United States v. Crisman (39 F. Supp. 3d 1189, 2014)

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on: (i) the United States’ Sentencing Memorandum and Recommendation, filed October 10, 2012 (Doc. 58)(“United States’ Memo.”); and (ii) the Defendant’s Sentencing Memorandum and Motion for Sentence Varying from the Guideline Range, filed. May 9, 2013 (Doc. 72)(“Crisman Memo.”). The Court held a sentencing hearing on May 14, 2013. The primary issue is whether, and how, the Court should consider the findings in Michael L. Bourke & Andres E. Hernandez, The ‘Butner Study’ Redux: A Report of the Incidence of Hands-on Child Victimization by Child Pornography Offenders, 24 J. Fam. Violence 183 (2009)(“Butner Study Redux ”), in determining an appropriate sentence for Defendant Richard D. Crisman. Although the Butner Study Redux indicates that many child pornography “lookers” are also “touchers,” the Court does not think it is. appropriate to enhance Crisman’s sentence when there is no evidence that Crisman has molested children. The Court also will not use the Butner Study Redux’s findings to conclude that Crisman poses a risk to the community, because the Court thinks it should base its finding of Crisman’s future risk of harm on evidence in his case and not on a study in which'he was not involved. The Court finds that the Butner Study Redux’s findings are, however, persuasive for the following purpose: the Court will not vary from the sentencing guidelines calculation based on a Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), disagreement with the guidelines, because, although the guidelines may punish child pornographers harshly, the Butner Study Redux’s findings that many “lookers” are also “touchers” are disturbing and, in part, justify the United States Sentencing Commission’s, and ultimately Congress’, decision to set harsh punishments for child pornographers. The Butner Study Redux may support what most parents, and the public at large, intuitively think: men who frequently view child pornography might touch children inappropriately, and such men should not be around their children. Congress and the Commission’s sentences reflect these fears, and the Court should be reluctant to set aside these harsh sentences on Kimbrough v. United States grounds. The Court will not do so here. The Court will sentence Crisman to ninety-seven months of imprisonment and twenty-five years of supervised release.

FACTUAL BACKGROUND

In 2010, the New Mexico State Police (“NMSP”) began an undercover, online investigation of computers- involved in distribution, receipt, and possession of visual depictions of minors engaged in sexually explicit conduct, also known as child pornography, using peer-to-peer (“P2P”) file-sharing programs. Presentence Investigation Report ¶¶ 7-9, at 5-6, disclosed April 26, 2012 (“PSR”). On September 21, 2010, agents with the New Mexico Internet Crimes Against Children (“ICAC”) Task Force executed a search warrant on Cris-man’s residence and seized multiple computers and computer-related media. See PSR ¶ 18, at 7; id. ¶ 30, at 10. During the execution of the search warrant, Crisman participated in an interview with ICAC Task Force investigators. See PSR ¶ 19, at 7-8. Crisman informed investigators that he was a “computer geek” and worked for Best Buy’s computer and technology customer support service—the Geek Squad. PSR ¶ 20, at 8. Crisman admitted to using P2P file-sharing programs, like Limewire, to receive child pornography images and videos on his computer. See PSR ¶ 21, at 8. Crisman admitted that the images he downloaded were of children who “were very young, probably pre-teens, in sexual positions.” PSR ¶ 21, at 8. Cris-man saved the images and videos that he downloaded in a file named “A Plus” to conceal, them from family and friends. PSR ¶ 21, at 8. He “admitted to masturbating while viewing the images,” and indicated that he “has thousands of photos of 'child pornography on an external hard drive and on a flash drive,” but that he “has never shared the images with anyone with the exception of peer to peer.” PSR ¶ 21, at 8. He “indicated he is sexually attracted to children, but he stated he would never hurt a child.” PSR ¶ 22, at 8. Investigators asked Crisman about a number of pairs of underwear they found in his bedroom; Crisman admitted that, when he was at a co-worker’s house, he took a pair of her underwear without her permission, and, regarding the children’s underwear, admitted that, when he was at a Mend’s house who has five daughters, he took a pair of underwear without permission. See PSR ¶ 28, at 9. “He denied having ever touched any of the five children, but he admitted to fantasizing about having sex with a child while he masturbates.” PSR ¶ 23, at 9.

Investigators stopped the search after finding a number of items in Crisman’s bedroom that did not belong to him, including computers, iPods, and credit cards; they subsequently obtained another search warrant and completed the search later that day. See PSR ¶¶ 24-25, at 9. Crisman initially said he purchased the computers and iPods using his Best Buy employee discount to then sell for a profit, but later admitted to stealing the Apple products from Best Buy and selling them on eBay. See PSR ¶ 24, at 9. He said he used the credit cards and checks to purchase online pornographic materials. See PSR ¶ 24, at 9. After completing the search, they placed Crisman under arrest and took him to the Rio Rancho Police Department for further questioning. See PSR ¶ 25, at 9. Crisman admitted to searching for child pornography, specifically searching for images of children between five and ten years old. See PSR ¶ 26, at 9. To find child pornography images or videos, Crisman searched using terms like “five yo,” “boys in action,” “LS Magazine,” “young boy,” “young girl,” “girl sex,” “boy sex,” and “pedo.” PSR ¶ 26, at 9. “He indicated he would masturbate two to three times a day while viewing the pictures and at times would mas-túrbate five to six times daily.” PSR ¶ 26, at 9. Crisman also told officers about a specific fantasy that he had about a five-year-old boy who lived next door to him: he wanted to “ ‘kiss[ ] and lick[ ] everything, including the penis.’ ” PSR ¶ 27, at 10 (quotation unattributed). Further, Crisman admitted to stealing “approximately 50 pairs of soiled underwear from various children in his neighborhood and from the children of his Mends,” which he would place on his face while masturbating. PSR ¶ 32, at 14.

The Federal Bureau of Investigation’s Computer Analysis Response Team (“CART”) provided the Rio Rancho Police investigator with a report of the forensic examination of the computers and computer-related media. See PSR ¶33, at 15. On the Hewlett Packard computer, the CART examiner found over 200 images and ten videos consistent with child pornography. See PSR ¶ 33, at 15. On a Western Digital external hard drive, the CART examiner found 13,532 images and nine video files consistent with child pornography. See PSR ¶ 33, at 15. On the Iomega zip disk, the CART examiner found 1,301 images consistent with child pornography. See PSR ¶ 33, at 15. “Some of the material Crisman possessed was of masochistic conduct. Specifically, one image was of a female child tied in ropes, as well as a video where a female child is penetrated by an adult male’s penis.” PSR ¶ 35, at 15. The child pornography images and videos were sent to the National Center for Missing and Exploited Children (“NCMEC”) in an effort to identify real, known children depicted in the images and videos. PSR ¶ 34, at 15. According to the NCMEC, Crisman had 1,884 known child pornography images from approximately 100 different series and nine known child pornography videos from five different series. See PSR ¶ 34, at 15.

