dissenting:
Defendant Autery pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) pursuant to a plea agreement. In the plea agreement, the parties agreed to a presumptive sentence of 41-51 months’ imprisonment, which was the applicable range under the U.S. Sentencing Guidelines. Notwithstanding that agreement, the district court departed downward at least 14 levels and imposed a sentence of five years’ probation. The government appeals. Because I agree with the government that the sentence is unreasonable under 18 U.S.C. § 3553(a), I respectfully dissent.1
When the Supreme Court in Gall v. United States, — U.S. -, 128 S.Ct. *879586, 169 L.Ed.2d 445 (2007), held that departures from the Sentencing Guidelines could be reviewed only for abuse of discretion, the Court did not intend to insulate district judges from “meaningful appellate review5’ of the sentences they impose. Id. at 597. Yet the majority has interpreted Gall, along with United States v. Carty, 520 F.3d 984 (9th Cir.2008) (en banc), as requiring appellate courts to adopt a posture so deferential that, so long as the district court facially applies the relevant 18 U.S.C. § 3553(a) factors, a sentence can almost never be reversed, no matter how substantively unreasonable it may be.
In this case, the district court sentenced a defendant, who showed little indication of being anything other than a run-of-the-mill child pornographer, to probation, rather than to the 41-51 months’ imprisonment that the Sentencing Guidelines indicated and which the parties agreed was appropriate — a departure of at least 14 levels. Because the district court’s reasoning in arriving at this sentence leaves me with a “definite and firm conviction that the district court committed a clear error of judgment,” United States v. Whitehead, 532 F.3d 991, 996 (9th Cir.2008) (Bybee, J., dissenting), I believe that the sentence was an abuse of discretion.
It is understandable that the majority would adopt a highly deferential standard of reviewing the substantive reasonableness of the district court’s decision, given that the Supreme Court’s opinion in Gall focused primarily on what an appellate court may not do. It may not overturn an out-of-Guidelines sentence merely because it “might reasonably have concluded that a different sentence was appropriate.” 128 S.Ct. at 597. Nor may it require district courts to follow rigid mathematical formulas or demonstrate that extraordinary circumstances exist in order to justify a sentence outside the Guidelines. Id. at 595. Missing from the majority opinion in Gall, however, is any discussion of the circumstances under which a court of appeals may reverse a district court’s sentence as substantively unreasonable. It is possible to read Gall as limiting the role of the court of appeals to ensuring that district courts follow the proper procedures in determining sentences, and that appears to be the trend of our case law. So long as the district court does not commit any procedural errors, the court of appeals should almost always defer to the district court’s familiarity with the case and greater experience in sentencing. See Whitehead, 532 F.3d at 993.
I do not believe, however, that the Court in Gall intended to require such extreme deference from courts of appeals. The Court explicitly stated that “the familiar abuse-of-discretion standard of review now applies to appellate review of sentencing decisions.” Gall, 128 S.Ct. at 594. As Justice Alito noted in his dissent in Gall, “Appellate review for abuse of discretion is not an empty formality. A decision calling for the exercise of judicial discretion ‘hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review.’ ” Id. at 607 (Alito, J., dissenting) (quoting Albemarle Paper Co. v. Moody, 422 U.S. 405, 416, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975)).
The key to a correct interpretation of Gall is to apply abuse-of-discretion review meaningfully without lapsing into the rigid formulas condemned in Gall. In two recent dissents, judges of this court have suggested that we apply a standard that has often been used in other abuse-of-discretion contexts; they would reverse a sentence where “ ‘we have a definite and firm conviction that the district court committed a clear error of judgment’ in imposing a particular sentence.” United States v. Ruff, 535 F.3d 999, 1005 (9th Cir.2008) *880(Gould., J., dissenting) (quoting SEC v. Coldicutt, 258 F.3d 939, 941 (9th Cir. 2001)); accord Whitehead, 532 F.3d at 996 (Bybee, J., dissenting). The Eleventh Circuit has adopted this standard in reviewing sentences for substantive reasonableness. See, e.g., United States v. Pugh, 515 F.3d 1179, 1191 (11th Cir.2008). The “definite and firm conviction” standard distinguishes an abuse of discretion from a mere difference of opinion. Abuse of discretion as now applied in this circuit to the substantive review of sentences for reasonableness is nothing more than a standard-less and empty formalism — it comes close to no appellate review at all.
Applying the correct standard, I conclude that the district court abused its discretion by sentencing Autery to probation. The factors cited by the district court do not support its conclusion that Autery was uniquely situated for someone convicted of his offense.2 It is true that he had apparently begun seeking child pornography relatively recently before his arrest, and there is no evidence that he ever attempted to molest a child. But both of those factors have already been taken into account in calculating the appropriate offense level under the Guidelines. His lack of criminal history placed him in Category 1. rather than a higher category. Likewise, if he had had sexual contact with a minor, his base offense level would have been increased beyond level 22. Nor is there anything about the other circumstances related to Autery’s crime that makes him appear significantly less culpable than a typical child pornographer.
The district court found that Autery did not possess child pornography featuring depictions of actual minors. This finding, however, does not withstand scrutiny. First, Autery certainly attempted to purchase child pornography featuring depictions of actual minors. He solicited a person he believed to be a mother of two young girls to produce sexually explicit videos featuring her children.3 Fortunately, the woman was an undercover agent, and no children were sexually abused for Autery’s gratification. Moreover, Autery pled guilty to Count 3 of the indictment, which charged that “defendant herein did knowingly possess images containing child pornography ... which contained visual depictions of actual minors engaged in sexually explicit conduct....” (Emphasis added.) This finding is clearly erroneous and cannot supply any basis for the reasonableness of the sentence.
