United States v. Irey

Before DUBINA, Chief Judge, and TJOFLAT, EDMONDSON, BIRCH, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON, PRYOR, MARTIN and HILL,* Circuit Judges.

“The federal courts of appeals review federal sentences and set aside those they find ‘unreasonable.’ ” Rita v. United States, 551 U.S. 338, 341, 127 S.Ct. 2456, 2459, 168 L.Ed.2d 203 (2007) (citing United States v. Booker, 543 U.S. 220, 261-63, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005)). With that statement the Supreme Court opened its opinion in the Rita case. Later in the opinion the Court was more specific and emphatic:

In sentencing, as in other areas, district judges at times make mistakes that are substantive. At times, they will impose sentences that are unreasonable. Circuit courts exist to correct such mistakes when they occur. Our decision in Booker recognized as much.

Rita, 551 U.S. at 354, 127 S.Ct. at 2466-67. We believe that the Supreme Court meant what it said in the Rita opinion and elsewhere about our duty to correct sentencing mistakes. At the same time, we recognize that our substantive review of sentences is deferential and that we only look to see if the district court abused its discretion by committing a clear error in judgment. Even so, the sentence in this case can withstand review only if deference amounts to abdication, if sentencing discretion is unbridled, and if “unreasonable” is a hollow term. The sentence that the district court imposed is a clear error in judgment, a mistake, and it is our responsibility to “correct such mistakes when they occur.”

*1166The sentence is substantively unreasonable primarily, but not solely, because of the nature and extent of William Irey’s criminal conduct. The steady stream of criminal cases flowing through this Court brings us many examples of man’s inhumanity to man, and we see a depressingly large number of crimes against children. But the sexual crimes that Irey committed against some of the most vulnerable children in the world set him apart. He raped, sodomized, and sexually tortured fifty or more little girls, some as young as four years of age, on many occasions over a four- or five-year period. He also scripted, cast, starred in, produced, and distributed worldwide some of the most graphic and disturbing child pornography that has ever turned up on the internet.

The horrific nature of Irey’s crimes resulted in an adjusted offense level that would have led to an advisory guidelines range of life imprisonment. Because the government had charged all of Irey’s crimes in just one count, the statutory maximum was 30 years and that had the effect of reducing the guidelines range to 30 years as well. The district court, however, did not impose that sentence. Instead, after deciding that pedophilia was an “illness” that had impaired Irey’s volition, and pronouncing that Irey himself was a victim, like all of the little children he had sexually violated for so long, the district court deviated downward from the 30-year guidelines range and imposed a sentence of only 17-1/2 years. Our duty to set aside unreasonable sentences requires that we set aside this one.

I. The Criminal Conduct

William Irey had a seemingly insatiable sexual appetite. Or as a psychiatrist he later retained would phrase it, Irey was “highly sexualized.” While in Orlando, where he lived and had his business, Irey indulged his sexual appetite by consorting with prostitutes on a weekly basis. As the psychiatrist put it, Irey “engaged in other forms of sexually disordered behavior with prostitutes (e.g., sadomasochistic acts).” That went on for 15 years, despite the fact that he was married the entire time.

Starting in 2001 Irey began spending two weeks out of every month in China on business. On the weekends when he was there he would indulge himself in more “sexually disordered behavior” by traveling to brothels in different Asian countries. Early on he went to a brothel in Cambodia that featured underage girls and discovered that he enjoyed having sex with children. Over a period of four or five years, he “visited numerous brothels where they had underage children.” Irey, who is 5’10” and weighs 200 pounds, was in his forties at the time. All of the children he sexually abused were underage girls; none of them was older than sixteen, and some of them were only four, five, or six years old.

Irey went to those brothels and had sex with the children “many many times,” as he recounted it, during his numerous trips to that part of the world, and as time went on he became “more and more obsessed and was returning to Asia more and more often” to sexually abuse children. He paid the Cambodian brothels up to $1,500 for the use of each child, and he would typically buy two or three of the children at a time. When he was too busy in China on business to get away for weekend visits to Cambodia, Irey would sometimes pay to have some of the young girls flown to him so that he could sexually abuse them when he found the time. Irey’s sexual violation of the children did not end until August of 2006 when law enforcement in this country finally caught up with him.

