Max Hardcore Facing Harsh Prison Sentence

Wednesday, 30 July 2008

Max Hardcore Facing Harsh Prison Sentence

[Max Hardcore with Layla Rivera at AEE, Las Vegas, Nevada, January 2008]

In case you have not been following this story, adult producer Max Hardcore was recently convicted on multiple counts of obscenity charges after a jury trial in Federal Court in Tampa, Florida. He now faces the possibility of a harsh prison sentence, stiff fines and civil asset forfeiture. Hardcore is currently free on bail, but will be sentenced on September 5th.

The following question was posted on my forum yesterday by Haynese:

Q: Does anyone know what, if any, are the sentencing guidelines the judge will use in regard to Max [Hardcore]? Obviously, I'm no law professor but I basically understand how much prison time someone get's for robbery, rape, or murder. I have no idea how much time someone would/could/should get for obscenity.

A: The Federal Sentencing Guidelines are notoriously complex and convoluted. Many consider the entire system to be a complete failure and recent decisions from the Supreme Court (Booker and Blakely) have cast doubt on the entire system. As a result, the answer to your question, insofar as how much time Max Hardcore could receive is difficult to answer.

Here is a brief explanation from the Third Circuit Court of Appeals of how the Federal Sentencing Guidelines work from an unrelated criminal case in 1991 (United States vs. Gurgiolo, 894 F.2d 56).

According to the scheme established by the Federal Sentencing Guidelines, a criminal defendant's sentence depends on two factors. The first factor is the "offense level," a numerical value ranging from 1 to 43 that corresponds to the severity of the crime. See United States Sentencing Comm'n, Federal Sentencing Guidelines Manual Secs. 1B1.1, 2A1.1-2X5.1. To calculate this offense level, one starts by looking to the Guidelines, which assign a "base offense level" to all federal crimes. For example, the Guidelines assign a base offense level of 43 to first degree murder, whereas the base offense level for trespass is 4. See id. This value may then be adjusted upwards or downwards in light of certain mitigating or aggravating factors, such as the extent to which the defendant accepts responsibility (a mitigating factor), or whether the defendant obstructed justice in the course of the proceedings against him (an aggravating factor). See id. at Secs. 3A1.1-3E1.1. The second major factor upon which a defendant's sentence depends is his "criminal history category." See id. at Secs. 4A1.1-4B1.3. There are six such categories. The lengthier the criminal history, the higher the category into which the defendant is placed.

Once these two factors are calculated, the defendant's sentence may then be determined by referring to a chart in the Guidelines entitled the "Sentencing Table." This chart cross-tabulates the defendant's offense level against his criminal history category, and yields a range of months for which the defendant may be imprisoned. See Id. at Sec. 5.2. For example, if a defendant's offense level is 17 and his criminal history category is III, the Sentencing Table dictates a prison sentence of 30 to 37 months. Id.

The actual text of the 2007 Guidelines state for the following for the crime of obscenity:

CHAPTER 2 - PART G - OFFENSES INVOLVING COMMERCIAL SEX ACTS, SEXUAL EXPLOITATION OF MINORS, AND OBSCENITY 3. OBSCENITY

§2G3.1. Importing, Mailing, or Transporting Obscene Matter; Transferring Obscene Matter to a Minor; Misleading Domain Names

(a) Base Offense Level: 10
(b) Specific Offense Characteristics
(1) (Apply the Greatest) If the offense involved:
(A) Distribution for pecuniary gain, increase by the number of levels from the table in §2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the retail value of the material, but by not less than 5 levels.
(B) Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain, increase by 5 levels.
(C) Distribution to a minor, increase by 5 levels.
(D) Distribution to a minor that was intended to persuade, induce, entice, or coerce the minor to engage in any illegal activity, other than illegal activity covered under subdivision (E), increase by 6 levels.
(E) Distribution to a minor that was intended to persuade, induce, entice, coerce, or facilitate the travel of, the minor to engage in prohibited sexual conduct, increase by 7 levels.
(F) Distribution other than distribution described in subdivisions (A) through (E), increase by 2 levels.
(2) If, with the intent to deceive a minor into viewing material that is harmful to minors, the offense involved the use of (A) a misleading domain name on the Internet; or (B) embedded words or digital images in the source code of a website, increase by 2 levels.
(3) If the offense involved the use of a computer or an interactive computer service, increase by 2 levels.
(4) If the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, increase by 4 levels.

