Eleventh Circuit distinguishes downloaders from producers in affirming kiddie porn stat max sentence

The Eleventh Circuit has a notable and, in my view, important discussion of different types of child pornography offenders today in US v Dean, No. 09-16133 (11th Cir. March 16, 2011) (available here), in the course of affirming a 30-year prison term for the producer of child porn.  Here is a segment of the panel decision's discussion:

Dean also relies on a paper by federal public defender Troy Stabenow, Deconstructing the Myth of Careful Study: A Primer on the Flawed Progression of the Child Pornography Guidelines (Jan. 1, 2009), http://www.fd.org/pdf_lib/child%20porn%20july%20revision.pdf and cases that have cited it. Dean’s reliance is misplaced.  Stabenow’s paper argues that the current Guidelines for child-pornography offenses are flawed because the severity of sentences entered against the typical downloader of child pornography, who has had no direct connection to the production of the materials or the abuse of children, has increased drastically without any “empirically demonstrated need for consistently tougher sentencing.” Id. at 3. The cases that Dean references as having cited Stabenow’s paper are similarly concerned that the first-time “typical downloader” (as opposed to a “predator” or “active abuser”) may receive too harsh a sentence....

In this case, however, we need not, and expressly do not, address the concerns in, or the rationale of, the Stabenow article or the cited cases. Dean is no mere downloader. He sexually abused his stepdaughter and filmed hundreds of the episodes of abuse to generate pornographic films.  Not one of the sources he cites supports the argument that the Guidelines are too harsh with respect to perpetrators who assault children to produce pornography.  To the contrary, Dean’s stepdaughter has suffered the kind of grave harm described by our en banc Court in Irey.

It may not seem too surprisng or ground-breaking to see a court distinguish "the first-time typical downloader" from "a predator or active abuser" in the context of reviewing the soundness of a child pornography sentence.  However, I cannot recall any other circuit ruling drawing this important distinction and using it so clearly to justify its ruling.  That fact alone does not make Dean a monumental opinion, but it sure does make blogworthy.