The little Cambodian children whom Irey victimized were “abjectly impoverished” and, as the district court noted, “perhaps the most vulnerable of the world’s society.” We know some of the *1167details of what Irey did to them because law enforcement agents seized his computers and found that he had memorialized at least part of what he had done in photographs and videos for his later viewing pleasure. On one of his computer hard drives there were more than 1,200 images of Irey sexually abusing the children, and that number does not include the obscene images Irey produced of the children that do not show him in the picture. Differentiating the children in so many images taken over a period of years is difficult, but we know that Irey sexually victimized at least fifty different underage girls.1

The photographs and videos Irey produced reveal some details of how he violated and debased the children.2 There are images showing “Irey on a bed with several prepubescent female Asian children performing oral sex on him while he performs oral sex on them.” Other images depict “Irey engaged in anal and vaginal intercourse with a prepubescent Asian female with the words ‘9 Yo Fuck’ marked on her body,” and “an arrow is painted on her body which points to her vaginal area.” Some of them show “the writing ‘Front,’ ‘Back,’ ‘Brown,’ ‘Back door,’ ‘9 Yo Fuck’ on prepubescent girls’ bodies. The writing has arrows pointing to the vaginal and anal areas.” Other images are of Irey “engaged in vaginal and anal intercourse with prepubescent Asian girls” who are “tied up and bound with black and grey duct tape.” There are also images “of Irey with nude prepubescent children posing as trophies.”

Irey’s defilement of the little children did not stop at rape, sodomy, and humiliation. He also tortured them. There are images of “Irey inserting a plastic green/yellow glow stick, dildos, cockroaches and candy in the vaginal cavity of prepubescent Asian females.” Some images show “Irey inserting a plastic tube into the vagina of a prepubescent Asian female. Several of the images show the plastic tube containing cockroaches crawling into the vagina of these children.” One image shows him “performing vaginal intercourse on a prepubescent girl” and “[i]mbedded *1168on the image [in all capitals] is the phrase: ‘Big Cock Push Bug Deep Into 9 Yo Girl, She Hurt in Pane.’ ”

If Irey felt any guilt about purchasing helpless little girls and subjecting them to pain and degradation, the images he recorded do not show it. In some of them he can actually be seen smiling as he inflicts the sexual abuse.

Irey did not use the massive amount of child pornography he produced only for his own prurient perusal; he did not keep it to himself. He used copies of the images he made to gain access to the collections of other purveyors of child pornography. Irey gave them copies of the pictures and videos he had produced showing his sexual violation and humiliation of the little Cambodian children in return for their waiver of the access fee to the collections they already had on their websites. Through that type of trade the operators of those websites were able to add Irey’s graphic images to their collections, which led to those images being spread around the world. Irey in turn was able to save some money while expanding his collection of child pornography, and he was also able to minimize the use of his credit card, which made it easier for him to hide what he was doing from his wife.

II. The Capture and Conviction

Irey’s use of the internet led to his capture. Federal agents intercepted and traced to Irey email messages that he had sent to an illegal website offering child pornography. In one of those emails, which Irey sent in mid-January 2006, he asked the website operator: “do you remember me from before, could I trade you some of my latest pics for 30 days on your site. Let me know a good address to send you some samples.” About a month later, agents intercepted another email from Irey, which stated: “do you want trade some new pics never saw before. I trade this for site access.”

The agents searched Irey’s house on August 13, 2006, and seized six computers. On a hard drive they found a collection of more than 1,200 images of Irey sexually violating young girls. The agents sent those 1,200 plus images to the National Center for Missing and Exploited Children, which in turn provided an extensive report about where the images had been seen before. More than 100 separate law enforcement agencies reported to the National Center that they had previously turned up some of those images of Irey’s sexual abuse of underage girls in their investigations of child pornography. The graphic images Irey had produced and distributed were already widely known as the infamous “pink wall series,” so named because of the pink walls that could be seen in the background of some of the photos and videos. The series included images of some of the worst child sexual abuse the agents had ever seen. And, as the Assistant United States Attorney pointed out at the sentence hearing: the pictures of these children, some of whom are “four or five, six years old ... will forever be out there online.” As the record of their abuse continues to circulate, “[t]hey will be victimized over and over again.”

In a one-count indictment filed on December 13, 2006, Irey was charged with violating 18 U.S.C. § 2251(c). The indictment alleged that he “did knowingly employ, use, persuade, induce, entice, and coerce minors to engage in sexually explicit conduct outside the United States, for the purpose of producing visual depictions of such conduct, and transporting such visual depictions to the United States by any means, including by computer and mail.”

