concurring in part and in the judgment:
I agree with the majority opinion except with respect to subsection III.A.2. I would avoid answering the difficult question of when a district court makes a “clear error of judgment” in assessing the seriousness of an offense. Nor do I agree that the district court erred in its observation that the 2003 version of the Guidelines do not distinguish between possessors of child pornography who engage in a pattern of non-internet based, intrastate molestation of children and those who do not. The Sentencing Commission subsequently remedied this oversight by providing for a five level enhancement where the possessor of child pornography “engaged in a pattern of activity involving the sexual abuse or exploitation of a minor.” U.S.S.G. § 2G2.2(b)(5) (2004). Because the current version of the Guidelines draw this distinction, it was not unreasonable for the district court consider the prior version’s deficiency.
I concur in the judgment, however, because the district court unreasonably failed to consider “the need for the sentence imposed to afford adequate deterrence to criminal conduct.” 18 U.S.C. § 3553(a)(2)(B). The district court discussed the need to protect the public from future crimes by Duhon, but it failed to explain how a sentence of probation would discourage others inclined to obtain child pornography. When the sentence imposed is so far below the Guidelines range, general deterrence becomes a relevant factor that must be given significant weight. United States v. Haack, 403 F.3d 997, 1004 (8th Cir.2005) (a sentence is unreasonable where the “court fails to consider a relevant factor that should have received substantial weight”). The district court’s failure to account for that important objective deprives this extraordinarily lenient sentence of the “compelling justification” required to render it reasonable. See United States v. Dean, 414 F.3d 725, 729 (7th Cir.2005) (“the farther the judge’s sentence departs from the guidelines sentence ... the more compelling the justification based on factors in section 3553(a) that the judge must offer”).