Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, September 17, 2019

Kirby: 1,440 CP Sentence "Equal to" a Life Sentence under the Guidelines and Was Substantively Reasonable

In United States v. Kirby, No. 18-11253 (Sept. 17, 2019) (William Pryor, Jill Pryor, Robreno), the Court affirmed the defendant's 1,440-month child pornography sentence.

The defendant's convictions resulted in an offense level of 43, which produced a life sentence under the Guidelines.  However, the statutes of conviction were capped below life.  Accordingly, under USSG 5G1.2(d), the court was required to run the counts consecutively to the extent they produced a combined sentence "equal to" the Guidelines recommendation of life.  The question here was what numerical sentence is "equal to" life imprisonment.  The district court believed that a life sentence was one of indefinite duration, and it therefore ran the statutory maximum sentences consecutively, which produced a sentence of 1,440 months.  That was the closest numerical sentence to an indefinite sentence that the law allowed.  The Court rejected the defendant's argument that a life sentence was instead 470 months because the Commission had defined it that way for statistical purposes.

The Court also concluded that the sentence was substantively reasonable.  The district court thoroughly discussed the defendant's heinous conduct and creation of child pornography, his breach of public trust as a police officer, and his failure to accept responsibility for his actions.