Irey was taken into custody on December 14, 2006. He was released on an unsecured bond conditioned on his being *1169housed in a psychiatric facility “for treatment of mental health issues related to the current charges.” He remained at that facility near his home for at least thirteen months.

At a change of plea hearing on July 2, 2007, Irey pleaded guilty to one count of violating 18 U.S.C. § 2251(c). When asked to tell the court what he had done, Irey replied: “Went to — overseas, visited numerous brothels where they had underage children and photographed them, had sex with them, and had them on my laptop when I entered the United States.” He added that it happened over a period of four years,3 the last time being in 2006. Irey agreed with the government’s statement at the hearing that he had admitted to the agents that while overseas he had sex with children he knew were minors, had produced pornographic images of that, and had then transported those images back into this country.

III. The Sentencing Proceedings and Sentence

A. The Calculation of the Guidelines Range

The Presentence Report began the calculation of Irey’s guidelines sentencing range with a base offense level of 32 under U.S.S.G. § 2G2.1(a), because the offense was one involving the sexual exploitation of minors by production of sexually explicit visual or printed matter. Added to that base offense level were four levels under § 2G2.1(b)(l) because the offense involved children under the age of 12; two levels under § 2G2.1(b)(2)(A) because the offense involved the actual commission of sexual acts; two levels under § 2G2.1(b)(3) for distribution of child pornography; and four levels under § 2G2.1(b)(4) because it involved material portraying sadistic conduct, producing an adjusted offense level “subtotal” of 44. Then two levels were added under § 3D1.4 as a result of grouping because of multiple victims.4 Those additions produced a combined adjusted offense level of 46.5 From that were deducted two levels under § 3El.l(a) for acceptance of responsibility and an additional level under § 3El.l(b) for timely notification of intent to plead guilty. Subtracting those three levels from the 46 produced a final offense level of 43.

Because Irey had no prior convictions his criminal .history category was I. Even with that category an offense level of 43 produces an advisory guidelines imprisonment range of life. The statute under which he was convicted, however, carries a statutory maximum of 30 years. See 18 U.S.C. § 2251(c). As a result, the guide*1170lines “range” became 360 months (30 years); there was no spread — the top and bottom of the range were the same. See U.S.S.G. § 5Gl.l(a) (“Where the statutorily authorized maximum sentence is less than the minimum of the applicable guideline range, the statutorily authorized maximum sentence shall be the guideline sentence.”).

Neither party objected to the calculation of the guidelines range. In his sentencing memorandum, Irey’s counsel stated: “Mr. Irey does not object to the Probation Officer’s advisory guideline calculations and does not seek a downward departure from the guideline range described in the PSR.” Irey did, however, ask for a sentence below the guidelines range of 30 years. The statute requires a minimum sentence of 15 years. See 18 U.S.C. § 2251(c). Irey’s sentencing memorandum argued that “[a] sentence of 15-20 years in prison, followed by a substantial term of supervised release” should be imposed.

The government filed a sentencing memorandum arguing that “[i]f this case is atypical, it is because of aggravating, not mitigating, factors,” and it urged the court to impose a sentence equal to the guidelines range and statutory maximum of 30 years. The government told the court that it “should give great weight to the findings of Congress ... that departures should be extremely rare in child sex crime cases” because of the seriousness of those crimes. It specifically argued that any variance based on Irey’s “diminished capacity, aberrant behavior, or family ties and responsibilities” would result in an unreasonable sentence. The government also pointed to precedent establishing that a guidelines sentence may be appropriate even where, in the government’s words, the defendant’s “psychological evaluation [had] found that he was not a significant risk to children or likely to molest children in the future.” See United States v. Scott, 426 F.3d 1324, 1327, 1330 (11th Cir.2005).

In anticipation of the argument that Irey’s actions were “not purely volitional,” the government argued that Irey “has not shown that his mental condition is outside the heartland of similar cases” and cited two of our decisions in support of that proposition. See United States v. Caro, 309 F.3d 1348, 1353 (11th Cir.2002) (“[M]ost people who collect a sizeable amount of child pornography are in someway addicted to collecting it.”); United States v. Miller, 146 F.3d 1281, 1285 (11th Cir.1998) (“Nor would poor impulse control be unusual [for a collector or purveyor of child pornography], regardless of whether it stemmed from an impulse control disorder. ... An impulse control disorder is not so atypical or unusual that it separates this defendant from other defendants.”). Acknowledging that Irey may have “rationalized his crimes against children by failing to perceive the harm he was inflicting,” it argued that “is not so uncommon as to take this case out of the heartland.” In regard to the possibility that Irey, as a pedophile, may have “experience[d] self-deceptive thought processes,” the government emphasized that he “has horribly sexually abused numerous children over a period of years.” The government’s sentencing memorandum concluded by arguing that “any variance under 18 U.S.C. § 3553(a) would be unreasonable because there is nothing unusual about the nature or circumstances of this offense or the defendant’s personal characteristics.”

