concurring in part and dissenting in part:
I concur in the majority’s conclusion that the district court acted within its discretion in determining that Defendant’s offense conduct lay outside the heartland. I dissent, however, from the holding that the district court properly departed based on Defendant’s susceptibility to abuse in prison.
By condoning the district court’s consideration of the nature of the offense in deciding to depart downward, the majority distorts the nature of the Guidelines and joins the wrong side of a circuit split. The majority’s message is that if society so roundly condemns a particular crime that even other criminals are especially appalled by it, the “average Joe” who perpetrates the crime should spend less than the average time in prison for that crime. I am unable to join in an opinion sending such a message. In my view, the district court erred.
The majority and I begin with the same initial premise: A defendant’s extraordinary and peculiar susceptibility to abuse by other inmates while in prison may warrant a departure. Koon v. United States, 518 U.S. 81, 112, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Lara, 905 F.2d 599, 603 (2d Cir.1990). For example, in Koon, the defendants were particularly vulnerable because of their status as police officers who had beaten Rodney King. 518 U.S. at 89, 116 S.Ct. 2035. “The extraordinary notoriety and national media coverage of this case, coupled with the defendants’ status as police officers, make Koon and Powell unusually susceptible to prison abuse.” Id. at 112, 116 S.Ct. 2035. The Court affirmed the district court’s downward departure on that ground.
The majority and I differ on how that premise applies to a case like this one. Here, the district court found that Defendant, “like the officers in Koon,” was susceptible to abuse in prison because of a “combination” of factors: Defendant’s “stature, ... demeanor, ... [and] naivete,” plus the “nature of the offense.” The record does not support a finding of unusual susceptibility based on those factors.
1. Demeanor, Stature, and Naivete
The district court did not explain what it meant by Defendant’s “demeanor” and “stature.” The majority finds some ambiguity in the reference to “stature”1 and speculates that the reference “may have been related to the way [Defendant] carried himself’ or that “[p]erhaps the judge thought” that Defendant “looked physically weak.” Majority op. at 12. Even if that is what the district court meant, such *1034a departure is based on Defendant’s physical, mental, or emotional condition. The Guidelines specifically discourage departing on those grounds. In U.S.S.G. §§ 5H1.3 and 5H1.4, the Guidelines caution that a defendant’s physical, mental, or emotional condition is “not ordinarily relevant” in deciding whether to depart. This discouragement does not mean that a departure is wholly impermissible. Rather, the district court still may depart based on a defendant’s physical, mental, or emotional condition if the condition is extraordinary. Other circuits have confirmed that departures based on susceptibility to abuse in prison due to physical size or demeanor are appropriate, but only in extraordinary cases. Compare United States v. Drew, 131 F.3d 1269, 1271 (8th Cir.1997) (noting a child pornography offender’s “average size and good health” in reversing a downward departure for susceptibility to abuse in prison), with Lara, 905 F.2d at 603 (affirming a downward departure for extraordinary susceptibility to abuse in prison because of the offender’s diminutive size, immature appearance, and bisexual orientation).
Here, the record does not support a departure based on Defendant’s physical, mental, or emotional state. Defendant is 34 years old and in good physical health. He stands 5 feet 11 inches tall2 and weighs 190 pounds. Apart from his pedophilia that led to the crime of conviction and his reaction to the criminal proceeding itself, Defendant’s mental health also is good. Defendant does not abuse substances. He graduated from high school, attended some college, served in the Air Force (from which he received an honorable discharge), and has a record of full-time employment at which he earned up to $31,700 per year. The majority emphasizes (majority op. at 12-13) the testimony that Defendant’s “overall demeanor” is “positive and caring.” Fortunately, however, those are not extraordinary characteristics. On this record, Defendant’s “stature” and “demeanor” do not render his case so extraordinary as to warrant a departure on this ground.
The district court’s reliance on Defendant’s “naivete” appears to refer to Defendant’s unfamiliarity with the criminal justice system — what his own expert witness, Dr. Scolatti, referred to as “his lack of experience with the criminals.”3 The majority concedes that the Guidelines necessarily have taken into account already a defendant’s experience — or lack thereof— in prior criminal proceedings. Majority Op. at 13. The Sentencing Commission formulated six criminal history categories precisely to classify defendants based on their differing degrees of criminal experience, whether they be “naive” first offenders or hardened career criminals. An offender like Defendant, who is classified in Criminal History Category I, already receives a lesser sentence than a similar offender with a more extensive criminal history. U.S.S.G. ch. 5, pt. A. When the *1035Guidelines already consider a particular factor, a departure is warranted only in extraordinary circumstances. Koon, 518 U.S. at 95, 116 S.Ct. 2035.
The record does not support a finding of extraordinary naivete. Rather, the record reflects exactly the kind of naivete that would be expected of an offender with Defendant’s criminal history. Describing Defendant’s “lack of experience with the criminals,” Dr. Scolatti stated: “[H]e’s led a pretty normal, average Joe life; he hasn’t been involved in crime, he hasn’t been involved in drugs, he hasn’t been involved in your typical anti-social personality. He’s been a very law-abiding citizen — aside from this.” This kind of “naivete” — the “average Joe[’s]” absence of a prior criminal history and corresponding lack of experience with criminals — is accounted for fully in the criminal history guidelines.