As part of a Plea Agreement, filed February 24, 2012 (Doc. 45), Crisman admitted the following facts:

a. On September 21, 2010, investigators with the New Mexico Internet Crimes Against Children (NM ICAC) Task Force served a search warrant at my residence of 3748 NE Rancher Loop, Rio Rancho, Bernalillo County, New Mexico, to seize computers and computer-related media which contained evidence of visual depictions of minors engaged in sexually explicit conduct (hereafter “child pornography[”]). Investigators seized my Hewlett Packard Pavillion Computer, Serial Number CND911273G, with an internal Toshiba 400 GB Hard Drive, Serial Number 2977P3CXT; my Western Digital 500 GB external hard drive, Serial Number WMASY0312503; and my Iomega PC 100 MB zip disk.

b. I now know that this search warrant was based on an undercover operation which began in August 2010 by the New Mexico State Police (NMSP) aimed at those who possessed, received, and distributed child pornography. NMSP Sergeant Pilón located a computer with an Internet Protocol Address (hereafter “IP Address!”]) of 67.16.60.212 which was participating in the distribution of child pornography images and videos on November 3, 2009, February 21, 2010, April 1, 2010, June 22, 2010 and July 30, 2010. By examination of the SHA1 values associated with images and videos available for distribution on these dates, Sgt. Pilón was able to conclude the videos were in fact child pornography.

c. I know now that Sgt. Pilón determined the IP Address of 67.16.60.212 was issued to Cable One. In response to an administrative subpoena, Cable One confirmed that this IP Address[] used on the above dates was registered to my address of 3748 NE Rancher Loop, Rio Rancho, Bernalillo County, New Mexico. Cable One indicated I had leased Internet Access at my residence from October 30, 2009 to August 10, 2010.

d. I now know that any receipt of child pornography images and/videos [sic] using the Internet P2P file-sharing program would satisfy the requirement of in or affecting interstate nexus requirement. I further now know that Cable One’s servers are located outside the state of New Mexico so as to satisfy the interstate nexus requirement for receipt of child pornography.

e. On September 21, 2010,1 voluntarily participated in a recorded interview with NM ICAC investigators during execution of the search warrant. During this interview, I admitted I utilized Cable One as my Internet Service Provider and used P2P file-sharing programs such as Kazaa, Limewire, Bearshare and Torrents. I further admitted I had seen child pornography images and videos when searching P2P file-sharing programs like those previously identified. I admitted to the investigators they would in fact find child pornography images and videos on my computer and that I had received these images and videos using Limewire and search terms such as “child sex.” I further voluntarily participated in additional recorded interviews with law enforcement investigators in which I admitted the children depicted in the child pornography images and videos which I received using P2P file-sharing programs of Limewire and Kazaa were between the ages of two (2) to twelve (12) years. Finally, I admitted I knew my actions of receiving child pornography was against the law. f. I now know an extensive computer forensic examination was later conducted on my seized computers and computer-related media as identified above in paragraph 8a. Forensic Examiner Guil-mette, with the Federal Bureau of Investigation (FBI) Regional Computer Forensic Lab (RCFL) found over 14,000 images and 40 videos consistent with child pornography. Examiner Guil-mette also found the P2P file-sharing program of Limewire that was installed on my computer in July 2010. The computer was registered to “Rick.” One image in particular, as related to Count 2, which was found on my computer was titled “Private Daughter Mellony stolen pedo lolita pthe hussyfan preteen nude (lOyo) 02.jpg.” The full file path of this image was “Users Documents Limewire Saved Private Daughter Mellony stolen pedo lolita pthc hussyfan ‘preteen nude (lOyo) 02.jpg.” This image was created on November 2, 2009 and was later identified to be from the “Menz” series. This image depicted a prepubescent girl, whose arm is bound to her leg. The focal point of the picture is her exposed vagina.

g. I now know the found child pornography images and videos on my computers were sent to the National Center for Missing and Exploited Children (NCMEC) in an attempt to identify real, known children depicted in such images. I now know that according to NCMEC, I had 1884 known child pornography images from approximately 100 different series and 9 known child pornography videos from 5 different series,

h.In sum, on November 2, 2009, while in Rio Rancho, New Mexico, I knowingly received a visual depiction that had been mailed, shipped, or transported in interstate or foreign commerce by means of computer, the production of which involved the use of minors engaged in sexually explicit conduct and is of such conduct. I received this image via the Internet P2P filesharing program of Li-mewire and stored the video of a minor child engaged in sexually explicit conduct on my computer. I knew it was illegal for me to receive and possess these images.

Plea Agreement ¶¶ 8(a)-(h), at 3-6.

