Kemmish

Opinion by Judge LEAVY; Partial Concurrence and Partial Dissent by Judge FERGUSON.

The government appeals from the sentence imposed on a child pornographer following the defendant’s entry of a guilty plea to all six counts of a second superseding indictment, arguing that the case should be remanded for resentencing. The defendant has cross-appealed, arguing that the district court erred by denying his motion to suppress. We affirm the denial of the motion to suppress, but vacate the sentence and remand for resentencing.

FACTS AND PRIOR PROCEEDINGS

On June 29, 1994, U.S. Customs agents arrested James Leroy Kemmish at the San Diego International Airport after he attempted to smuggle into the United States child pornography videotapes and more than $16,-000 in unreported American currency. An examination of Kemmish’s luggage revealed mailing lists, advertisements, and notices for Overseas Male (“OSM”), a Mexico City-based producer of child pornography. Armed with a search warrant, law enforcement officers went to Kemmish’s residence the following day. There they found sophisticated video reproduction equipment and several hundred blank videotapes; 204 master videotapes and 332…

concurring in part and dissenting in part:

I concur in the majority opinion except with regard to section II. B., “Pattern of Sexual Exploitation.” I disagree with the majority’s analysis of that issue because as the sole U.S. distributor of OSM’s pornography and a businessman in close contact with the pornography producer, Kemmish’s role was crucial to the ongoing success and viability of the business. As such, he was certainly “engaged in a pattern of activity involving the sexual abuse or exploitation of’ minors, and therefore deserved the five-level enhancement under U.S.S.G. § 2G2.2(b)(4). The facts of this case are far more egregious than the typical child pornography trafficking or distribution case and therefore the district court should have considered departing from the usual conception of “distributor” in analyzing the applicability of the guideline. See 1995 U.S.S.G. ch. 1 pt. A intro, comment. 4(b).

This is a question of first impression for the Ninth Circuit. In addition to being merely persuasive authority, none of the case law cited by the majority opinion involved traffickers of child pornography who were essential to the success of a pornography *943 operation…