The district court made other puzzling findings which find no support in the record. It found that Autery did “not fit the profile of a pedophile.” But nothing in the record — including the presentence investigation report4 — tells us what the “profile” that the district court relied on is, or why it was relevant to sentencing. After all, Autery was convicted of possession .of child pornography, a crime which does not include as an element that the offender “fit the profile of a pedophile.”5 Yet, the dis*881trict court seemed to believe that a child pornographer who did not “fit the profile of a pedophile” was undeserving of a prison sentence.
The district court also found that “Defendant needs outpatient psychiatric monitoring and management, and cannot be accommodated adequately in a federal institution. ...” This finding is either startlingly blunt or clearly erroneous. First, it is unexplained, except that the court concluded that Autery needed “outpatient psychiatric monitoring and management.” But why such outpatient treatment cannot be provided within the federal prison system is unarticulated. Viewed from a certain perspective, it may be true that, as the district court found, Autery “cannot be accommodated adequately in a federal institution.” But if it is true of Autery’s circumstance, then surely it is equally true for thousands of other federal prisoners. We are, indeed, starting down a slippery slope when we accept the inadequacy of the federal prison system as justifying the reasonableness of a downward departure that results in no prison time for an offense which would merit a prison sentence of three and a half years under the Guidelines. These “findings” also do not support the reasonableness of Autery’s sentence.
The majority does not seriously attempt to justify the district court’s reasoning. The majority correctly points out that it was not entirely redundant for the district court to reduce the defendant’s sentence for his lack of a criminal history when that was already taken into account in his criminal history Category I. A Category I offender may have a limited prior history, rather than no history at all. Maj. Op. at 874. But the majority does not explain how this relatively minor distinction could reasonably be relied on as a meaningful difference in arriving at a 14 level departure. Neither does the majority explain how the district court could have been correct that a sentence of probation for solicitation of child pornography provides just punishment or reflects the seriousness of the offense. The most the majority can say on this point is that “reasonable minds can differ.” Maj. Op. at 875. And the majority accepts that it is beyond the role of this court to question the district court’s conclusion that the defendant was qualitatively different from other offenders, no matter how flimsy the evidence or the district court’s reasoning were. Thus, the majority believes it has no basis to question the district court’s belief that Autery’s extremely low sentence does not represent an unwarranted sentencing disparity between Autery and other similar offenders. Maj. Op. at 876-77.
While the district court followed the proper procedures and explained its reasoning for departing downward from the Guidelines, review for abuse of discretion should be more than simply policing the district courts for proper procedure. In this case, the sentence cannot withstand such review. The court in Gall clearly suggested that a more serious level of review was required, even as it rejected the use of strict mathematical proportionality: “In reviewing the reasonableness of a sentence outside the Guidelines range, appellate courts may ... take the degree of variance into account and consider the extent of a deviation from the Guidelines.” 128 S.Ct. at 595; accord Carty, 520 F.3d at 993. The district court’s justifications in this case may not be entirely implausible, but neither are they at all convincing in explaining such a radical departure from the Guidelines. The district court did not merely assign a sentence from a range of *882reasonable choices, it deviated below any range of reasonableness and, in doing so, seriously erred.
The ordinariness of Autery as a defendant, and the inappropriateness of the district court’s imposition of a probationary sentence, is particularly pronounced in comparison with the circumstances of the defendant in Gall. Brian Gall participated in a conspiracy to sell ecstasy while attending college in Iowa. 128 S.Ct. at 591-92. He voluntarily withdrew from the conspiracy after seven months and moved to Arizona, where he lived as a law-abiding citizen. Id. at 592. When his role in the drug ring was discovered by law enforcement, he confessed his involvement and cooperated fully with the authorities. Id. While he was in Iowa on bail during the time his case was pending, he started his own construction business. Id. Reasonable minds might differ as to the proper sentence for Gall, but he provided strong evidence that he had self-rehabilitated and was no longer a threat to commit more crimes. There were clear reasons to support the district court’s decision that Gall differed from other defendants convicted of similar crimes and that probation was more appropriate than a within-Guidelines sentence of 30-37 months.
Here, the district court followed the proper procedures, but the sentence it reached, unlike in Gall, is simply not supported by the record. A meaningful abuse-of-discretion review can overturn a sentence in a case like this and maintain some sense of uniformity in sentencing while still allowing district courts to sentence defendants such as Gall to sentences substantially lower than suggested by the Guidelines.
Because I am firmly convinced that the district court committed a clear error in judgment in sentencing Autery, I would vacate the sentence as unreasonable and remand the case to the district court for resentencing.
. I agree with the majority on the applicable standard of review — that the substantive reasonableness of sentences should be reviewed for abuse of discretion rather than clear error, even when the appellant fails to object to the reasonableness of the sentence. I therefore concur in that portion of the majority opinion.
. I do not mean to suggest that a defendant must be unique or extraordinary in order to merit a below-Guidelines sentence. I refer to uniqueness here because the district court justified its sentence on the basis that Autery was unique for a child pornographer.
. Although the majority takes issue with my characterization of Autery as a "child pornographer,” Maj. op. at 877 n. 8, it is a fair characterization of one who solicits the production of made-to-order child pornography.
. The Probation Officer could not identify any factor that would warrant departure from the advisory Guidelines range.
. Presumably, if Autery "fit the profile of a pedophile,” it would be reflected either in his criminal history or his relevant conduct under *881U.S.S.G. § 1B1.3, which would increase his offense level.