The record offers no other justification for a departure based on Defendant’s naivete. When the district court asked Dr. Scolatti whether Defendant’s risk of harm inside the prison — “given his characteristics” — would be “different than the ordinary person involved in sex offenses with children,” the answer was:
[N] o, they all come in with a bad label, and it’s a difficult time for all of them. And we certainly have a wide range of guys, from very tough convicts to average people.
(Emphasis added.) In the circumstances, the district court erred in departing for susceptibility to abuse in prison based on naivete. See Drew, 131 F.3d at 1271 (holding, in a child pornography case, that the district court abused its discretion by departing for susceptibility to abuse in prison based in part on the defendant’s “naivete” when the defendant was “of average size and in good health”).
2. Nature of the Offense
The Guidelines do not address whether the nature of the offense, possession of child pornography, is an encouraged or discouraged factor on which to base a departure. However, our sister circuits that have considered this precise issue have held uniformly that the nature of the offense alone cannot support a departure. United States v. DeBeir, 186 F.3d 561, 567-68 (4th Cir.1999); United States v. Wilke, 156 F.3d 749, 753-54 (7th Cir.1998); United States v. Kapitzke, 130 F.3d 820, 822 (8th Cir.1997). I find their reasoning persuasive because, by definition, the nature of the offense necessarily is taken into account in establishing the Guideline for the offense; indeed, it is the essence of having a Guideline in the first place.
The district court noted that sex offenders, especially sex offenders who target children, are routinely subjected to abuse in prison. That may be so.4 However, the nature of the offense cannot take a case out of the heartland for that very offense. It would be contradictory to hold otherwise. The Commission has drafted a Guideline for possessing child pornography. The “nature of the offense” is the same for all offenders sentenced under that Guideline. Granting a departure based on “mere membership” in the class of people who possess child pornography improperly adjusts the Guideline for all class members. Kapitzke, 130 F.3d at 822. If the nature of the offense of possessing child pornography alone could constitute a factor warranting departure, effectively there would be no Guideline.
DeBeir, 186 F.3d at 568; see also Wilke, 156 F.3d at 754 (holding that to allow a *1036departure on the “nature of the offense” alone would “eviscerate the recommended range for this crime and undermine the goals of the Sentencing Reform Act”).
I thus would join our sister circuits in holding that a district court may not depart downward based solely on its conclusion that the nature of the offense is likely to subject the defendant to abuse while in prison and, to this extent, again agree with the majority. Majority op. at 1031-32. But, I would go further than the majority and hold that the nature of the offense may not be considered at all in examining the nature of the offender, such as the factors that may make a particular offender extraordinarily vulnerable. Compare Wilke, 156 F.3d at 753-54 (rejecting categorically consideration of the nature of the offense as a ground for departure in any case), with DeBeir, 186 F.3d at 567, and Kapitzke, 130 F.3d at 822-23 (rejecting consideration of the nature of the offense as a ground for departure in particular cases in which no other factor made the defendant extraordinarily vulnerable). See also U.S.S.G. § 5K2.0 (policy statement) (describing departure factors as “offense” or “offender” characteristics).
In this case, the result should be the same whether or not the “nature of the offense” is part of the calculation. Even if the nature of the offense is considered, the combination of factors does not warrant a departure for extraordinary susceptibility to abuse while in prison. Defendant’s is not that “extremely rare” situation contemplated by the Guidelines in which a combination of singularly benign factors creates a collective record warranting departure. U.S.S.G. § 5K2.0 (commentary).
3. Conclusion
In summary, the district court erred when it based a downward departure in part on Defendant’s susceptibility to abuse in prison. Although I find no abuse of discretion in the district court’s conclusion that Defendant’s conduct was outside the heartland of the offense, the district court erred in relying on Defendant’s susceptibility to abuse in prison to support its downward departure. Because I cannot tell from the record whether the district court would have departed downward or, if so, whether it would have departed to the same extent had the court considered only the offense conduct, I would vacate and remand for resentencing. I therefore dissent.
. “Stature” means, in a physical sense, "natural height” while in a standing position. Webster's Third New Int'l Dictionary 2230 (unabridged ed.1993). Defendant is 5 feet 11 inches tall, which is unremarkable.
“Stature” also can mean one's standing in the community. Id. The only mention of "stature” in the testimony was Dr. Scolat-ti’s statement that a pedophile with Defendant's "stature, his lack of experience with the criminals,” would be "a prime candidate to experience a lot of grief.” If Dr. Scolatti and the district court used "stature” in the social sense, they must have been referring to his "average Joe,” normal, middle-class life in the community— which (according to Dr. Scolatti) differentiates him from some of the "tough convicts” in prison but, of course, does not differentiate him from most citizens. Whether "stature” refers to physical or social characteristics, Defendant is unremarkable.
. The majority speculates: "Perhaps the judge thought Parish looked smaller than the probation officer thought he looked.” Majority op. at 1031. Defendant’s actual height is an undisputed fact, so it is irrelevant whether the district court and the probation officer had different thoughts about how tall he looked to them.
. The majority speculates that "naivete” could refer to Defendant's lack of sophistication regarding computers. Majority op. at 1031. Assuming that this is what the district court meant, and assuming that Defendant's failure to download the images pertains to offender as well as offense characteristics, there is no logical nexus to susceptibility to abuse in prison. No witness suggested, nor does logic or common experience suggest, that the absence of sophisticated computer skills plus a criminal's assumption that he would not get caught bear on susceptibility to abuse in prison.
. As noted, Dr. Scolatti testified that child-pornography offenders “all come in with a bad label, and it's a difficult time for all of them.” (Emphasis added.)