PROCEDURAL BACKGROUND

Crisman was “initially arrested on state charges, however after completion of the forensics examination and receipt of the NCMEC Report, the Defendant was arrested on federal charges in September 2011.” United States’ Memo, at 3. Cris-man pled guilty to “Count 2 of an Indictment charging a violation of 18 U.S.C. § 2252(a)(2), 2252(b)(1), and 2256, that being receipt of a visual depiction of minors engaged in sexually explicit conduct.” Plea Agreement ¶ 3, at 2. The mandatory minimum sentence under § 2252(b)(1) is five years imprisonment with a five-year term of supervised release. See PSR at 1; 18 U.S.C. § 2252(b)(1). Regarding the applicable sentencing guidelines, the parties stipulated as follows: (i) U.S.S.G. § 2G2.2 is the applicable guideline, setting the base offense level at 22, see Plea Agreement ¶ 11(a) at 7; PSR ¶ 44, at 52; (ii) the cross reference located in § 2G2.2(c) is not applicable, see Plea Agreement ¶ 11(a) at 7; (iii) decrease by 2 levels pursuant to § 2G2.2(b)(l), because Crisman’s “conduct was limited to receipt,” Plea Agreement ¶ 11(b) at 7; (iv) increase by 2 levels pursuant to § 2G2.2(b)(2), because “the material involved a prepubescent minor or a minor who had not attained the age of twelve,” Plea Agreement ¶ 11(c) at 7; (v) increase by 4 levels pursuant to § 2G2.2(b)(4), because the material portrayed “sadistic or masochistic conduct or other depictions of violence,” Plea Agreement ¶ 11(d) at 7; (vi) increase by 2 levels pursuant to § 2G2.2(b)(6), because the “offense involved the use of computer or interactive computer services for the possession, transmission, receipt of distribution of the material,” Plea Agreement ¶ 11(e) at 7; (vii) increase by 5 levels pursuant to § 2G2.2(b)(7), because the offense involved over 600 images, see Plea Agreement ¶ 11(f) at 7; and (viii) decrease 3 levels pursuant to U.S.S.G. § 3E1.1, so long as Crisman “continues to accept responsibility” for his conduct, Plea Agreement ¶ 11(g) at 7-8. The PSR agreed with and reflected all of these stipulations, resulting in a total offense level of 30. See PSR ¶¶ 44-55, at 52-53. Further, because Cris-man does not have any criminal history points, his criminal history category is I, resulting in a sentencing guideline range of 97 to 121 months incarceration. See PSR ¶ 58, at 54; id. ¶ 86, at 61.

The United States contends that all of the enhancements that the USPO applied in the PSR are appropriate. See United States’ Memo, at 3-6. Regarding the 2-level enhancement for the material involving a prepubescent minor, the United States argues that

[t]he demand by consumers in the child pornography industry has caused an increase in the creation of child pornography which depict younger sexually abused child victims (ie: the supply). Thus, there is an out-cry [sic] to punish consumers of child pornography who have an interest in collecting images which depict the sexual abuse of young prepubescent children, thereby increasing the demands of such images and the sexual abuse of such children.

United States’ Memo, at 4. The United States asserts that the 4-level increase for the material portraying sadistic or masochistic abuse is appropriate, because the images to which Crisman pled guilty portray such abuse, and his “collection of these types of images fueled the demand for production of more child pornography images and videos that depict sadistic and masochistic abuse of children.” United States’ Memo, at 4. For the 2-level increase for using a computer, the United States asserts that, “[historically, child pornography images and videos were acquired via United States Mail,” and that the “enhancement became necessary as computers became more prevalent in the distribution and receipt of child pornography.” United States’ Memo, at 4-5. It explains that computers make it easier for offenders to receive images and avoid police detection, and that distributing child pornography through computers is especially harmful, because “it can reach an almost limitless audience.” United States’ Memo, at 5. The United States contends that, because “computers make the dissemination and receipt of child pornography easier and fuels the child pornography market,” the 2-level enhancement is appropriate “to deter the relatively easy commission of the crime by offenders in the future.” United States’ Memo, at 5. Finally, the United States contends that the 4-level increase for the number of images Crisman possessed is appropriate, because, “[m]uch like other crimes, sentencing penalties are enhanced and have long been recognized as appropriate based upon the quantity of contraband a defendant possessed.” United States’ Memo, at 6.

The United States recommends a sentence of 97 months imprisonment—the low end of the guideline range—and a life term of supervised release. See United States’ Memo, at 6. As support for its argument that a guidelines sentence is “necessary, appropriate, and reasonable,” the United States asserts: (i) “Congress, the Supreme Court, and the Sentencing Commission have rationally recognized that the sentences and sentencing ranges for offenses involving the exploitation of children should be severe,” United States’ Memo, at 7; (ii) “child pornography is a form of child abuse which presents a clear and present danger to the psychological and social welfare of children,” United States’ Memo, at 10; (iii) “child pornography offenders, like the Defendant, present an unknown degree of danger,” United States’ Memo, at 12; and (iv) “receipt of child pornography has a significant impact on the child victims depicted in the images,” United States’ Memo, at 7-16 (capitalization and bolding altered for readability).

First, the United States asserts that “Congress, the Supreme Court, and the Sentencing Commission have rationally recognized that the sentences and sentencing ranges for offenses involving the exploitation of children should be severe.” United States’ Memo, at 7 (capitalization and bolding altered for readability). It argues that “the prevention of the sexual exploitation and abuse of children constitutes a governmental objective of surpassing importance because of the psychological and physical effects such abuse has on children and families, especially when the abuse is permanently memorialized through pictures and videos.” United States’ Memo, at 7. In its view, child pornography sentences need to be “severe enough to sufficiently deter pornographers from ever beginning the practice of exploiting children for sexual purposes,” and that the “federal child pornography statutes and penalty provisions are designed to do precisely that.” United States’ Memo, at 7-8. The United States acknowledges “the current debates surrounding U.S.S.G. § 2G2.2,” but notes that “the most recent changes to the United States Sentencing Guidelines did not alter the child pornography guidelines in any way.” United States’ Memo, at 8. In a page-and-a-half footnote, it points to courts that have upheld child pornography related sentences within offenders’ applicable sentencing guidelines, arguing that “the trend has been to do everything possible to increase penalties and consistently punish those involved in the criminal activity of sexual exploitation of minors because of its consequential effects on children.” United States’ Memo, at 8-9 & n. 3.

Second, the United States argues that “child pornography is a form of child abuse which presents a clear and present danger to the psychological and social welfare of children.” United States’ Memo, at 10 (capitalization and bolding altered for readability). It contends that “Congress understood that children used in the production of child pornography were the ‘primary victims’ when it passed legislation prohibiting the sexual abuse and exploitation of children through pornographic means.” United States’ Memo, at 10 (quoting United States v. Boos, 127 F.3d 1207, 1210 (9th Cir.1997)). It asserts that a child pornography consumer causes children to suffer “in various ways: (1) the abuse is perpetuated through dissemination, (2) the existence of the image invades the child’s privacy, and (3) the demand for the creation of more images is created by the consumer.” United States’ Memo, at 11 (citing United States v. Norris, 159 F.3d 926, 929-30 (5th Cir.1998)).

