concurring and dissenting:
I concur in affirming Cherer’s conviction. I dissent as to his sentencing.
Gall v. United States, — U.S. -, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Kimbrough v. United States, — U.S. -, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), have clarified certain uncertainties and in doing so made crystal clear the role of the Sentencing Guidelines and the respect owed them.
The Guidelines are the starting point for the district judge deciding on a sentence. Gall, 128 S.Ct. at 596; Kimbrough, 128 S.Ct. at 574. The Guidelines are a benchmark for the sentencing judge. Id. The Guidelines must be taken into account.
At the same time, the Guidelines are completely advisory, not mandatory. Gall, 128 S.Ct. at 594; Kimbrough, 128 S.Ct. at 564, 569. The district judge should not presume that their range is reasonable. Gall, 128 S.Ct. at 596-97. For the sentencing judge, the Guidelines are only one factor to be considered in weighing whether a sentence will achieve the goals set by 18 U.S.C. § 3553(a)(2). Kimbrough, 128 S.Ct. at 564. The sentence is to be “individualized.” Gall, 128 S.Ct. at 597.
These clarifications are comprehensive. More particularly, Kimbrough holds that the district judge in that case was right to take into account the disparity in sentences involving crack cocaine and those involving powder cocaine and by such comparison to determine that the Guidelines on crack were not reasonable. Kimbrough, 128 S.Ct. at 564. By analogy, this kind of comparison of sentences may be *1162applied in other cases where the reasonableness of the sentence is at issue.
On review of the sentence, the principal question is its reasonableness. Id. The reviewing court will reverse only for abuse of discretion, not for disagreement with the district court’s considered conclusion. Gall, 128 S.Ct. at 597. The reviewing court may but need not consider the Guidelines range reasonable. Id.
Apart from these holdings as to the place of the Guidelines, Gall and Kim-brough are instructive on the procedural steps that the sentencing judge must take. After giving both parties an opportunity to argue for whatever sentence they deem appropriate, the district judge should then consider all of the § 3553(a) factors to determine whether they support the sentence requested by a party. Id. at 596. In so doing, he may not presume that the Guidelines range is reasonable. Id. at 596-97. He must make an individualized assessment based on the facts presented. Id. at 597.
To turn to the case at hand, Cherer was convicted of the crime of attempting to seduce a minor on the internet. Although the statute under which he was convicted enumerates “coercion” among the acts prohibited by it, no coercion by Cherer was shown. His crime was committed by words in the imaginary world of a chat room.
The district court in the sentencing gave counsel and the defendant opportunity to address the court on the sentence. The district court stated that the Sentencing Guidelines were advisory. The district court stated that the court’s purpose in sentencing was to achieve the purposes of 18 U.S.C. § 3553(a)(2). On the face of the proceedings, they conformed to the law. They, however, did not.
Tension may seem to exist between the table of points provided by the Guidelines and an individualized sentence. If a sentence is to be “individualized,” see Gall, 128 S.Ct. at 597, the sentence is to be shaped to the specific details of the offense of conviction and the specific characteristics of the defendant. The defendant is not a convenient abstraction such as “a pedophile” but a human being who cannot be so summarily categorized. It may take the sentencing judge effort and empathy to address the person before him. The judge has no choice if he is to follow the law.
In two respects, the sentencing court did not do what the law required. First, it did not consider at all that Cherer responded to a temptation set up by the government and that his response to the temptation was ineffective. Of course, Cherer was not entrapped in a legal sense: he was ready and willing to commit the crime. Of course, the law permits an attempt to be punished as severely as a completed crime. Nonetheless, in weighing the sentence, it would be unreasonable for the sentencing court not to take some account of these facts.
In sentencing Cherer, the district court declared its indifference to state sentences for the same offense and, in particular, its indifference to what Cherer’s state crime consisted of or why the state court had sentenced him to probation for it. That he was a violator of probation was enough for the court. But Cherer’s federal sentence was increased not for violation of probation but because he was categorized as a sex offender under state law. The state crime increased his score on the Guidelines’ chart by eight and so materially increased the range of the federal sentence when that chart was the judge’s guide.
The Sentencing Commission collects statistics on sentencing in the federal courts. It collects all cases involving sexual offenses whether they involved rape, sex with a minor or solicitation of a minor. *1163The rationale of this grouping must be that there are few sexual offenses that are federally prosecuted. In 2006, there were, nationally, 256; in this circuit, there were 61. United States Sentencing Commission, Office of Policy Analysis, 2006 Dataf-ile. The paucity of prosecution (which characterizes earlier years, too) is accounted for by the limited number of places under federal jurisdiction where sex crimes could occur. The number has increased only with the arrival of the internet and federal prosecutions for its use.
That means that it is the states and the state courts that have substantial experience in dealing with sex offenses. Depending on the case, what was done in a state proceeding will be relevant to the reasonableness of the federal sentence. The sentencing court here needed to know what Cherer had done and why the state court had put him on probation. Without this information, the addition of eight points to Cherer’s point score was an act that could have been performed by a machine; it was not a judicial assessment of the individual before the court.
The eight point enhancement, plus two points for his use of a computer, gave Cherer a point score of 34. Rape within federal jurisdiction would yield a score of 30 and a sentence range of 8-17.5 years. Cherer was sentenced to just under twenty-five years. Sentencing Guidelines or application of them are not rational if they yield a sentence for Cherer’s crime greater than that for rape. To take a concrete example that I am familiar with, in United States v. James, 980 F.2d 1314 (9th Cir.1992), the defendant in the early morning entered the home of the victim and raped her; the sanctity of the home and the chastity of the victim were both violently violated. The defendant’s sentence was seven years and three months’ imprisonment and supervised release for five years. It is difficult for me to believe that Cherer’s clumsy effort to obtain forbidden sex was over three times more heinous than that of James.
The observation may be made that the Guidelines provide sentencing ranges for several nonviolent crimes that are greater than its ranges for violent crimes. Two answers may be offered. One, the comparison in Cherer’s case is made between punishments within the general category of sex offense. Second, the Guidelines may be unreasonable in other instances, but to determine that is not our business here.
Specifically in this case the district court erred in not looking at the circumstances of the crime and in not taking into account the nature of the offense for which Cherer was on probation.
A majority of the judges appear to agree that Cherer’s sentence was “unduly harsh.” But the court finds the sentence not “unreasonable.” That is such a fine distinction as not to be readily comprehensible.
The trial judge is “always in a superior position” to know the facts. Gall, 128 S.Ct. at 598. That position does not make presumptively reasonable the sentence he gives. The trial judge will normally be able to follow the procedural rules. That, too, doesn’t make his sentence presumptively reasonable.
It is the obligation of this court to review a sentence for “substantive reasonableness.” Id. How is such reasonableness determined? One way is by comparing sentences of crimes falling in roughly the same generic area. Kimbrough is exemplary not exclusive in showing how such comparison works.
Dissenting from the survival of the Guidelines in United States v. Booker, 543 U.S. 220, 312, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Justice Scalia observed:
*1164At the other extreme, a court of appeals might handle the new workload by approving virtually any sentence within the statutory range that the sentencing court imposes, so long as the district judge goes through the appropriate formalities, such as expressing his consideration of and disagreement with the Guidelines sentence.
If such becomes the course of review in the court of appeals, we will have abandoned all attempt to determine “substantive reasonableness.” Gall, 128 S.Ct.' at 597. I would reverse and remand.