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.