B. The Reports of the Psychiatrist and Psychologist

In connection with sentencing defense counsel hired two experts in the field of psychology and psychiatry, and he furnished their reports to the court. One of the reports was from Dr. Fred Berlin, who is board-certified in both general and forensic psychiatry. Although he did not *1171testify at the sentence hearing, his report is mentioned in the Presentence Report, a copy of it was attached to defense counsel’s objections to the Presentence Report, and it was discussed by Dr. Shaw, who did testify at the hearing.

Dr. Berlin reported that Irey “has a psychiatric disorder known as heterosexual pedophilia,” which means “he experiences a strong sexual attraction to prepubescent girls; girls who ordinarily are less than thirteen-years-of-age.” Dr. Berlin stated that Irey was capable of relating intimately to an adult woman, but he found that Irey “experienced intense sexual cravings for female children as well.” Irey was “highly sexualized” and admitted to having “engaged in other forms of sexually disordered behavior with prostitutes (e.g. sadomasochistic acts), and ... having viewed images involving bestiality on the Internet.” Nonetheless, Dr. Berlin asserted that “to the best of my knowledge and belief, he has never coerced an unwilling person against their will.”6

Dr. Berlin gave his opinion that “a sexual disorder such as pedophilia does not develop as a consequence of a volitional decision.” He also stated, however, that “[although it is not [Irey’s] fault that he has the disorder, it is his responsibility to do something about it.” Dr. Berlin thought that Irey needed professional treatment but he also pointed out that “[e]ven without treatment, in the past, he had been able to refrain from any sexual contact with children within the United States.”

Dr. Berlin’s report stated that he had found no evidence to suggest that Irey was “characterlog[icall]y flawed,” and concluded that he was “not generally anti-social or psychopathic in his psychological makeup,” nor was he “a man who has generally lacked a sense of conscience.” Instead, he thought that Irey had often simply been unable to “readily appreciate the extent of his improprieties” with the children. Dr. Berlin denied that Irey had “a malicious disregard for the well-being of the girls in question.” Instead, in his professional opinion, “Mr. Irey did have a genuine affection and concern for those youngsters at that time” and actually thought he was helping the little girls he was sexually abusing.7 Dr. Berlin’s view is that, except *1172for the fact that he had spent four or five years raping, sodomizing, and sexually torturing some of the most vulnerable children in the world, Irey is “an otherwise decent man.”

Dr. Ted Shaw, a psychologist, was also retained by the defense, and he submitted a “psychosexual evaluation report” on behalf of Irey. When Dr. Shaw evaluated Irey on August 23, 2007, Irey was at the Lifestream Behavioral Center in Lees-burg, Florida, “on conditional release from jail.” He was undergoing treatment for alcohol abuse problems and sexual addiction. According to Dr. Shaw, a review in May 2007 indicated that Irey “was making appropriate progress,” although his wife and children “refused to attend personal counseling” as part of the family sessions.

Irey admitted to Dr. Shaw that he had used prostitutes in this country and in doing so had contracted a venereal disease, which he passed along to his wife. Irey had also “experimented with bisexuality” and had “enjoyed consensual bondage” with adult females. Irey “described a lack of interest in well-endowed women,” telling Dr. Shaw that “when he married his wife she was thin and had small breasts,” but “[h]er physique has changed over the years.” Irey admitted that he had visited child brothels in Cambodia “for the past five years.” He did, however, lie to Dr. Shaw about some of the details of his sexual abuse of children.8 Irey acknowledged, though, that the children “suffer the most and are victims.”

Dr. Shaw’s report noted Irey’s escalating sexual interest over the preceding ten years, which “could be described as a ‘sexual addiction,’ with many behaviors and an obsessive fixation which included frequent masturbation, anonymous sex with prostitutes and the eventual use of brothels in Cambodia.” He described Irey as “sexually obsessed for at least the last ten years,” and stated his opinion that “Irey’s paraphilias clearly drove his behaviors, in spite of being an otherwise moral and responsible individual, upon whom many people, including family, clients and employees, depended.”

