Remarkable coda at end of First Circuit opinion affirming child porn sentence

The First Circuit yesterday in US v. Stone, No. 08-1459 (1st Cir. Aug. 5, 2009) (available here), affirmed a long within-guideline sentence for a first offender in a child porn case.  The opinion talks through a number of sentencing issues, though what make the ruling  blog-worthy is this remarkabl final paragraph in Stone:

We add a coda.  Sentencing is primarily the prerogative of the district court, and the sentence imposed in this case is within permissible limits.  There is no error of law and no abuse of discretion.  That said — and mindful that we have faithfully applied the applicable standards of review — we wish to express our view that the sentencing guidelines at issue are in our judgment harsher than necessary.  As described in the body of this opinion, first-offender sentences of this duration are usually reserved for crimes of violence and the like. Were we collectively sitting as the district court, we would have used our Kimbrough power to impose a somewhat lower sentence.

This coda — which strikes me as truly unprecedented — surely provides little solace to the defendant whose long prison sentence was affirmed.  But it should provide inspiration and assistance to practitioners and judges within the circuit who might otherwise worry about how the First Circuit would view significant downward variances from the child porn guidelines in other cases.

 Some related federal child porn sentencing posts:

• ABA Journal covers the controversies over federal child porn sentences
• Potent DOJ response to ABA Journal article about federal child porn sentencing
• Potent response to DOJ account of federal child porn sentencing
• Strong sentencing opinion noting disparities in federal child porn downloading cases
• Yet another notable written opinion in a federal child porn downloading case
• Is there an ivy-leaguer exception to federal child porn charges?
• More examples of sentencing uncertainty surrounding federal child porn cases
• Is there a law student sentencing discount for federal child porn charges?
• Judge Adelman operationalizes deconstructed child porn guidelines
• Another notable child porn sentencing decision
• Another notable sentencing opinion in a child porn downloading case
• Effective review of federal uptick in child-porn prosecutions
• Another puzzling report on federal child porn sentence
• Notable long child porn sentence upheld by split Sixth Circuit