United States v. Kyle Adam Kirby (11th Cir. September 2019)

The Federal Docket

October 17, 2019

Sentencing/Sentencing Guidelines – Where the Guidelines range exceeds the statutory maximum sentence, the Guidelines recommend sentencing a defendant to consecutive maximum prison terms for each count of conviction, until the sentence is within the Guidelines range.

Kyle Kirby was convicted of five counts relating to producing and possessing child pornography. At sentencing, his total offense level was 43, resulting in a Guidelines term of life in prison. Since none of Kirby’s offenses of conviction allowed for a life sentence, however, the sentencing court held that the Guidelines recommended “taking the maximum for each count…and adding them together for a sentence.” Adding the statutory maximums together for each of Kirby’s five counts of conviction, the Court imposed a Guidelines sentence of 1440 months of imprisonment.

U.S.S.G. § 5G1.2(d) directs sentencing courts to impose consecutive terms for multiple counts of conviction when “the sentence imposed on the count carrying the highest statutory maximum is less than the ordinary guidelines recommendation.” The Guidelines only recommend imposing consecutive terms of imprisonment, however, “to the extent necessary to produce a combined sentence equal to the ordinary guidelines recommendation.” In this case that meant adding the statutory maximums for each count to produce a combined sentence equal to a life term.

On appeal, Kirby argued that the sentencing court committed procedural error by calculating the Guidelines range of consecutive sentences totaling 1440 months. Instead, Kirby argued that the Guidelines only called for imposing consecutive terms equaling 470 months, reasoning that a Guidelines term of life imprisonment should be converted to a term of 470 months based on statements by the U.S. Sentencing Commission that 470 months is a “length consistent with the average life expectancy of federal criminal offenders.”

The Court disagreed. Citing the definition of “Life Imprisonment” in Black’s Law Dictionary, the Court held that a term of imprisonment for “life” means an “indefinite” term “for the remaining years of his or her natural life.” As such, the sentencing court did not err in calculating Kirby’s Guidelines range by essentially combining the maximum sentences for his counts of conviction to get “as close to indefinite incarceration as the law allowed.”

Appeal from the Middle District of Florida

Opinion by W. Pryor, joined by J. Pryor and Robreno (by designation from E.D. Pa.)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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