concurring and dissenting.
I concur in Parts I and II of the court’s opinion. I dissent, however, from the court’s holding that the district court misconstrued the Guidelines in determining that the situation presented by this case was not contemplated by the Sentencing Commission.
True, it is unlikely that the Commission contemplated the exact facts of Paton’s case, but that does not compel the conclusion that the Commission did not contemplate the offense committed by Patón: the possession of child pornography. Having held that Paton’s earlier plea did not immunize him from prosecution for the possession of those now-illegal materials, what warrant do we have to hold that this case is somehow different for sentencing purposes from any other prosecution based upon the 1990 statute?
The Court has told us that a district court’s decision to depart from the Guidelines should in most eases be given substantial deference, including the decision that a particular case falls within or without the heartland of cases in the Guideline. Koon v. United States, — U.S. -,---, 116 S.Ct. 2035, 2046-48, 135 L.Ed.2d 392 (1996). See also United States v. Kalb, 105 F.3d 426, 428 (8th Cir.1997). Although the district court did not have the benefit of Koon and thus did not articulate its reasoning in precisely the formulation set forth in Koon, it in effect made “a refined assessment of the many facts bearing on the outcome,” Koon, — U.S. at-, 116 S.Ct. at 2046, and then determined that there was nothing about the case that warranted a departure from the Guidelines range. Because I see no abuse of discretion in the district court’s ruling, I would affirm the sentence as well as the conviction.