Third, the United States asserts that child pornography offenders present an “unknown degree of danger.” United States’ Memo, at 12 (capitalization and bolding altered for readability). The United States argues that “[sjignificant empirical data provides support for concluding that those who distribute, receive, and posses[s] child pornography pose a significant danger to our community,” pointing specifically to the Butner Study Redux as demonstrating that “offenders involved in child pornography-related conduct are often unknown hands-on offenders.” United States’ Memo, at 12. While the United States recognizes the Butner Study Re-dux’s potentially limited import—it “presents only a single study”—the United States argues that it “confirms the correlation between child pornography and offenses involving sexual contact,” although “formal conclusions could not be drawn.” United States’ Memo, at 12. The United States points to other studies that “support a similar nexus between child pornography and hands-on offenders.” United States’ Memo, at 12 (citing Janis Wolak, David Finkelhor, & Kimberly J. Mitchell, Child-Pornography Possessors Arrested in Internet-Related Crimes: Findings from the National Juvenile Online Victimization Study (2005), available at http://missingkids.com/en_US/publications/ NC144.pdf). According to the United States, the Wolak study “found the conservative number that ‘one out of six cases originating with an allegation or investigation of child pornography discovered a dual offender who sexually victimized children or attempted to do so.’ ” United States’ Memo, at 12-13 (footnotes omit-tedXquoting Wolak et ah, supra, at 17). The United States asserts that, “[a]lthough unknown if the Defendant is a hands-on offender or not, these studies reinforce the belief that child pornography offenders often present an unknown danger to our communities and especially children.” United States’ Memo, at 13 (footnote omitted).

The United States notes that the sentence it is recommending—97 months—is less time than the ten years that Crisman has admitted to viewing child pornography images. See United States’ Memo, at 13 & n. 6 (second). It emphasizes that Cris-man’s conduct—collecting child pornography images, sexual fantasies related to two neighborhood children, masturbating while viewing his child pornography images, stealing approximately fifty pairs of children’s underwear to use for self-sexual pleasure, stealing credit cards and checks to purchase online pornographic materials—“indicated] he is a person with a long-standing, undetected sexual interest in children.” United States’ Memo, at 13-14. Further, the United States points out that Crisman’s conduct “promoted the production” of child pornography “under the basic principles of demand and supply.” United States’ Memo, at 14.

Fourth, the United States asserts that the “receipt of child pornography has a significant impact on the child victims depicted in the images.” United States’ Memo, at 14 (capitalization and bolding altered for readability). The United States emphasizes again that the primary victims in child pornography cases are the children, and it points to several victim impact statements from children depicted in child pornography images and videos. See United States’ Memo, at 14-16.

The United States urges the Court not to vary from the guideline range. See United States’ Memo, at 16-18. It asserts that, under 18 U.S.C. § 3553(b)(2), the Court may not vary from the guideline range unless the Court finds one of three listed circumstances, and that none of the circumstances are present in this case. United States’ Memo, at 17-18. The United States argues that 97 months is an appropriate sentence, because it reflects the “seriousness of the offense, respect for the law, and just punishment,” adequately deters Crisman and future defendants, holds Crisman accountable for his actions, protects the “the public, especially children,” from future crimes that Crisman may otherwise commit, provides treatment to Crisman, and avoids unwarranted sentencing disparities among similar defendants. United States’ Memo, at 18-22.

Crisman requests the Court to vary from the guideline range and sentence him to 60 months imprisonment. See Crisman Memo, at 1. He argues that “the applicable guideline, U.S.S.G. § 2G2.2 does not differ-enflate between producers of child pornography images and those who, like Mr. Crisman, merely receive or possess it,” and that “in somé instances, it punishes offenders of receipt and possession of child pornography images equally as or more harshly than hands-on offenders.” Cris-man Memo, at 5. He points out that “a defendant being sentenced under U.S.S.G. § 2A3.4 (Abusive Sexual Contact or Attempt to Commit Abusive Sexual Contact), and who received all sentencing enhancements under that section would still be exposed to a lower guideline range than that recommended for Mr. Crisman,” and that “[sjuch a result reveals the substantively unreasonable nature of a guideline sentence as to Richard Crisman.” Cris-man Memo, at 5-6. Crisman urges the Court to “ ‘differentiate between those who create child pornography and those who consume it’ when sentencing a defendant under U.S.S.G. § 2G2.2.” Crisman Memo, at 6 (quoting United States v. Kelly, CR-No. 11-1866-BB, slip copy (D.N.M. 2012)(Black, J.)). He argues that several courts have criticized the enhancements under § 2G2.2, because they apply “ ‘in virtually all cases.’ ” Crisman Memo, at 7 (quoting United States v. Diaz, 720 F.Supp.2d 1039, 1048 (E.D.Wisc.2010)). For example, he points out that “the use-of-computer enhancement, under U.S.S.G. § 2G2.2(b)(6),” is applied in “96.2% of all cases sentenced under U.S.S.G. § 2G2.2 in 2010,” Crisman Memo, at 8 (citing U.S. Sentencing Comm’n, Use of Guidelines and Specific Offense Characteristics: Fiscal Year 2010, at 38), and further, that this enhancement does not “distinguish between ‘serious commercial distributors ... from more run-of-the-mill users,’ ” Crisman Memo, at 8 (quoting United States v. Dorvee, 604 F.3d 84, 95-96 (2d Cir.2010), amended and superseded by 616 F.3d 174 (2d Cir.2010)). Next, he takes issue with the “number-of-images enhancement” in § 2G2.2(b)(7)(D), asserting that it was applied in “96.5%[] of all cases under U.S.S.G. § 2G2.2 in 2010,” Crisman Memo, at 8 (citing U.S. Sentencing Comm’n, Use of Guidelines and Specific Offense Characteristics: Fiscal Year 2010, at 38), and that, because of the nature of internet and computer use, “offenders, often unwittingly, access large numbers of images en masse,” Crisman Memo, at 8 (citing United States v. Diaz, 720 F.Supp.2d 1039, 1042 (E.D.Wisc.2010)). He finally points to the “sadist-masochistic enhancement” under § 2G2.2(b)(4), which was applied in “73.6% of all cases sentenced under U.S. S.G. § 2G2.2 in 2010,” Crisman Memo, at 8-9 (citing U.S. Sentencing Comm’n, Use of Guidelines and Specific Offense Characteristics: Fiscal Year 2010, at 38), and argues that “[t]his enhancement has the additional problematic feature of punishing conduct without any finding of requisite intent on the part of the offender,” Cris-man Memo, at 9. Crisman contends that, while he stipulated to “the conceptual applicability” of the sentencing enhancements, his stipulation “does not preclude a sentencing argument that calls into question the sentencing efficacy or structural unreasonableness of those enhancements.” Crisman Memo, at 9. He asks the Court “not to impose any recommended enhancements as to do so would constitute a prqce-durally and substantively unreasonable sentence.” Crisman Memo, at 9-10. He contends that 60 months would adequately deter him and the public from future crimes and would avoid unwarranted sentencing disparities between his crime and more severe offenders. See Crisman Memo, at 16-18. He attached a Letter from Ralph G. Mendez, PhD, to the Honorable James O. Browning, dated May 28, 2012, filed May 9, 2013 (Doc. 72-l)(“Men-dez Letter”), in which Ralph G. Mendez, Crisman’s uncle, who also has a PhD in psychological counseling, urges the Court not to rely on the Butner Study Redux, because, in his view, it “has serious flaws and should not be used to assert that Richard will commit further sexual abuse crimes if not incarcerated.” Mendez Letter at 1. Crisman’s sister, Amanda R. Cris-man-Voss, also wrote the Court, urging it not to rely on the Butner Study Redux, because, in her view, the study is “not only flawed, but is also not credible evidence to assert that Richard D. Crisman will pursue further sexual crimes of this nature if he is not incarcerated.” Letter from Amanda R. Crisman-Voss to the Honorable James O. Browning, dated May 31, 2012, filed May 9, 2013 (Doc. 72-1 at 5). Crisman-Voss included her own critique scrutinizing the Butner Study Redux. See Amanda R. Crisman-Voss Critique of the Butner Study Redux, dated November 14, 2011, filed May 9, 2013 (Doc. 72-1 at 6).