Under one of the risk assessments that Dr. Shaw applied, Irey’s score “places him in the Medium-Low risk category for sexually re-offending.” Another one, the Minnesota Sex Offender Screening Tool-Revised, resulted in a score that placed Irey in the “Moderate Risk Range.” More specifically, Dr. Shaw said, “the five-year, ten-year, and fifteen-year recidivism rates for individuals in the development research study with Mr. Irey’s score are 12%, 14%, and 19%.” Overall, he reported, “the dynamic and static factors, suggest a moderate to low moderate risk of a new charge,” which “can be reduced through continued treatment and informed supervision upon his release.”

*1173C. The Sentence Hearing

The court began the sentence hearing, which was held on January 29, 2008, by noting that it had reviewed the sentencing memoranda, the presentence report, and Dr. Shaw’s report. The first witness was Dr. Shaw. He gave his opinion that Irey has “a long-standing problem with sexual obsession,” and “something like sexual addiction,” and in American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (4th ed. text rev. 2000) (DSM-IV TR) terms, “obsessive-compulsive type disorder, not the full-blown disorder, but with the sexual behavior being the most prominent feature.” So far as he could tell, there was not enough evidence to diagnose Irey with any personality disorder. Dr. Shaw said that Irey is “very low in psychopathy” and explained that “he has this encapsulated area where he was cheating, where he was lying, where he was violating laws; but outside of that, he was — appears to be — to have been a law-abiding citizen.”

As for Irey’s risk of sexually abusing children again, Dr. Shaw testified that: “He’s essentially in the medium low to medium or moderate risk categories, which is — which is below a threshold of likely.” The risk might be further reduced with the use of certain drugs, but he was hesitant to recommend that the court require them given all of their side effects and the fact “that they’re not always useful.” He also noted that Irey is going to be older “when and if he’s released, and he’s going to have experienced a reduction naturally in testosterone and a reduction in sex drive.” Dr. Shaw summed up the risk situation:

So overall, I find him to be, as I said, a moderate risk, a low-moderate risk, low in psychopathy. He does have — has deviant interests. Those interests, he himself has been working on reducing and are likely somewhat reduced already. They are fueled by obsessive thinking and masturbating and by the sex acts themselves.

The court questioned Dr. Shaw about pedophilia, asking him: “I mean, is it an illness? I mean, how would you describe that as a mental health professional?” After noting that Dr. Berlin was on the committee that defined it for purposes of the DSM-IV TR, Dr. Shaw testified:

I’ll take my shot at it. It is a disorder of sexual interest and behavior, and you can have the diagnosis with only the interest. So you could be fascinated, sexually attracted to children and never act on it, and — but if it troubled you or caused any problems for you, you would still be diagnosable with that disorder, and that is being attracted to or engaging in behaviors, sexual behaviors, with prepubescent children.

So it is clearly a well-recognized disorder, and I thought that Dr. Berlin did a good job of saying that it’s not a disorder that someone chooses. It’s something that is within you and you have some tendency towards it.

And frankly and quite sadly, I think the availability of child images, particularly on the Internet, has fueled an epidemic of pedophilia that was kind of probably in the background, people might not have even known that they suffered from it, and then come across these images. But nonetheless, it is a treatable disorder. So it’s a disorder that has different origins.

And Mr. Irey talks about how the disorder manifested itself for him in his being provided with a very young' — or very young prostitutes without asking for them initially; but then he found himself first repelled but then attracted to them, and that’s that sort of natural biological disorder part of it that’s different from the moral and ethical issues.

*1174So for another person, if they had been in the same situation, they may have been repulsed and stayed repulsed by it and, you know, not — -just said, “Don’t ever do that again and I’m not interested;” but that led him into a spiral of interest in children sexually. So that’s the way that it’s manifested itself here.

The district court then remarked that “people accuse me of not knowing what I’m talking about when I say it’s an illness, and maybe I don’t. That’s why I’m asking you.” The court continued:

And I guess the question is, from a standpoint of criminology, is a person who acts out as a result of this condition acting totally of rational free will or is that person acting out as a result of something that is in essence an illness that he at that point has no control over? Do you understand what I’m saying?

Dr. Shaw answered:

I do, Your Honor. I think that the fact that pedophilia is not an underlying element for competency or sanity — it is an Axis I, treatable disorder. Those of us who have been in the field — I’ve been in the sex offender field actually since 1976; and there were pioneers in the field before me, long before me. We have been treating pedophilia for decades.

