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 ...