The Court held a sentencing hearing on May 14, 2013. See Transcript of Hearing, taken May 14, 2013 (“Tr.”). Crisman agreed that the PSR correctly calculated the sentencing guidelines, based on the stipulations they made in the Plea Agreement. See Tr. at 2:21-24 (Nieto). He argued, however, that the enhancements are “increasingly coming under scrutiny by various sentencing courts,” and that, with the mandatory minimum five-year sentence, the enhancements “would be inappropriate and unreasonable.” Tr. at 4:11-5:6 (Nieto). Next, he points to his personal history and how his father sexually abused him when he was growing up; while not arguing that this history excuses his conduct, Crisman asserted that he still suffers the effects of that abuse and that 60 months imprisonment with the BOP’s sexual treatment program would be an appropriate sentence. See Tr. at 5:7-9:5 (Nieto).

The Court noted that, although Crisman took issue with the enhancements, the Sentencing Commission could have assumed that all of the offenders would use a computer, have over six hundred pictures, and possess sadistic and masochistic images, and so the Sentencing Commission could have made the base offense level 32 rather than 22 to incorporate the same enhancements. Tr. at 11:7-12 (Court). Crisman responded that, although the “enhancements are coming under increased scrutiny,” Congress has not changed the child pornography sentencing guidelines and explained that he brought up the criticisms “to get the Court to consider what I believe to be a good sentence.” Tr. at 11:20-12:5 (Nieto).

The Court asked Crisman to address the Butner Study Redux that the United States attached to the United States’ Memo. See Tr. at 13:5-6 (Court). Crisman noted that he was not very familiar with the First Butner Study and the Butner Study Redux, but asserted that, regarding the study’s apparent correlation between child pornography users and hands-on molesters, the focus should boil down to a case-by-case determination. See Tr. at 14:14-15:9 (Nieto). He asserted that, even taking his activity “in the worst possible light,” they do not “indicate or show any evidence of any hands on activity.” Tr. at 15:10-16 (Nieto).

Crisman then personally addressed the Court, explaining that he takes “full responsibility,” and is “deeply ashamed and remorseful” for his actions. Tr. at 16:18-20 (Crisman). To the “children depicted in the files that I received, I want to say that I am seriously remorseful and very sorry by receiving their images of the views I have added to their continued victimization.” Tr. at 16:14-17:2 (Crisman). He apologized to “the Court, also to my attorney, Mr. Nieto, to the prosecution, [Assistant United States Attorney] Ms. [Charlyn] Rees, and to all the police investigators and to anyone else that had to work on my case and view the vi[le] thin[g]s I possessed,” as well as to his family, for causing them “pain, embarrassment, and shame.” Tr. at 17:11-18 (Cris-man). Crisman said that he has had a wake-up call and that he wants to “stop going down this road that has led me before” the Court. Tr. at 17:19-25 (Cris-man). He explained that his father sexually abused him, that he had never told anyone about that experience before he told investigators in this case, and that he is determined to get the help and therapy he needs to “not let this dark time in my life define who I am and what kind of person I am, because I know in my heart that I am a good and decent person and I do have something good and positive to contribute to society.” Tr. at 18:1-19:21 (Crisman).

Crisman, through his attorney, then argued that a lifetime of supervised release “is kind of excessive” and asked the Court to impose a shorter sentence of supervised release after imprisonment. Tr. at 20:21-21:11 (Nieto).

The United States noted that “the guidelines are under attack and there’s a great deal of scrutiny surrounding the guidelines,” but that “the base offense level for this type of crime is substantially less than the mandatory minimum that applies.” Tr. at 22:5-10 (Rees). The United States asserted that, although the enhancements may apply in many cases, it is “misguided to suggest that these sentencing enhancements apply in every case.” Tr. at 22:11-15 (Rees). For example, regarding the number of images, the United States said that offenders have “varying amounts of child pornography,” but that Crisman “had an exceptionally large amount of child pornography,” with over 14,000 images and forty videos. Tr. at 22:16-20 (Rees). In the United States’ view, the Sentencing Commission recognizes the “prepubescent children enhancement” because “offenders are becoming more and more interested in younger and younger children.” Tr. at 23:1-9 (Rees). Regarding the sadistic or masochistic images, the United States asserted that the enhancement does not apply in every case, and that the Sentencing Commission recognizes that offenders who receive and possess sadistic or masochistic images are creating the demand for those images. See Tr. at 23:10-16 (Rees). The United States asserted that, although the use-of-a-computer enhancement is applied “more frequently in light of the technology today,” “when the commission of the crime is made easier through an instrumentality, like a firearm or like a computer, that is an appropriate enhancement, because you’re fueling the industry[ ] and allowing someone to ... more easily commit a crime.” Tr. at 23:17-24 (Rees). The United States argued that 97 months is an appropriate sentence, based on Crisman’s conduct in viewing child pornography for ten years, the large number of images he had on his computers, that he fantasized about having sexual relations with children multiple times throughout the day, that he masturbated anywhere from three to six times a day, and that he has “sexual fantasies involving two identified neighborhood children.” Tr. at 24:24-25:10 (Rees). The United States also recommended a lifetime of supervised release, because, in its view, “Crisman presents a unique danger,” and “the best assurance to curb this danger that he presents is a lifetime of monitoring.” Tr. at 26:6-12 (Rees). Although the United States said it is sensitive to the fact that Crisman’s father abused him, it argued “that doesn’t minimize his conduct in this case,” because “[t]here are many children who have sadly and unfortunately been abused and taken advantage of throughout[ ] their childhood but they have not resorted to the level of sexual deviancy, including child pornography and all the other activities that Mr. Crisman has been involved in.” Tr. at 28:20-29:3 (Rees). The United States argued that the Court should impose a within-guidelines sentence so that Crisman is sentenced as other similarly situated offenders. See Tr. at 29:8-11 (Rees).

