dissenting:
The district court’s 60-year sentence all but ensures that Nathan Brown, a flrst-time offender who was 32 when arrested, will die in prison. Brown could have murdered his victims, and he would not have received a harsher sentence.
What is more, Brown suffers this fate only because he was unlucky enough to be sentenced under federal law. Under New York state law, by contrast, the crime of “promoting an obscene sexual performance by a child” is punishable by up to seven years’ imprisonment. See N.Y. Penal Law § 263.10 (providing that the crime is a class D felony), id. § 70(2)(d) (providing that the maximum term of imprisonment for class D felonies “shall not exceed seven years”). If Brown had been charged with three counts of that crime, he would have received, at most, 21 years’ imprisonment.
The district court nonetheless concluded that the sentence was “necessary.” The majority ratifies it as “reasonable.” I cannot agree. Therefore, I respectfully dissent.
Any discussion of the reasonableness of Brown’s sentence must begin with the sentencing guidelines that produced it, See generally United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010); United States v. Tutty, 612 F.3d 128 (2d Cir. 2010). In Dorvee, we explained that the child-pornography guidelines are “fundamentally different from most[,] and ... unless applied with great care, can lead to unreasonable sentences.” Dorvee, 616 F.3d at 184. This is because, although the guidelines are “typically developed by the Sentencing Commission using an empirical approach based on data about past sentencing practices,” the Commission “did not use this empirical approach in formulating the [guidelines for child pornography.” Id. “Instead, at the direction of Congress, the Sentencing Commission has *89amended the [guidelines under [Section] 2G2.2 several times since their introduction in 1987, each time recommending harsher penalties.” Id.
The current enhancements “routinely result in [guidelines projections near or exceeding the statutory maximum, even in run-of-the-mill cases.” Id at 186. For example, a first-time offender guilty of possessing child pornography is “likely to qualify for a sentence .rapidly approaching the statutory maximum, based solely on sentencing enhancements that are all but inherent to the crime of conviction.” Id.
In Dorvee, these enhancements resulted in a guidelines range of 20 years’ imprisonment for distribution of child pornography. Id. at 181. We held that, notwithstanding that the district court’s 20-year sentence was within the guidelines, the sentence was substantively unreasonable. Id. at 182-88.
Although Dorvee did not produce child pornography, much of the Dorvee court’s criticism of the child pornography guidelines applies to the guidelines for production offenses as well. As with the guidelines for trafficking in child pornography found in Section 2G2.2, the Sentencing Commission did not use an empirical approach to develop the production guidelines found in Section 2G2.1. Instead, the Commission has increased the base offense level and added enhancements for production offenses “usually as a result of congressional directives.” See U.S. Sentencing Comm’n, Federal Child Pornography Offenses 249 (2012) (hereinafter “2012 Commission Report”), http://www.ussc.gov/ sites/default/files/pdf/news/congressional-testimony-and-reports/sex-offense-topics/ 201212-federal-child-pornography-offenses/ FulLReport_to_Congress.pdf.
Though the enhancements for production offenses are not applied as commonly as the enhancements for possession and distribution, they are very frequently applied,1 and they quickly add up to recommended sentences at ,or. above the 30-year statutory maximum.2 Brown’s case illustrates the point. The base offense level for one of Brown’s production offenses was 32, corresponding to a guidelines range of about 10 to 13 years for a first-time offender such as Brown.3 When Brown’s three production counts are then “stacked” together under the guidelines, his base offense level for all three counts becomes 35, see U.S.S.G. § 3D1.4, corresponding to a *90guidelines range of about 14 to 18. years.4 Brown’s offense level then increased, however, by virtue of six separate sentencing enhancements. Taken together, these enhancements catapulted Brown’s guidelines range to the statutory maximum on all counts — 110 years in total.
