Today the Eleventh Circuit Court of Appeals affirmed an obscenity conviction but …
The trial of Paul F. Little a.k.a. Max Hardcore included allegations of (1) improper comments by the government during closing argument; (2) improper jury instructions; (3) improper handling of juror irregularities; (4) failure of the judge to recuse herself; and (5) errors in sentencing. The Eleventh Circuit agreed that Mr. Little’s sentence was legally defective:
Consistency demands that if a district court uses a local community standard then the pecuniary gain derived from the obscenity should be limited to the area defining those local community standards. Appellants’ sentences are being increased for sales in areas that could have community standards that deem the DVDs not to be obscene. Thus, when dealing with the DVDs in areas outside the Middle District of Florida, we must treat them as speech protected by the First Amendment until otherwise determined. We find that the one point increase in Appellants’ offense level for pecuniary gain over thirty thousand dollars was error. Therefore, we vacate the sentence and remand for re-sentencing.
You can read the decision here.