(c) Cross Reference

(1) If the offense involved transporting, distributing, receiving, possessing, or advertising to receive material involving the sexual exploitation of a minor, apply §2G2.2 (Trafficking in Material Involving the Sexual Exploitation of a Minor; Receiving, Transporting, Shipping, or Advertising Material Involving the Sexual Exploitation of a Minor; Possessing Material Involving the Sexual Exploitation of a Minor with Intent to Traffic) or §2G2.4 (Possession of Materials Depicting a Minor Engaged in Sexually Explicit Conduct), as appropriate.
Commentary

Statutory Provisions: 18 U.S.C. §§ 1460-1463, 1465, 1466, 1470, 2252B, 2252C. For additional statutory provision(s), see Appendix A (Statutory Index).
Application Notes:
1. Definitions.—For purposes of this guideline:
"Computer" has the meaning given that term in 18 U.S.C. § 1030(e)(1).
"Distribution" means any act, including possession with intent to distribute, production, advertisement, and transportation, related to the transfer of obscene matter. Accordingly, distribution includes posting material involving the sexual exploitation of a minor on a website for public viewing but does not include the mere solicitation of such material by a defendant.
"Distribution for pecuniary gain" means distribution for profit.
"Distribution for the receipt, or expectation of receipt, of a thing of value, but not for pecuniary gain" means any transaction, including bartering or other in-kind transaction, that is conducted for a thing of value, but not for profit. "Thing of value" means anything of valuable consideration.
"Distribution to a minor" means the knowing distribution to an individual who is a minor at the time of the offense.
"Interactive computer service" has the meaning given that term in section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. § 230(f)(2)).
"Material that is harmful to minors" has the meaning given that term in 18 U.S.C. § 2252B(d).
"Minor" means (A) an individual who had not attained the age of 18 years; (B) an individual, whether fictitious or not, who a law enforcement officer represented to a participant (i) had not attained the age of 18 years, and (ii) could be provided for the purposes of engaging in sexually explicit conduct; or (C) an undercover law enforcement officer who represented to a participant that the officer had not attained the age of 18 years.
"Prohibited sexual conduct" has the meaning given that term in Application Note 1 of the Commentary to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
"Sexually explicit conduct" has the meaning given that term in 18 U.S.C. § 2256(2).
2. Inapplicability of Subsection (b)(3).—If the defendant is convicted of 18 U.S.C. § 2252B or § 2252C, subsection (b)(3) shall not apply.
3. Application of Subsection (b)(4).—Subsection (b)(4) applies if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence, regardless of whether the defendant specifically intended to possess, receive, or distribute such materials.
Background: Most federal prosecutions for offenses covered in this guideline are directed to offenses involving distribution for pecuniary gain. Consequently, the offense level under this section generally will be at least 15.
Historical Note: Effective November 1, 1987. Amended effective November 1, 1989 (see Appendix C, amendment 163); November 1, 1990 (see Appendix C, amendment 326); November 1, 1991 (see Appendix C, amendment 372); November 27, 1991 (see Appendix C, amendment 437); November 1, 2000 (see Appendix C, amendment 592); November 1, 2001 (see Appendix C, amendment 617); November 1, 2004 (see Appendix C, amendment 664); November 1, 2007 (see Appendix C, amendment 701).
Note that the crime of Obscenity has a base offense level of 10. Thus the 2007 Federal Sentencing Table indicates that the guideline for sentencing ranges from 6-12 months per count (for someone with a criminal history of I) to 24-30 months per count (for someone with a criminal history of VI). I am unsure whether or not Max Hardcore has any prior criminal history.

Also it is important to note that in most instances involving adult producers, the level will rise much higher than the base. If the distribution was for pecuniary gain (i.e. distributed for profit), the levels are increased by at least 5, corresponding the commercial value of the product. If the offense involved a computer, the level is increased by 2 and if the content is sadistic, masochistic conduct or violent, the level is increased by 4. Accordingly, Max might be at a minimum of level 21 if his materials are considered sadistic or violent (not a far stretch in my view). Level 21 on the Sentencing Table indicates 37-46 months per offense for a person with a clean prior record. Given the possible high commercial value of Max's product, the actual level applied by the Court may be even higher.

The Court's Order on the Motion for a New Trial indicates he was convicted of ten obscenity related counts (five counts of using an interactive computer service for the purpose of selling and distributing obscene matter and five counts of mailing obscene material). As a result, it appears that Max could be facing at least 370 to 460 months in prison at a minimum (30-38 years). This assumes no past criminal history, the content was found to be violent or sadistic and the minimum commercial value was assigned.

The Sentencing Commission has created a worksheet to help determine the correct sentence. I've attached a copy of it in PDF format to this post.

Also, in researching my response to this post, I noticed that Josh Goldfoot has created an online sentencing calculator. Mr. Goldfoot states he is not affiliated with any government agency or law firm and does not guarantee the accuracy of his calculations, but it might be worth looking at for "quick and dirty" estimates.

So, in a nutshell, that is my rough calculation of what Max Hardcore could be facing at his sentencing hearing in September. Federal judges can deviate from these guidelines however. What Max Hardcore should be facing is an entirely different question. Now that all of you have a better understanding of how the Federal Guidelines work, I'd like to hear your opinions on it.
Do you think this sentence is appropriate for Max? Is the punishment in proportion to the crime? If not, what would be an appropriate punishment?
-- Snowman
P.S. There's a message thread on my forum related to this topic here.