The conduct giving rise to these enhancements cannot justify such a dramatic departure from the sentence that would have been recommended based solely on the offense itself. For example, Brown received a two-level enhancement because Jane Doe 1 was in his “custody, care, or supervisory control.” See U.S.S.G. § 2G2.1(b)(5). He received another two-level enhancement because the offense involved a “vulnerable victim,” as Jane Doe 1 was sleeping in some of the pictures. See U.S.S.G. 3A1.1(b)(1). These two enhancements alone increased Brown’s offense level to 39 and his guidelines range to 22-27 years. Thus, according to the guidelines, the fact that Brown was babysitting Jane Doe 1, and took pictures while she was sleeping, warrants an additional eight to nine years of imprisonment. Had Brown taken pictures of a stranger while she was awake, however, no additional punishment would have been imposed. It is doubtful that these distinctions can justify nearly a decade of additional imprisonment. Brown also received a four-level enhancement because Jane Doe 1 was under the age of twelve. See U.S.S.G. § 2G2.1(b)(1). To be sure, Jane Doe l’s age was relevant to the seriousness of the offense and ought to be considered in fashioning, an appropriate sentence. But the four-level enhancement, when considered with the two enhancements just. discussed, increased Brown’s offense level to 43 and thus his guidelines range to the statutory maximum of 110 years.5
Particularly because of the abnormalities of the Sentencing Guidelines covering child pornography crimes, we must be especially careful in reviewing the substantive reasonableness of sentences assigned for these offenses. A key duty in that endeavor is to “consider whether [the] factor[s] relied on by a sentencing court can bear the weight assigned to [them].” United States v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008); see also United States v. Rigas, 583 F.3d 108, 122 (2d Cir. 2009). I am particularly concerned that the district *91court in this case misunderstood the effects of Brown’s actions, and thus relied too heavily on the perceived harm to victims and the public in sentencing Brown.
To begin, the district court sentenced Brown to the same number of years for the harm he inflicted upon each of the three victims, even though the record showed serious differences among them. In the proceedings below, the district court stated:
[T]he three children here [will] worry ... for the rest of their, life, [that] those photographs are out there forever.... [You] destroyed the lives of three specific children.,.. You are the worst kind of dangerous sex offender. You’re not just one who looks at photographs obtained over the internet.... And for those reasons, there is a serious penalty to pay_
When I look at the first three counts and look at the specific children that are involved, then I have to say to myself[,] which one of 'em didn’t you abuse? And my answer to that is there isn’t none of the three that you didn’t abuse.
So when I look at the mandatory minimum on each of those children, I’m not willin’ to walk away from any of the three. And as to those three counts, it is my sentence and I hereby sentence you to 20 years on each of those three counts to be served consecutively for a total of 60 years.
App’x at 100-02 (emphases added). The district court emphasized, repeatedly, that Brown “destroyed the lives of three specific children,” who the district court said would “worry ... for the rest of them li[v]e[s]” that their “photographs are out there forever.” App’x at 100-01 (emphasis added). Although Brown abused three children, his third victim was “asleep the entire time during the production of the images and videos” and has “no knowledge of having been victimized by Brown.” PSR ¶35. There is no evidence that Brown uploaded images or videos of the third victim. Her mother refused to submit a victim impact statement because her daughter “was unaware of the abuse” and suffered “no negative impact.” PSR ¶ 51. That does not mean that Brown’s abuse of this victim should be ignored, that it could not support some part of his sentence, or that the third victim was unharmed. It does mean, however, that the district court erred ,in giving Brown the same sentence for his conduct with respect to the third victim as for his conduct with respect to the other two victims, even though the other two had suffered severe psychological damage, and thus had been harmed far more seriously.
