concurring:
I write separately to point out two features of Aaron Thompson’s Presentence Report that could have been considered by the district court as favoring downward departure, as well as to suggest that district court downward departures in similar cases involving child pornography have become so frequent as to indicate a pattern that may merit consideration by the Sentencing Commission.
1. Thompson’s Presentence Report contained a list of “factors that may warrant departure.” One encompassed the “heartland” factors that we find the district judge improperly applied. I agree with this holding. While “the Sentencing Guidelines do not displace the traditional role of a district judge in bringing compassion and common sense to the sentencing process” so that “in areas where the Sentencing Commission has not spoken — areas outside the heartland cases considered in the Guidelines — district courts should not hesitate to use their discretion in devising sentences that provide individualized justice ... they [must] give reasons for their departure that allow us to ensure that the departure was permissible under the law.” United States v. Williams, 65 F.3d 301, 309-10 (2d Cir.1995) (internal quotation marks and citation omitted, emphasis added).
Aside from the general “heartland” factor, Thompson’s probation officer also suggested that his post-offense rehabilitation and his impaired volition to control an addiction to child pornography were potential factors warranting departure. The district court failed to consider these possible grounds for downward departure.
Post-offense rehabilitation — as distinguished from post-sentencing rehabilitation1 — can be a basis for downward depar*1078ture. In United States v. Green, 152 F.3d 1202, 1207 (9th Cir.1998), we noted that “[s]everal circuits have already determined that post-offense rehabilitation may be a basis for departure” and indicated accord with that group. See also United States v. Kapitzke, 130 F.3d 820, 823 (8th Cir.1997) (“Because the acceptance of responsibility guideline takes postoffense rehabilitation efforts into account, departure under section 5K2.0 is warranted only if the defendant’s efforts are exceptional enough to be atypical of cases in which the acceptance of responsibility reduction is usually granted.”).
Á relevant consideration under the rubric of post-offense rehabilitation is continuity of needed treatment. Thompson was characterized in expert testimony as having responded to post-offense rehabilitation and as being well-suited to immediate continuation of treatment.2 In discussing Thompson’s future treatment, the district judge expressed concern that “although [Thompson does] qualify under [the federal prison system’s] initial criteria, and I’m sure will qualify, they’re not going' to put [him] in [a sex offender treatment] program until [his] sentence approaches the point where most" efficient use of the treatment will be available.” Thus, a longer sentence for an inmate like Thompson interrupts' his post-offense rehabilitation and delays needed treatment.
The district judge indicated that the only federal facility with a diagnosis and treatment program for pedophilia is in Butner, North Carolina. Cf. United States v. Malley, 307 F.3d 1032, 1033 (9th Cir.2002) (“The court specifically requested that the Bureau of Prisons assign Malley to the sex offender treatment program at Butner Federal Correctional Institution.”); see also 18 U.S.C. § 3553(a)(2) (2002) (directing sentencing courts to consider, inter alia, providing “the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”). See generally Williams, 65 F.3d at 306, 308 (upholding a “heartland” downward departure reducing a sentence from at least 130 months to 60 months because it provided the prisoner, an “excellent candidate for rehabilitation,” with immediate eligibility for a treatment program; otherwise he would have had to “wait some six or seven years to begin treatment. If in the interim the Butner program were terminated for budgetary or other .reasons or if Williams’s resolve weakened under the pressures of prison life, the chance of curing him of his addiction and perhaps his criminal ways would vanish.... [I]f [on the other hand] Williams is cured of his addiction [the shorter sentence] may ultimately serve to protect the public from future criminal acts that Williams might otherwise commit.”). On remand, the district court, in my view, has the discretion to consider Thompson’s actual post-offense efforts at rehabilitation — as opposed to his potential *1079for rehabilitation — as a basis for downward departure, if sufficiently exceptional.
The district court also failed explicitly to address the Presentence Report’s reference to diminished capacity under U.S.S.G. § 5K2.13. Cf. Malley, 307 F.3d at 1033 (in which the same district court “granted a five-level downward departure for diminished capacity under § 5K2.13 and extraordinary acceptance of responsibility”). Thompson’s Presentence Report cited United States v. McBroom, 124 F.3d 533 (3d Cir.1997), in which the Third Circuit considered an addiction to child pornography. McBroom emphasized that “McBroom is not seeking a downward departure because he was a victim of sexual abuse. Rather, McBroom claims that at the time of the offense, he suffered from a significantly reduced mental capacity. McBroom points to his childhood merely to explain why his mental capacity was reduced to the point where he felt compelled to possess child pornography.” Id. at 551.
In 1998, the Sentencing Commission added an application note defining the term “significantly reduced mental capacity” in Guideline § 5K2.13: “ ‘Significantly reduced mental capacity’ means the defendant, although convicted, has a significantly impaired ability to (A) understand the wrongfulness of the behavior comprising the offense or to exercise the power of reason; or (B) control behavior that the defendant knows is wrongful.” U.S.S.G. § 5K2.13, cmt. n. 1 (2002) (emphasis added). The Commission explicated its definition as follows:
The amendment ... defines “significantly reduced mental capacity” in accord with the decision in United States v. McBroom, 124 F.3d 533 (3d Cir.1997). The McBroom court concluded that “significantly reduced mental capacity” included both cognitive impairments (i.e., an inability to understand the wrongfulness of the conduct or to exercise the power of reason) and volitional impairments (ie., an inability to control behavior that the person knows is wrongful). The application note specifically includes both types of impairments in the definition of “significantly reduced mental capacity.”