The Court asked the United States to explain why Crisman should receive a 2-level decrease for receiving, and not distributing, child pornography, when he obtained the child pornography on a P2P network. See Tr. at 30:5-12 (Court). The United States answered that P2P programs allow the users to choose whether they want to share files, and so the use of a P2P program would not necessarily involve distribution. See Tr. at 30:12-19 (Rees). The United States acknowledged that there is Tenth Circuit case law that indicates, if an offender uses a file sharing program, the offender may receive an enhancement for distribution, but explained that, because Crisman pled guilty to receipt, and not to distribution, it seemed “unfair and unjust ... to have him plead guilty to the less[er] of the two and then be able to escalate him to the same standard he would have been if he had been charged with distribution.” Tr. at 30:19-31:8 (Rees). The United States said that there is some evidence that Crisman distributed child pornography through the P2P program, “because law enforcement was able to make connection with Mr. Crisman’s computer and download child pornography files from his computer,” but that, pursuant to the.Plea Agreement, it argued that he should receive the 2-level reduction for only receiving, and not distributing, child pornography. Tr. at 31:9-24 (CourWRees).

The Court then asked the United States to respond to Crisman’s arguments that many of the enhancements apply in nearly every case. See Tr. at 33:4-6 (Court). The United States explained that, although it appears that the enhancements apply in every case, the reality is that the child pornography offenders who appear in federal court are “the worst of the worst offenders” and that the low-level offenders who may not receive the enhancements are prosecuted in state courts. Tr. at 33:11-18 (Rees). Although the United States acknowledged that the computer enhancement applies in nearly every case, it contended that, because using a computer makes the crime easier to commit, the enhancement is appropriate. See Tr. at 24:18-24 (Rees).

The Court asked the United States to discuss the Butner Study Redux. See Tr. at 37:4-5 (Court). The United States explained that it is not suggesting that Cris-man is a hands-on offender, “because that would be an unfair suggestion in this case,” but that it directed the Court to the Butner Study Redux to emphasize that the Court should not minimize “image cases.” Tr. at 37: 7-20 (Rees). The United States acknowledged that “the community of psychologists and psychiatrists” often deem the Butner Study Redux as “the outlier of studies,” but it argued that Bourke and Hernandez had “a unique environment where they could conduct such a study that” other psychologists and psychiatrists are not able to do. Tr. at 38:13-15 (Rees). It argued that the use of polygraphs in the study demonstrated the truthfulness and veracity of the self-reported statements. See Tr. at 38:20-23 (Rees). The United States asserted that lifetime supervised release is necessary, because, in its view,

Crisman is absolutely a danger. We have seen an escalation ... in his sexual deviancy within the ten years prior to law enforcement detection as well as his own statements, and that increase and escalation in sexual deviancy causes the ... United States quite concern and alarm for the protection and safety of this community.

Tr. at 39:25-40:5 (Rees).

The Court accepted the Plea Agreement, including the stipulation to apply the 2-level reduction for receiving, and not distributing, child pornography, although it said it would likely scrutinize the reduction in other cases to determine if it is appropriate when using P2P software. See Tr. at 41:9^2:2 (Court). The Court explained eight factors that put downward pressure on the sentence: (i) the number of cases where the enhancements are applied, although it noted that it does not have a Kimbrough v. United States disagreement with the sentencing guidelines in general, See Tr. at 43:13-44:7 (Court); (ii) Cris-man’s childhood history of abuse, causing PTSD and other psychological problems, see Tr. at 44:8-22 (Court); (iii) Crisman’s receptiveness to treatment, including the fact that this offense has made him confront what he endured as a child, see Tr. at 44:23-34:5 (Court); (iv) Crisman’s young age and how, while “we are going to have to deal with him and his problems for quite some time,” he has accepted responsibility and recognized that viewing child pornography is not a victimless crime, Tr. at 45:6-16 (Court); (v) there will be a reduced chance of recidivism as Crisman gets older, see Tr. at 45:23-46:3 (Court); (vi) his mother’s health, because it would be helpful for him to return to her more quickly, see Tr. at 46:4-8 (Court); (vii) the fact that he did not distribute child pornography, see Tr. at 46:9-12 (Court); and (viii) the fact that Crisman has not, to the Court’s knowledge, engaged in any violence or hands-on offenses, see Tr. at 47:10-13 (Court). On the other hand, the Court acknowledge several factors that put upward pressure on the sentence: (i) the nature of the images, including the age of the children and the sadistic and masochistic nature of the images, see Tr. at 47:19-20 (Court); (ii) the “exceptionally large amount of materials,” Tr. at 46:20-21 (Court); (iii) that child pornography is not a victimless crime, see Tr. at 46:25 (Court); (iv) that the psychologist diagnosed Cris-man with pedophilia, see Tr. at 47:3-10 (Court); (v) that Crisman is addicted to child pornography, making recidivism more likely, see Tr.-at 47:11-17 (Court); (vi) the Butner Study Redux, although not counseling the Court to vary upward, makes the Court cautious about varying downward, see Tr: at 47:23-48:12 (Court); and (vii) Crisman’s other illegal conduct that went beyond viewing child pornography, including stealing children’s underwear and stealing credit cards to purchase online pornographic material, which indicate Crisman may be more willing to act on his deviant sexual thoughts and inclinations, see Tr. at 49:14r-50:6 (Court). The Court concluded that, although there are factors that counsel against a guidelines sentence, a within-guidelines sentence is appropriate, see Tr. at 52:3-8 (Court). •The Court sentenced Crisman to 97 months imprisonment and 25 years supervised release, see Tr. at 53:6-9 (Court).