The majority is unconcerned that the district court based a third of Brown’s 60-year sentence on his having “destroyed the li[fe]” of a victim, despite an undisputed lack of evidence that the victim’s life had been affected at all. Seeking to brush away the district court’s major oversight, the majority suggests that the third victim will perhaps later learn of the abuse, and may, at that time, be damaged as severely as the others. Majority Op. at 84. That is nothing but speculation. Defendants have a constitutional right to be sentenced based on “accurate information” rather than guesses, see, e.g., United States v. Juwa, 508 F.3d 694, 700 (2d Cir. 2007), a right that was surely violated in this case if the district court actually relied on the majority’s proposed rationale.
The district court also demonstrated its overreliance on Brown’s damage to the victims and society by declaring that he is “the worst kind of dangerous sex offender,’’.App’x at 102, and that he is “exactly like” sex offenders who rape and torture children in order to produce child pornography. App’x at 100. Although Brown’s *92offenses are serious, he clearly does not fit either of those descriptions. In discussing a thirty-year sentence for a- child pornography charge in a recent case, one of our colleagues correctly observed the following regarding the “worst offenders” charged with this type of crime:
They are people who force small children to engage in sexual and sadomasochistic acts, who photograph or video the scene, and who broadcast it to the world, leaving the children with the pain of the experience and the anguish of knowing that degenerates are gloating over their abuse and humiliation.
United States v. Broxmeyer, 699 F.3d 265, 303 (2d Cir. 2012) (Jacobs, J., dissenting). Brown did not forcibly rape his victims or subject them to physical harm. He took pictures of the genitalia of three girls, usually while they were sleeping, by moving their underwear to the side. His offense did not involve penetration, extreme violence, abduction, or trafficking.
The majority likewise spends substantial time describing, in great detail, Brown’s offense and its harm to the victims. Majority Op. at 76-77, 77-78, 79-80. The majority seems not to appreciate, however, that we are confronted here with actions far less depraved than those in many cases where defendants receive sentences decades shorter than Brown’s. See, e.g., United States v. Gilmore, 599 F.3d 160, 162 (2d Cir. 2010) (30-year sentence for defendant who repeatedly raped his eight-year old daughter for two years); United States v. Swackhammer, 400 Fed.Appx. 615, 616 (2d Cir. 2010) (summary order) (168-month sentence for defendant who repeatedly molested his children); see also United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) (determining that 30-year sentence should be imposed on one-count indictment where defendant “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,” and “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”); United States v. Castro-Valenzuela, 304 Fed.Appx. 986, 988 (3d Cir. 2008) (summary order) (220-month sentence for defendant who videotaped himself violently sexually assaulting his girlfriend’s seven-year-old niece). Moreover, Brown’s 60-year sentence was exorbitant compared to those issued to typical federal defendants convicted of production offenses. In 2010 — the most recent year for which data is available — the average sentence for production of child pornography was 267.1 months, or approximately 22 years. See 2012 Commission Report at 253. There is nó reason to think that Brown’s conduct was substantially worse than that of a typical defendant convicted under this statute.
Punishing Brown as harshly as a murderer also frustrates the goal of marginal deterrence, “that is, that the harshest sentences should be reserved for the most culpable behavior.” United States v. Newsom, 402 F.3d 780, 785-786 (7th Cir. 2005). And “[tjhose- who think that the idea of marginal deterrence should play some part in criminal sentences ... might find little room left-above [Brown’s] sentence for the child abuser who physically harms his victims, who abuses many different children, or who in other ways inflicts greater harm on his victims and society.” Id. at 785-86.
Most importantly, in my view, is the clear injustice inherent in a de facto life sentence for Brown. As the Supreme Court has recognized,
There is a line between homicide and other serious violent offenses against the individual. Serious nonhomicide crimes may be devastating in their harm[,] but in terms of moral depravity and of the *93injury to the person and to the public, they cannot be compared to murder in their severity and irrevocability. This is because life is over for the victim of the murderer, but for the victim of even a very serious nonhomicide crime, life is not over and normally is not beyond repair. Although an offense like robbery or rape is a serious crime deserving serious punishment, those crimes differ from homicide crimes in a moral sense.