It is — I think that the problem that a lot of lay people have is in distinguishing between people who are disordered, seriously disordered, and curability versus treatability. Pedophilia is very treatable, and there are many pedophiles in the community who are doing just fine and managing their behavior.

As I’m sure you know, probationers, U.S. probationers, are now subjected to an annual polygraph about whether they are following the rules of their probationer or whether they are re-offending. Pedophiles are capable of not re-offending, even if they have an urge, in the same way that compulsive dessert eaters can choose to not eat dessert.

They have different levels of struggling, and there are aids to that: Good supervision, good treatment, replacing those needs with healthy needs. A lot of treatment is helping people understand the origin of their disorder and then teaching them to, first of all, be aware of the danger signs, the risks to relapsing, but at the same time replacing the way that they were meeting the needs met with the disordered behavior, meet them in healthy ways; and that’s something people can be taught. People like Mr. Irey, who’s bright, who has been successful in business, he can certainly learn the techniques that we teach to prevent — be responsible himself for preventing a reoffense.

It’s — I think because we like to say, “You can’t be cured” — in other words, the best long-term treatment is to be alert to the problem and to — that’s not a cure. Cures, you can forget about it. Just go be around kids again and don’t worry about it. That, we can’t do.

But there are, you know, thousands of pedophiles and child molesters, different, out there, in my belief, who aren’t re-offending, who are in recovery and doing just fine. The new treatments that we use are, I think, very effective.

On cross-examination, Dr. Shaw confirmed for the record that Irey was “a pedophile with a sexual interest in children younger than 13, prepubescent children.” As for Irey’s risk assessment, he conceded the study it relied on was not confined to pedophiles but also included other sex offenders. Dr. Shaw also acknowledged that he had not looked at any of the photographs of Irey’s victims and did not know how many victims there were. When asked if it would surprise him to know that *1175Irey had sexually molested “over 50 children,” he responded that it wouldn’t because Irey “did admit that he had become more and more obsessed and was returning to Asia more and more often.”

Other than Dr. Shaw the only people who submitted statements for, or testified at, the sentence hearing did so as character witnesses for Irey. Although they had not been willing to fully participate in family therapy with him, all of Irey’s immediate family did make statements on his behalf either by video (wife, daughter, and a son) or in person (two other sons) at the sentence hearing. In his short video statement, Irey’s youngest son told about his father building a clubhouse and dirt bike track. In her short video statement, Irey’s daughter (age 16) described her father as “loving” and said that he “has taught me how to be strong, respectful, honorable, loyal, and the list can go on and on.”

In her video statement Irey’s wife of 25 years described him as “a loving and wonderful husband and father” who is “mindful of other people’s feelings.” She said that he was a member of the Rotary Club, the Masons, the United Way, the YMCA, the local theater, the Shriners, and a charity called “Give Kids the World.” He was so good and kind that he had even rescued and taken in a stray dog. Indeed, she proclaimed that she had been “very blessed to have been part of Bill’s life for so many years. He’s taught me so many things.” After watching her video statement, the district court stated: “I understand that Mr. Irey has been a good family man and has family support.”

Irey’s oldest son (age 24) testified that his father had taught him “so much about life and love” and called him “my hero, my star, our father.” His middle son (age 20) testified that Irey had taught him “to stick up for the little guy because a lot of times nobody else will,” and that Irey did things “to make this world what we all envision it could be.” A friend of Irey’s testified that Irey had used his contacts in China to help out the family of that man’s wife in China. He also added that during his 32 years of law enforcement in New York City he had seen “a lot of bad people and Billy Irey is not one of those people.” Irey’s brother testified about how Irey, when a senior in high school in 1976, had loaned his coat to an accident victim, which was typical of his “random acts of kindness,” and how if someone was in need, you could count on him.

