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United States v. Rudzavice

18 U.S.C. �1470 prohibits the interstate transfer of "obscene matter" to an individual under the age of 16. In Miller v. California , the Supreme Court articulated a three-part test for determining whether material is "obscene" and therefore falls outside the scope of First Amendment protections. Courts read that test into federal obscenity statutes in order to construe them in a manner consistent with the Constitution. Accordingly, the fact that �1470 does not specifically define the word "obscene" does not render it unconstitutionally vague. 5th U.S. Circuit Court of Appeals, No. 08-10791, 10-21-2009

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Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.

James Rudzavice was convicted in a bench trial for one count of knowingly receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of attempting to transfer obscene material to a minor under the age of 16 in violation of 18 U.S.C. § 1470. On appeal, Rudzavice argues that: (1) the district court erred in refusing to acquit him of the charge of violating § 1470 because he did not attempt to transfer obscene materials to an individual who was in fact under the age of 16; (2) § 1470 is unconstitutionally vague because it fails to define the terms “obscene” and “sexual conduct”; (3) he should have received an offense-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1; and (4) the district court erred by failing to adequately explain its sentence in terms of the factors in 18 U.S.C. § 3553(a). We affirm.

I.

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