So ordered.