Graham v. Florida, 560 U.S. 48, 69, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) (citations, alterations, and internal quotation marks omitted). Although Brown’s crimes “differ from homicide crimes in a moral sense,” he received the same sentence as a murderer. He received a sentence that “deprives [him] of the most basic liberties without giving hope for restoration.” Id. at 69-70, 130 S.Ct. 2011. It is a sentence that “means denial of hope,” that “good behavior and character improvement are immaterial,” that “whatever the future might hold in store for the mind and spirit '..., [he] will remain in prison for the rest of his days.” Id. at 70, 130 S.Ct. 2011 (alterations and internal quotation marks omitted).
Much has been written in recent years about the problem of mass incarceration. But commuting the sentences of nonviolent drug offenders will only go so far. If we are truly to confront the problem, we must take a hard look at how we punish defendants like Nathan Brown. The role of federal appellate judges in this endeavor is, to be sure, circumscribed. Still, we have a responsibility not to stand idly by ip cases when it would be “manifestly unjust to let [the] sentence stand.” Dorvee, 616 F.3d at 188. In my view, this is one of those cases. I respectfully dissent.
. In 2015, 47.1% of sentences under Section 2G2.1 involved a victim under the age of 12, 58.1% involved the commission of a sexual act or sexual contact, and 44.5% involved a victim in the custody, care, or control of the defendant. See U.S. Sentencing Comm’n, Use of Guidelines and Specific Offense Characteristics: Guideline Calculation Based, Fiscal Year 2015 44 (2015), http://www.ussc.gov/sites/ default/files/pdf/research-and-publications/ federal-sentencing-statistics/guideline-application-frequencies/2015/Use_o£_SOC_ Guideline_Based.pdf.
. Because of these enhancements, defendants convicted of child pornography offenses in federal court often • receive sentences far exceeding the maximum punishments allowed by state law. See generally 2012 Commission Report at App'x F (listing penalties for possession, receipt, distribution, and production of child pornography under state statutes). As noted, New York punishes the crime of promoting an obscene sexual performance by a child with up to seven years’ imprisonment. See id. at F-15; see also N.Y. Penal Law §§ 263.10, 70(2)(d). According to the Sentencing Commission, the range in New Jersey is 5-10 years; in California, 3-8. See 2012 Commission Report at F-2, F-14.
.The base offense level of 32 was itself imposed by Congress;.the original base offense level was 25, corresponding to a guidelines range of about 5 to 6 years for a first-time offender. See 2012 Commission Report at 249.
, Brown was also charged with two counts of possessing child pornography. Those counts did not affect Brown’s guidelines range because they "involve substantially the same harm” within the meaning of Section 3D1.2 of the guidelines and are therefore “grouped” with one of Brown’s production counts. The base offense level of the "group” is the highest offense level of the.counts in the group— here, the production count. See U.S.S.G. § 3D1.3.
. The majority believes that these enhancements are justifiable because they reflect “distinct harms,” and cites the opinion in United States v. Volpe, 224 F.3d 72, 76 (2d Cir. 2000), to support that proposition. Majority Op. at 80 n.5. In Volpe, we ruled that a police officer who sexually abused a victim inflicted additional, separate harms by doing so “under color of law,” and while the victim was in his “custody, care, or supervisory control." 224 F.3d at 76 (internal quotation marks and citations omitted). The difference between Volpe and this case is that Volpe did not involve a statute that criminalized only conduct between adults and children, Id, at 74. Where, as here, the statute applies only to conduct taken by an adult against a child, several enhancements purport to punish as "distinct harms” conduct that is all but inherent in the situations and relationships necessary to give rise to the crime. For example, it is difficult to think of a child victim who is not "vulnerable.” The fact that children are vulnerable to adults’ sexual abuse is very likely the reason that this crime carries such high guidelines recommendations even without enhancements. The enhancement for a “vulnerable victim” thus does not, in my view, punish any distinct harm.