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United States v. Kelly

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Submitted: May 12, 2010

Before BYE, MELLOY, and SHEPHERD, Circuit Judges.

A jury convicted A.J. Kelly of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and Kelly was sentenced to 115 months’ imprisonment followed by three years of supervised release. Kelly appeals his conviction on the ground there was insufficient evidence of his possession or control of a firearm. Kelly also challenges a special condition of his supervised release barring him from possessing any material which “contains nudity or that depicts or alludes to sexual activity or depicts sexual arousing material,” arguing this condition is not reasonably related to the sentencing factors set forth in 18 U.S.C. § 3553(a) and is overbroad in violation of his rights under the First Amendment. Although we reject Kelly’s sufficiency-of-evidence argument and affirm his conviction, we find merit in his arguments regarding the special condition and remand for further consideration of such condition and resentencing.

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