if you don't want to read that whole thing just read this part here
Quote:
H. The District Court Properly Applied a Sentencing Enhancement for Sado-
Masochism, but Erred in Assessing a Point for Derived Income Over
$30,000
?We apply a two-pronged standard to review claims that the district court
erroneously applied sentencing guidelines adjustments. First, we review the
factual findings underlying the district court?s sentencing determination for clear
error. We then review the court?s application of those facts to the guidelines de
novo.? United States v. Williams, 527 F.3d 1235, 1247?48 (11th Cir. 2008)
(internal citations omitted).
1. The Sado-Masochism Enhancement was Proper
The district court did not err in applying a sentencing enhancement for
sadistic, masochistic, or other violent depictions. The relevant section of the
United States Sentencing Guidelines (?U.S.S.G.?) states that an enhancement is
proper ?[i]f the offense involved material that portrays sadistic or masochistic
conduct or other depictions of violence.? U.S.S.G. § 2G3.1(b)(4) (emphasis
added). It does not matter if the persons depicted in the materials actually were
sadists or masochists or whether they were actually harmed. The focus of the
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enhancement is whether the material portrays such conduct. In this case, there is
no doubt that the trailers on Appellants? websites and the DVDs portrayed sadistic
and masochistic conduct. The district court did not err in applying this
enhancement.
2. The Point Assessed for Income Earned Over $30,000 was Improper
The district court erred when it considered pecuniary gain derived from sales
of the DVDs outside the Middle District of Florida. The U.S.S.G. states that if
there is any pecuniary gain, the offense level must be increased by five points.
U.S.S.G. § 2G3.1(b)(1)(A). Thereafter, any additional increase in the offense level
due to pecuniary gain is dictated by the table in U.S.S.G. § 2B1.1(b)(1)(D). Id.
The district court adopted the Pre-Sentence Report (?PSR?) which found, ?between
January 1, 2005 and June 25, 2008, the [Appellants] sold 734 of the [charged]
DVDs for a total retail value of $40,340.50.? Little PSR at 45; Max World PSR at
46. According to the U.S.S.G., the Appellants? offense level was increased by six
points because there was a total pecuniary gain of over thirty thousand dollars
($30,000) from the DVDs. U.S.S.G. § 2B1.1(b)(1)(D).
The U.S.S.G. says that the court may consider all relevant conduct, which is
defined as ?all acts and omissions . . . by the defendant . . . . that occurred during
the commission of the offense of conviction, in preparation for that offense, or in
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the course of attempting to avoid detection or responsibility for that offense.?
U.S.S.G. § 1B1.3(a)(1)(A)?(B) (emphasis added). Clearly, relevant conduct must
be connected directly to the offense for which Appellants were convicted, the
transmission and sale of obscenity in the Middle District of Florida. The district
court directed the jury to use the community standards of the Middle District of
Florida in determining whether the DVDs were obscene. Thus, the DVDs have
only been established as illegal obscenity in the Middle District of Florida.
Neither the district court nor the PSR made any findings related to the
geographic location from which the $40,340.50 was derived. There was no
evidence presented at sentencing that these funds were derived from sales inside
the Middle District of Florida. The only evidence of any pecuniary gain earned by
Appellants in the Middle District of Florida was the amount paid by the postal
inspector for the DVDs forming the basis for counts six through ten.
While the sales of these DVDs in areas outside the Middle District of Florida
are essentially the same conduct as the sale to the inspector inside the Middle
District of Florida, they differ in one very critical way: they are not illegal sales of
obscenity (at least not yet). Sales of pornographic materials do not come to the
fruition of being illegal obscenity until a jury determines that it is obscenity
according to its community standards. The DVDs at this point have only been
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found to be obscene and illegal in the Middle District of Florida.
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. Increasing Appellants? sentences for
pecuniary gain in areas where the DVDs have not yet been proven to be obscene
comes dangerously close to a violation of Appellants? First Amendment rights.
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.
III.
The Appellants? convictions are affirmed. Their sentences are vacated and
remanded for re-sentencing in accordance with our decision.
AFFIRMED IN PART, REVERSED IN PART, REMANDED FOR RESENTENCING.
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