No one was more effusive in his praise of Irey than his nephew. He recounted how his uncle had helped get him a computer for college, had listened to him talk about his aspirations, and had helped others over the years. He proclaimed that Irey “had a way of touching people’s lives in a way that I’ve never seen before,” and “bring[ing] out the best in every single person that he meets.” Irey is, in his view, “the most spirited and the most giving person” and “overall is just one of a kind.” He even said that: “I like to think that when God created Uncle Bill, He took a step back and He said, ‘I’m really going to like this one.’ ”

At the conclusion of the evidence, defense counsel argued that a sentence to the statutory maximum of 30 years would be “greater than necessary for Mr. Irey in light of the mitigation that’s been presented.” He assured the court that he was not trying to minimize “the gravity of the acts with which Mr. Irey is charged,” but argued that they were “a compartmentalized area of his whole being that is a result of his pedophilia.” He argued that Dr. Shaw’s testimony and Dr. Berlin’s report established that “the behavior of a pedophile is not totally volitional, that is, it is dictated in some degree by the disease itself.” He also argued that Irey had *1176“lived, other than this disease and this addiction, an exemplary life.” Counsel cited three decisions, two from this Court and one from the Eighth Circuit, which affirmed sentences below the guidelines range in cases involving defendants convicted of distributing child pornography over the internet.9

Counsel told the court that if Irey were sentenced to the 30-year guidelines range sentence he would be 81 years old when he got out.10 Instead of that sentence, counsel asked the court to impose one of “between 15 and 20 years here with up to lifetime supervised release.” Counsel asserted that a 15- or 20-year sentence “would make him 66 or 71 when he got out, if he served the entire sentence.”11 After defense counsel made his argument, the court asked if Irey wanted to say anything. In brief remarks, Irey apologized to “the government agents that have had to get involved in my horrible deeds,” to “the federal attorney’s office,” to the court, “to the children that I have harmed over the last several years of going to Cambodia,” to his family, and to “my employees, that I’ve pretty much hurt them.” He also said: “I’ve hurt a lot of people and I can’t undo that, but I can learn from that and I’m willing to learn.”

The AUSA then argued in favor of the advisory guidelines range sentence of 30 years. She reminded the court that Irey “is not being prosecuted for being a pedophile; he’s being prosecuted for the acts that he committed.” She argued that: “As an alcoholic does not have to drive a car, a pedophile doesn’t have to put themselves in a brothel in Cambodia, which this defendant did for years and years and years, Your Honor.”

The AUSA reminded the district court that the description of Irey’s conduct in the Presentence Report included: “writing filth on children’s bodies, inserting objects into them, binding them up and tying them up, treating them — posing them as trophies, and having several of them engaging in acts with him and with other children at the same time, [and] this is not run-of-the-mill child pornography ... if there is such a thing.” She stressed that this is a production case, and “the defendant clearly had two different parts of his life going on; but in this one, he was the star, the writer, the director, and, at the end, a person who *1177ruined, just absolutely and forever ruined over 50 children’s lives.”

During her argument, the AUSA showed the court photographs of about fifty of the children taken from Irey’s pink wall series; none of those particular photos showed any obscene acts or revealed private parts; they did show some of the children’s faces. She pleaded with the court to “look at these babies’ faces,” pointing out that “some of these children are four or five, six years old. They’re babies, Your Honor.” Referring to the child pornography that Irey produced involving these same children, she pointed out that “[tjheir pictures will forever be out there online. They will be victimized over and over again.... Their lives can never be the same.”

The AUSA also informed the court that when Irey was caught and the cache of child pornography he had produced was found on his computer, the National Center for Missing and Exploited Children contacted law enforcement agencies, which expressed astonishment that “you’ve found the person who produced the ‘pink wall’ series.” The series “was infamous on the Internet, and is turning up even in cases now, that we’re finding more and more of the pink wall series of these young children.”

The AUSA also pointed out that “in some of the photographs, the defendant is smiling as he perpetrates this abuse.” She asked: “How can we square this with the stories we’ve heard today? How can you treat a dog better than you treat a human being, a defenseless baby?” Answering her own question, she argued that “[i]t makes no sense other than there’s something really, really bad about the defendant.” She also asked the court to consider the offense and victimization, and argued that “[t]he message we send to people who would do this has to be considered.” She pointed out that the defendant’s conduct, according to his own admissions, was “not even just child rape and child molestation, but dealing with prostitutes, lying when he doesn’t have to,” and stealing. She characterized him as a person “who lies and steals and hurts other people.”

Focusing on the 1,200 images in the collection of child pornography that Irey produced, the AUSA argued that there is no better word for it than “torture.” She pointed out that what Irey did to the small children produced “some of the most egregious images that the agents have ever seen,” and Irey had been doing it for years and on many occasions and paying up to $1,500 for the rights to use particular children in any way he wanted.

The AUSA concluded her remarks by asking the court to impose a 30-year sentence, the maximum the law allowed, in order to do “justice for these children who cannot plead on their own behalf.”

