concurring in part and dissenting in part:
I concur in the majority opinion except with regard to section II. B., “Pattern of Sexual Exploitation.” I disagree with the majority’s analysis of that issue because as the sole U.S. distributor of OSM’s pornography and a businessman in close contact with the pornography producer, Kemmish’s role was crucial to the ongoing success and viability of the business. As such, he was certainly “engaged in a pattern of activity involving the sexual abuse or exploitation of’ minors, and therefore deserved the five-level enhancement under U.S.S.G. § 2G2.2(b)(4). The facts of this case are far more egregious than the typical child pornography trafficking or distribution case and therefore the district court should have considered departing from the usual conception of “distributor” in analyzing the applicability of the guideline. See 1995 U.S.S.G. ch. 1 pt. A intro, comment. 4(b).
This is a question of first impression for the Ninth Circuit. In addition to being merely persuasive authority, none of the case law cited by the majority opinion involved traffickers of child pornography who were essential to the success of a pornography *943operation as Kemmish was. See United States v. Chapman, 60 F.3d 894, 895 (1st Cir.1995) (defendant’s conduct relevant to the § 2G2.2(b)(4) enhancement consisted of sending four photographs via a computer information network); U.S. v. Surratt, 87 F.3d 814, 819 (6th Cir.1996) (Sixth Circuit refused to apply the enhancement because all evidence of Surratt’s abuse and exploitation of minors was unrelated to the offense charged, that is, the receipt of sexually explicit depictions of minors); United States v. Barton, 76 F.3d 499, 501 (2d Cir.1996) (district court explicitly noted that defendant “was not involved in the commercial distribution or production of child pornography”); and United States v. Ketcham, 80 F.3d 789 (3d Cir.1996).
Kemmish’s participation in the Overseas Male pornography business far exceeds that of any trafficker heretofore considered with regard to § 2G2.2(b)(4) by a court of appeals. Kemmish sold hundreds of video tapes for hundreds of thousands of dollars in a mere six month period. At the sentencing hearing, the government proffered that the photographer of the child pornography possessed and sold by Kemmish lived in Mexico. The proffered evidence indicated that Kem-mish was in frequent contact with the photographer: he had made numerous trips to Mexico and had had substantial telephone and fax contact with the photographer in Mexico.
Kemmish possessed over three hundred and fifty videotapes depicting child pornography, many of which involved children under the age of 12. Two hundred and four of the tapes were full length “master quality” videotapes which could be used to create hundreds of copies each. Kemmish had twenty-four video recorders connected together for mass reproduction of the tapes and hundreds of blank tapes. He was the sole distributor of OSM’s materials in the United States and maintained a customer mailing list of more than 2,500 names.
The tapes in Kemmish’s possession depicted 600 to 800 children engaging in sexually explicit conduct, including sadistic or masochistic conduct and other depictions of violence. By his own records, Kemmish sold these tapes to hundreds or thousands of people, who in turn viewed and/or distributed them. This is not a case where Kemmish simply distributed the video tapes after they were made; the tapes simply would not have been produced or made in such quantity without Kemmish. This conclusion is borne out by the Government’s proffered evidence indicating that OSM had been unable to continue distribution of its “little boy” line after Kemmish’s arrest. Kemmish was clearly crucial to the operation.
The majority correctly points out that the Sentencing Commission Commentary supports the conclusion that the § 2G2.2(b)(4) five-level enhancement should not be applied to traffickers and distributors who were not physically involved in the production of child pornography. U.S.S.G. § 2G2(b)(4), comment. n. 1 (Nov.1996) (Appendix C, amendment 537). However, the Sentencing Commission Guidelines’ note did not contemplate the situation, such as this one, where a trafficker or distributor is necessary and central to the viability of a child pornography business and therefore the creation of pornography involving the physical abuse and exploitation of children. Because Kemmish was clearly “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor,” he should have been given the increase under § 2G2.2(b)(4).
Although commentary accompanying the Sentencing Guidelines is to be given controlling weight unless it is plainly erroneous or inconsistent with the guideline, Stinson v. U.S., 508 U.S. 36, 38, 113 S.Ct. 1913, 1915, 123 L.Ed.2d 598 (1993), courts also have discretion to depart from the guidelines in unusual or atypical cases. Koon v. U.S., — U.S. -, -, 116 S.Ct. 2035, 2044, 135 L.Ed.2d 392 (1996). The Sentencing Commission did not intend that the guidelines be applied mechanically:
When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.
1995 U.S.S.G. ch. 1, pt. A, intro, comment. 4(b).
*944The Commission adopted this departure policy because it recognized the difficulty in prescribing “a single set of sentencing guidelines to encompass the vast range of human conduct potentially relevant to a sentencing decision.” Id. The differences between a trafficker of child pornography who sends several photographs to a fellow pedophile and the sole distributor of a child pornography video line whose video tapes and equipment have reproductive capabilities with a retail value of over two million dollars are just the sort of differences contemplated by the Commission’s departure policy. Although this case does not involve departure from a guideline, but rather interpretation of a guideline, the principles underlying the Commission’s departure policy also apply here. These principles support interpreting the guideline as allowing for a five-level enhancement in atypical cases where an individual distributor is necessary to a business which engages in the sexual abuse and exploitation of hundreds of children.1 In essence, Kemmish was not a mere distributor. Rather, his involvement was extensive enough — he did everything but photograph the children — that he is better characterized as a producer of child pornography. Therefore, the commentary accompanying § 2G2.2 should not prevent the district court from imposing the five-level enhancement for Kemmish’s pattern of activity involving the sexual abuse and exploitation of the child victims of OSM’s pornography business. I would remand the case for resentencing to allow the district court to apply a five-level enhancement under § 2G2.2(b)(4).
. We review this decision by the district court de novo, rather than for an abuse of discretion, because the district court decided that the guideline did not include distribution as exploitation as a matter of law. See U.S. v. Robinson, 94 F.3d 1325, 1327 (9th Cir.1996) (we review interpretation of the Sentencing Guidelines de novo).