2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-11-2013

USA v. Pilch

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-2317

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Recommended Citation

"USA v. Pilch" (2013). 2013 Decisions. Paper 248.

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NOT PRECEDENTIAL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
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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).
3

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.