U.S. Sentencing Guidelines Manual app. C, amendment 583 (2002). See United States v. Sadolsky, 234 F.3d 938, 942 (6th Cir.2000) (“the amendment to § 5K2.13 expanded the definition of [‘significantly reduced mental capacity’] to include volitional impairments.”); see also United States v. Silleg, 311 F.3d 557, 563-64 (2d Cir.2002) (“In light of the plain language of the Sentencing Guidelines and the views of most other circuits to consider the issue, we hold that the diminished capacity of a defendant in a child pornography case may form the basis for a downward departure where the requirements of section 5K2.13 are satisfied.”).
There is evidence in the record that Thompson tried on multiple occasions to erase all his computer files containing child pornography but was drawn back in an addictive manner. Expert testimony at sentencing suggested that Thompson had an addiction to the material for which he was convicted. On remand it is open to the district court to consider, consistent with the Sentencing Commission’s directives, whether Thompson qualifies for a downward departure based on Guideline § 5K2.13, as illuminated by McBroom.
2. Turning to the wider context of this appeal, it bears noting that Koon v. United States, 518 U.S. 81, 98-99, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996) emphasized the role of district courts as front-line sentencing decisionmakers. District courts have, Koon noted, “an institutional advantage over appellate courts in making[departure] determinations, especially as they see so many more Guidelines cases than appellate *1080courts do,” and for that reason are an “important source of information” for the Sentencing Commission. Id. (internal quotation marks and citation omitted). Koon quoted from the Introduction to the Guidelines, which emphasizes that
The Commission is a permanent body, empowered by law to write and rewrite guidelines, with progressive changes, over many years. By monitoring when courts depart from the guidelines and by analyzing their stated reasons for doing so and court decisions with references thereto, the Commission, over time, will be able to refíne the guidelines to specify more precisely when departures should and should not be permitted.
Id. at 93-94, 116 S.Ct. 2035 (quoting U.S.S.G. ch. 1, pt. A, introductory cmt/ 4(b)). The Court then went on to quote with approval from the following passage written by then-Chief Judge Breyer in United States v. Rivera, 994 F.2d 942, 951 (1st Cir.1993):
To ignore the district court’s special competence — about the “ordinariness” or “unusualness” of a particular case— would risk depriving the Sentencing Commission of an important source of information, namely, the reactions of the trial judge to the fact-specific circumstances of the case, which reactions, reduced to written reasons for departure, can help the Commission determine whether, and how, Guidelines revision should take place.
(Emphasis added).
The district judge in this case did not act anomalously in departing downward when sentencing a first offender (Criminal History Category I) in a child pornography case. In the last six years, considering published opinions alone, ten cases from seven different Circuits have resulted in appellate reversal of district judges’ decisions to depart downward in first-offender child pornography convictions. See United States v. Goldberg, 295 F.3d 1133 (10th Cir.2002); United States v. Grosenheider, 200 F.3d 321 (5th Cir.2000); United States v. Davis, 204 F.3d 1064 (11th Cir.1999); United States v. Stevens, 197 F.3d 1263 (9th Cir.1999); United States v. Drew, 131 F.3d 1269 (8th Cir.1997); Kapitzke, 130 F.3d 820; United States v. Everett, 129 F.3d 1222 (11th Cir.1997); United States v. Wind, 128 F.3d 1276 (8th Cir.1997); United States v. Goossens, 84 F.3d 697 (4th Cir.1996); United States v. Barton, 76 F.3d 499 (2d Cir.1996). See also United States v. DeCosta, 37 F.3d 5, 9 (1st Cir.1994) (“Child pornography is not a victimless crime, but for DeCosta and his family this is surely a very sad affair. We commend the district court for its multiple efforts to find a solution best suited to the circumstances.”); United States v. Deane, 914 F.2d 11 (1st Cir.1990); United States v. Studley, 907 F.2d 254 (1st Cir.1990); Edward R. Becker, Flexibility and Discretion Available to the Sentencing Judge Under the Guidelines Regime, Fed. Prob., Dec. 1991, at 12 (describing an earlier dialogue between federal judges and the Sentencing Commission on child pornography sentencing). The downward departures that were reversed in these cases, added to that which we reverse for Thompson, are precisely the “reactions of ... trial judge[s] to ... fact-specific circumstances, which ... reduced to written reasons for departure, can help the Commission determine whether, and how, Guidelines revision should take place.” Rivera, 994 F.2d at 951. One relevant circumstance the Commission may particularly wish to consider is the delay in sex offender treatment in the federal prison system — specifically at its Butner, North Carolina facility — resulting from lengthy sentences.
*1081With these comments I concur in the opinion.
. U.S.S.G. § 5K2.19 precludes downward departure for post-sentencing rehabilitative efforts. The reasons for the Sentencing Commission's amendment to this effect in 2000 *1078were that such departures are inconsistent with statutory provisions applying to "imprisoned person[s]” and would "inequitably benefit only those who gain the opportunity to be resentenced de novo.” U.S.S.G. § 5K2.19 cmt. background (2002). Consideration by district courts of post-offense, pre-sentencing rehabilitation as a factor for downward departure does not, by contrast, concern persons serving a term of imprisonment or introduce comparably inequitable results among convicted individuals.
. The expert who conducted Thompson's post-offense rehabilitation stated that he had taken treatment "very seriously. He’s participating well in group and in individual [settings]. His insight is growing. His empathy ... is growing also." She expressed concern about potential interruption of this post-offense rehabilitation in the prison system: "[I]f [offenders like Thompson] have a long period of time that they wait [for treatment], sometimes ... they become hardened, and it’s harder to reach them.”