pornography. The facts showed that the offense conduct consisted of the defendant trading
pornography with others via the Internet, with the defendant's full knowledge that the pictures were
of children. Whether he received personal enjoyment from the pictures of children that he traded
is irrelevant; harm is done in sustaining a market for such pictures.
The offense conduct is exactly
the sort of conduct that 18 U.S.C. § 2252(a)(1) was intended to regulate.
Congress amended 18
U.S.C. § 2252 in 1984 to include those who receive and distribute child pornography even though
they lack a commercial motive, because the harm to the child exists regardless of the viewer's
motivation, and "the industry would disintegrate absent willing buyers, who play a necessary role
in any distribution network."
Because the circumstances surrounding the commission of the crime
were not unusual, the facts of the case did not provide grounds for departure.
Thus, a departure was justified only if the defendant had a characteristic which took him out
of the heartland of cases. Certainly the defendant's superior education, military performance, and
intelligence are exceptional. But these are not characteristics upon which a departure can be based.
Nor would poor impulse control be unusual, regardless of whether it stemmed from an impulse
See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2641, 37 L.Ed.2d 446
(1973)("[A] person's inclinations and "fantasies ... are his own and beyond the reach of
government ....' "); see also New York v. Ferber, 458 U.S. 747, 756-762, 102 S.Ct. 3348, 3354-
357, 73 L.Ed.2d 1113 (1982)(states entitled to greater leeway in regulating child pornography
because of, inter alia, harm to children used in materials produced, and regulating the economic
market for child pornography is lawful to decrease the motive for producing it).
See United States v. Miller, 776 F.2d 978, 979 (11th Cir.1985), cert. denied, 475 U.S. 1129,
106 S.Ct. 1659, 90 L.Ed.2d 201 (1986).
See U.S.S.G. § 5H1.2 (education and vocational skills not relevant in determining whether a
sentence should be outside the applicable guideline range); § 5H1.5 (employment record not
relevant); § 5H1.11 (military, civic, charitable, public service, employment-related contributions