D. The Sentence Findings and Sentence

The court began its sentencing remarks by stating that sentencing was the hardest thing it had to do and was “particularly difficult in cases like this.” The court noted the statutory minimum or floor was 15 years and the ceiling was 30 years, which was also what the court called “the guideline score.” The court observed that while it was to take into account the guidelines score and consider that score as a benchmark throughout the analysis of the 18 U.S.C. § 3553(a) factors, the guidelines are not mandatory; while an important element of the sentencing calculus, the result of the guidelines calculation is only advisory. The court then stated that it needed to look at the other § 3553(a) factors on an individualized basis in order to determine an appropriate sentence for the case.

*1178Because of the importance of the court’s sentence findings and explanation, we set them out in full:

The first thing I need to do is consider the nature and circumstances of the offense, and I cannot quarrel with Ms. Hawkins’ description of that. The conduct here was horrific. The victims were numerous and perhaps the most vulnerable of the world’s society. So I don’t think there’s a,ny question but we’re dealing with here with an offense that rises to the very top in terms of its seriousness and its effect on other human beings.

These young children were victims who may never, never overcome their abuse. I recognize, of course, that Mr. Irey and his family and friends are also victims here; and society at large is a victim because, as Dr. Shaw indicated, with every new development in human history, there seems to come good and bad with it; and with all the good of the Internet, perhaps one of the bad features of it is that it has made possible what Dr. Shaw describes as an epidemic of child pornography. And, unfortunately, we here in the court system witness that and have to deal with it; and our government, in an effort to deal with it, has imposed — has criminal penalties, very harsh sentences for conduct like this.

So in terms of the characteristics of the offense, the seriousness of it itself, the long-standing, long-term engagement in it certainly does not mitigate in favor of any leniency.

But next I need to look at the history and characteristics of the defendant. By all accounts, Mr. Irey has been a good husband and father for his wife and children and a good friend to his friends and a good person to his community. The lies and thefts, I think, referred to by Ms. Hawkins were essentially part of his effort to cover up his illness, because I think other than the acts of Mr. Irey, there’s no indication that he has engaged in any other sort of criminal conduct or conduct representing poor character.

Also, in terms of the characteristics of the defendant, I think we’re just beginning to learn what pedophilia is and how to deal with it. I think if you look at the reports of the mental health people here and into the literature, which I have done, Mr. Irey’s acts that bring him here today, I think it’s safe to say, were not purely volitional. I think they were due in substantial part to a recognized illness. And while it does not excuse his conduct and he will still be held accountable for it, I think it would be inappropriate to ignore that fact.

I also think it’s appropriate to credit the opinion of the mental health professionals who indicate that Mr. Irey is pursuing treatment and is doing so apparently successfully and, in the view of the mental health professionals, is treatable and has a low risk of recidivism.

Of course, all of that is somewhat academic because by the time he gets out of prison, he’ll be most likely at an age where recidivism would be unlikely, just from a physiological standpoint.

Mr. Irey obviously has a very loving family, and I know he’s proud of his family and deserves whatever credit he should take for having produced these people who have come here today to speak for him. And I know it was difficult for the family, but I think that your support is important and says a lot, not only about your family, but about Mr. Irey himself.

Another aspect of the defendant’s character, as I have alluded to, of course, not his character but his individual characteristics, is his age. As I indicated, even the minimum sentence here, *1179he’s going to be an old man. I guess that makes me an old man, but he will certainly be an older man when he gets out of prison; and that’s, I think, a factor to take into account.

There are other aspects of the statute that essentially are subjective in nature. Of course, adequate deterrence to criminal conduct. I mean, a serious sentence is hopefully going to deter others from conducting similar affairs, although when we’re dealing with an illness like this, I’m not sure that that rationally follows. But, nevertheless, deterrence is an appropriate consideration, and a stiff sentence is in keeping with the seriousness of this offense.

As far as protecting the public from further conduct of this defendant, for the reasons I’ve indicated, I think that militates against a 30-year sentence, given his age, given the fact that he apparently recognizes now, from everything I’ve seen, he recognizes the condition that has led him to commit these acts and to put himself and his life and his family’s life in the order that it is. He’s taken the first step toward rehabilitation and appears to be amenable to treatment and also, according to the mental health professionals, is of low risk of recidivism. So I don’t think society needs further protection from him, at least beyond the statutory minimum sentence.

As often happens in these cases, my judgment — and I am a fallible human being. So what I do is not necessarily right. I just do the best I can under the circumstances. It comes down to my v