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United States v. Kirby

United States Court of Appeals, Eleventh Circuit

September 17, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
KYLE ADAM KIRBY, Defendant-Appellant.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 3:15-cr-00175-TJC-JRK-1

          Before WILLIAM PRYOR and JILL PRYOR, Circuit Judges, and ROBRENO, [*] District Judge.

          WILLIAM PRYOR, CIRCUIT JUDGE.

         This appeal requires us to decide whether the United States Sentencing Guidelines cap an otherwise recommended sentence of life imprisonment at 470 months when the statute of conviction does not allow a sentence of a life term. A jury convicted Kyle Adam Kirby of five counts relating to the production and possession of child pornography. At sentencing, Kirby's total offense level was 43, which means that the Guidelines ordinarily recommended a sentence of a life term. But because the statutory maximum punishment for Kirby's crimes was less than a life term, the district court concluded that the Guidelines recommended consecutive terms of the maximum sentence for each count of conviction. The district court then adopted this recommendation and sentenced Kirby to 1440 months of imprisonment. Kirby argues that the correct sentence is 470 months of imprisonment because the United States Sentencing Commission equates a life sentence to that term for statistical purposes. He also contends that his sentence was substantively unreasonable. We disagree and affirm Kirby's sentence.

         I. BACKGROUND

         State and federal law enforcement officers traced 28 video files and 90 images depicting child pornography to the Internet protocol address of Kyle Adam Kirby, a sergeant with the Live Oak Police Department. A later investigation by the Federal Bureau of Investigation uncovered over 200 images of children being sexually abused on the laptop computer assigned to Kirby's patrol vehicle. Kirby, who was by then suspended from his job, responded by asking Sergeant Derick Slaughter to erase the files from his account on the department's desktop computer. Instead of deleting Kirby's files, Slaughter searched Kirby's account and found an image of a nude, prepubescent boy. Slaughter reported the image to the police chief, who approved a search of the computer. A forensic analysis of the computer produced at least 80 images of child pornography or child erotica. Most of these images were of Kirby's thirteen-year-old stepdaughter, either captured by hidden cameras in bathrooms or taken while Kirby was assisting his stepdaughter with stretches due to a sports injury. The computer also contained a pornographic image of a friend of Kirby's stepdaughter.

         A grand jury charged Kirby with three counts of sexual exploitation of children for the purpose of producing child pornography, 18 U.S.C. § 2251(a), (e), and two counts of possessing with intent to view material involving minors engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(4)(B), (b)(2). Following trial, a jury found Kirby guilty on all counts.

         Using the 2016 edition of the United States Sentencing Guidelines, the probation officer assigned Kirby a total offense level of 43 and a criminal-history category of I. The district court accepted this calculation without objection from either party. As the district court explained, the Guidelines ordinarily recommend a life sentence for this offense level. See United States Sentencing Guidelines Manual ch. 5 pt. A (Nov. 2016). But because none of the counts of conviction allowed for life imprisonment, the district court concluded that the Guidelines recommended "taking the maximum for each count . . . and adding them together for a sentence." Again without objection, the district court then calculated the guidelines sentence as 1440 months. And after considering the statutory sentencing factors, 18 U.S.C. § 3553(a), the district court sentenced Kirby to 1440 months of imprisonment.

         II. STANDARD OF REVIEW

         We review an interpretation of the Sentencing Guidelines de novo. United States v. Whyte, 928 F.3d 1317, 1327 (11th Cir. 2019). We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Duperval, 777 F.3d 1324, 1331 (11th Cir. 2015). We will reverse for abuse of discretion only if "we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the [section] 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case." Id. (internal quotation marks omitted).

         III. DISCUSSION

         For the first time on appeal, Kirby argues that the district court committed procedural error by calculating the guidelines sentence as consecutive terms of the maximum sentence for each count of conviction. As a fallback position, he contends that his sentence was substantively unreasonable. We address each argument in turn.

         A. The District Court Did Not Err When It Calculated the Guidelines Sentence.

         Kirby argues for the first time on appeal that the district court incorrectly calculated the guidelines sentence. His failure to object in the district court would ordinarily mean that we review for plain error, United States v. Corbett, 921 F.3d 1032, 1037 (11th Cir. 2019), but because no error occurred we ...


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