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December 19, 2008

Fourth Circuit affirms upward departure in notable obscenity case

The Fourth Circuit's work in US v. Whorley, No. 06-4288 (4th Cir. Dec. 18, 2008) (available here) is already getting attention from other bloggers because of the panel's split of the reach of federal obscenity law.  But the case should draw a little attention from sentencing fans because the majority opinion also includes a discussion of reasonableness review of an upward departure.  Here is the first paragraph of Whorley, which highlights why the case might draw attention for non-sentencing reasons:

Dwight Whorley was convicted of (1) knowingly receiving on a computer 20 obscene Japanese anime cartoons depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 1462; (2) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, the same 20 anime cartoons, in violation of 18 U.S.C. § 1466A(a)(1); (3) knowingly receiving, as a person previously convicted of receiving depictions of minors engaging in sexually explicit conduct, 14 digital photographs depicting minors engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(2); and (4) knowingly sending or receiving 20 obscene e-mails, in violation of 18 U.S.C. § 1462. Imposing a sentence that departed upward from the recommended Sentencing Guidelines range, the district court sentenced Whorley to 240 months’ imprisonment.

December 19, 2008 at 08:03 AM | Permalink

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Comments

If he received it at his home, and it did not depict real humans, wouldn't this be a free speech case?

Posted by: EJ | Dec 20, 2008 2:05:14 AM

"wouldn't this be a free speech case?"

if it was just nudity, probably... but free speech seems to not be an issue when it comes to 'depictions of minors engaging in sexually explicit conduct"

Posted by: Mark | Dec 20, 2008 2:55:12 PM

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