HISTORY OF THE CHILD PORNOGRAPHY SENTENCING GUIDELINES

Since the inception of the Sentencing Commission, it has “reviewed and substantively revised the child pornography guidelines nine times.” U.S. Sentencing Comm’n, The History of the Child Pornography Guidelines 2 (2009), available at www.ussc.gov/general/20091030_History_ Child)_Pornography_Guidelines.pdf (“Guidelines’ History”). In setting the sentencing guidelines, the Sentencing Commission is to consider the “the same factors that a sentencing court is required to consider under 18 U.S.C. § 3553(a),” including

the nature and degree of the harm caused by the offense, the community view of the gravity of the offense, the public concern generated by the offense, the deterrent effect a particular sentence may have on the commission of the offense by others, and the current incidence of the offense in the community and in the Nation as a whole.

Guidelines’ History at 2-3 (internal quotation marks omitted)(citing 28 U.S.C. § 994(c)). Congress retains “ultimate authority over the federal sentencing guidelines,” as it may modify or reject amendments that the Sentencing Commission submits. Guidelines’ History at 5-6. Further, Congress may enact general or specific directives to the Commission, and the Commission must then “implement the directive in a manner consistent with the legislation.” Guidelines’ History at 6. “Congress has delegated to the Commission significant discretion in formulating guidelines.... Broad as that discretion may be, however, it must bow to the specific directives of Congress.” United States v. LaBonte, 520 U.S. 751, 757, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997) (internal quotation marks omitted).

For more than 30 years, and particularly in recent years, Congress has focused attention on the scope of child pornography offenses and the severity of penalties for child pornography offenders. Through creating new offenses, enacting new mandatory mínimums, increasing statutory máximums, and providing directives to the Commission, Congress has repeatedly expressed its will regarding appropriate penalties for child pornography offenders. Congress has specifically expressed an intent to raise penalties associated with certain child pornography offenses several times through directives to the Commission and statutory changes aimed at increasing the guideline penalties and reducing the incidence of downward departures for such offenses.

Guidelines’ History at 6.

Child pornography is defined as

any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where—

(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct;

(B) such visual depiction is a digital image, computer image, or computer generated image that is, or is indistinguishable from, that of a minor engaging in sexually explicit conduct; or

(C)such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

18 U.S.C. § 2256(8).

Congress first addressed the distribution and receipt of child pornography in 1977, when it established a ten-year statutory maximum sentence for first-time trafficking offenders, as well as a fifteen-year statutory maximum and two-year mandatory minimum sentence for subsequent offenders. See Guidelines’ History at 9. In 1984, Congress “extended penalties to producers and traffickers of child pornography who commit such offenses for non-pecuniary purposes.” Guidelines’ History at 9. Congress raised the mandatory minimum sentence for repeat child pornography offenders from two to five years of imprisonment and provided civil remedies for victims in 1986. See Guidelines’ History at 9.

The Sentencing Commission promulgated the first set of guidelines in 1987, which set sentencing ranges for 18 U.S.C. § 2251—production of child pornography—under § 2G2.1, and for 18 U.S.C. § 2252-the “transport, distribution, and receipt of child pornography”—under § 2G2.2. Guidelines’ History at 10. At the time, simple possession was not a federal crime. See Guidelines’ History at 10.

In establishing base offense levels for child pornography, as was the case with other offenses, the original Commission examined existing sentencing practices. The Commission did this, in part, by translating the Parole Commission’s offense categorization into an estimated guideline offense level. For the offenses included under § 2G2.2, the Parole Commission categorization would be translated as base offense level 18 to 20. The Commission set the base offense level for § 2G2.2 at level 13, which was substantially lower than the Parole Commission’s categorization based on the expectation that the specific offense characteristics included in the new guideline would apply in many cases to increase the guidelines calculation from base offense level 13 to as high as level 20. Two specific offense characteristics were provided in § 2G2.2: a 2-level increase when an image depicted a child under twelve years of age; and no less than a 5-level increase for distribution with additional increases keyed to the retail value of the material distributed, rather than the number of images or reason for distribution.

Guidelines’ History at 10 (footnotes omitted). In 1988, it revised § 2G2.2 “to expand the specific offense characteristic to refer to a prepubescent minor or a minor under the age of twelve years,” which provided “an alternative measure to be used in determining whether the material involved an extremely young minor for cases in which the actual age of the minor is unknown.” Guidelines’ History at 12 (internal quotation marks omitted).

In 1990, the Sentencing Commission compiled a report on the status of child pornography prosecutions in the federal system. Guidelines’ History at 13. First, the report noted Congress’ findings regarding child pornography:

(1) both commercial and non-commercial distribution and receipt of child pornography contribute to the molestation and abuse of children; (2) child pornography had become a highly organized, multimillion dollar industry that operates on nationwide scale, but federal law enforcement efforts should not be limited to large scale distributors of child pornography; (3) child pornography causes substantial harm to both the child victim and to society as a whole since abused children tend to grow up “in an adult life of drugs and prostitution [and] become child molesters themselves, thus continuing the vicious cycle.”

Guidelines’ History at 13 (footnotes omitted). The report also analyzed child pornography prosecutions and made recommendations based on 28 U.S.C. § 994. Guidelines’ History at 13.

The report identified only 31 cases involving child pornography convictions, half of which involved defendants who had engaged in sexual abuse of children and none of which involved trafficking or production of child pornography for pecuniary gain. Rather, the trafficking cases involved defendants who traded images for pleasure. Thirty-four percent of child pornography offenders convicted under 18 U.S.C. § 2252 received a departure from the guidelines and the departures were almost evenly split between sentences above and below the guideline range.

Guidelines’ History at 13 (footnotes omitted). The report suggested enhancements that would account for past or present abuse of children, which is “often referred to as a ‘pattern of activity.’ ” Guidelines’ History at 13-14 & n. 60. The report also concluded that § 2G2.2’s penalty structure did not give sufficient credence to Congress’ intent with respect to repeat child pornography trafficking offenders, because, although 18 U.S.C. § 2252 imposed a mandatory minimum term of five years’ imprisonment, the guidelines calculations were far below that minimum. Guidelines’ History at 14. The report “suggested that the base offense level for § 2G2.2 be increased from level 13 to 15 to better insure that the severity of the offense as indicated by the statutory penalty structure was reflected for all offenders under the guideline.” Guidelines’ History at 14 (internal quotation marks omitted).

During a notice and comment period, the Sentencing Commission considered additional enhancements regarding (i) sadistic and masochistic conduct, (ii) differentiating between victims under twelve and under sixteen, and (iii) whether the defendant sexually abused a minor at any time before the offense. See Guidelines’ History at 15. The Sentencing Commission then promulgated § 2G2.2 with a 4-level enhancement for material that portrays “sadistic or masochistic conduct or other depictions of violence,” and commentary recommending an upward departure when the defendant had sexually abused a minor at any time in the past. See Guidelines’ History at 16.

'In 1990, Congress criminalized the possession of child pornography and directed the Sentencing Commission to “‘amend existing guidelines for sentences involving sexual crimes against children ... so that more substantial penalties may be imposed if the Commission determines current penalties are inadequate.’ ” Guidelines’ History at 17 (quoting Crime Control Act of 1990, Pub.L. No. 101-647, 104 Stat. 4789, Title III, § 321). The Sentencing Commission, after a notice and comment period and an additional staff report, revised the child pornography guidelines by adding § 2G2.4 “to address offenses involving receipt or possession of materials depicting a minor engaged in sexually explicit conduct, as distinguished from offenses involving trafficking in such material, which continue to be covered under § 2G2.2.” History at 18-19 (internal quotation marks omitted).

The Commission decided to treat receipt, as distinguished from receipt with intent to traffic, as analogous to possession (rather than to trafficking) because the Commission determined that receipt is a logical predicate to possession, and concluded that the guideline sentence in such eases should not turn on the timing or nature of law enforcement intervention, but rather on the gravity of the underlying conduct.

Guidelines’ History at 19 (internal quotation marks omitted)(alterations omitted). The Sentencing Commission set the base offense level for § 2G2.4 at 10 for the receipt or possession of child pornography, and set the base offense level for § 2G2.2 at 13 for receiving, transporting, advertising, or possessing child pornography with the intent to traffic. See Guidelines’ History at 19. These changes were in effect for less than a month before Congress passed superseding legislation. See Guidelines’ History at 19.

In response to the Sentencing Commission’s changes,

lawmakers expressed dissatisfaction with the Commission’s efforts in establishing sentencing guidelines for child pornography offenders convicted of possession. On July 18, 1991, Senator Jesse Helms addressed the changes made to the child pornography guidelines. Senator Helms, along with cosponsor Senator Strom Thurmond, proposed an amendment to the 1991 appropriations bill (the “Helms-Thurmond Amendment”) that directed the Commission to raise base offense levels for all child pornography offenses and return the offense of receipt of child pornography to the trafficking guideline at § 2G2.2. In support of this amendment, Senator Helms stated,

[I]n effect, ... the Sentencing Commission has undermined Congresses] attempt to assure severe punishment for dealing in child pornography. I want to turn that around. I want to say to the Sentencing Commission, “You made a mistake; now you correct it.” The Helms-Thurmond amendment ensures that criminals will receive serious punishment for child pornography offenses, not a mere slap on the wrist.

The only other floor statements regarding the Helms-Thurmond Amendment were offered in support and the amendment passed the Senate by a vote of 99-O.

Guidelines’ History at 19-20 (footnotes omitted). While the House of Representatives was considering a similar amendment, the Sentencing Commission sent a letter to the House, explaining that

“the debate in the Senate mischaracter-ized the Commission’s recent actions as having reduced the guideline penalties for trafficking in child pornography” and offered support for why the Commission had chosen to categorize receipt and possession of child pornography as it did. The Commission noted that proposed child pornography amendments “continue to require substantially tougher penalties than typically were imposed under pre-guidelines practice,” and explained that a high rate of downward departures and low likelihood of government appeal from these departures suggested that judges and prosecutors thought “that the offense level for the least serious forms of conduct under § 2G2.2 was too severe.” The Commission suggested a substitute, more general, directive for the Helms-Thurmond Amendment directing the Commission to “review and amend as necessary” the child pornography guidelines.

Guidelines’ History at 20-21. The amendment’s proponent responded to the Sentencing Commission’s, letter, contending that “the Commission’s decision to reference simple receipt to the possession guideline was unexpected as ‘[sjurely no member of Congress understood that by voting to create a new federal offense he would also be voting to reduce penalties for existing offenses.’ ” Guidelines’ History at 22 (footnote omitted). The House amendment passed by a vote of 414-0. See Guidelines’ History at 22. The legislation did not directly “disapprove” the Sentencing Commission’s earlier amendments, but directed the Sentencing Commission to (i) treat receipt cases similar to trafficking cases, rather than treating them as possession cases; (n) set a base offense level in § 2G2.2 of not less than 15 with at least a 5-level increase for offenders with a pattern of activity involving sexual abuse or exploitation of a minor; and (iii) use § 2G2.4 for simple possession cases and set the offense level at not less than 13 with at least a 2-level increase for possessing ten or more child pornography items. Guidelines’ History at 23-24.

Congress acted again in December 1995, directing the Sentencing Commission to increase the base offense level for child pornography offenses by at least 2 levels and to increase the base offense level by at least 2 levels if a computer was used to solicit participation. See Guidelines’ History at 26. The Sentencing Commission “recommended increasing the base offense levels by only two levels, the minimum increase permitted by the directive”; noted that computer use in child pornography crimes had become more prevalent; explained that offenders who had a prior history of abusing children were more likely to recidivate, warranting a longer sentence; stated that it was considering an expansion of the pattern-of-activity enhancement; and suggested clarifications for the possession and receipt guidelines by combining §§ 2G2.2 and 2G2.4, and including a 2-level downward adjustment for simple receipt cases. Guidelines’ History at 30-31. In 2000, Congress directed the Sentencing Commission to address different distribution offense characteristics, and the Sentencing Commission amended the guidelines to include 2- to 7-level increases depending on, for example, whether the defendant distributed child pornography for pecuniary gain or a thing of value, or distributed the child pornography to a minor. See Guidelines’ History at 32-36.

In 2003, “for the first and only time to date,” Congress directly amended the sentencing guidelines, which it did through the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act, Pub.L. No. 108-21, 117 Stat. 650 (“PROTECT Act”). Guidelines’ History at 38. The PROTECT Act directly amended the guidelines by adding “specific offense characteristics relating to the number and type of child pornographic images.” Guidelines’ History at 39. It “also provided general directives, created a five-year mandatory minimum for trafficking and receipt, [and] raised the statutory maximum for