                Case: 18-11253      Date Filed: 09/17/2019      Page: 1 of 9


                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 18-11253
                              ________________________

                      D.C. Docket No. 3:15-cr-00175-TJC-JRK-1



UNITED STATES OF AMERICA,

                                                                      Plaintiff-Appellee,
                                           versus

KYLE ADAM KIRBY,

                                                                   Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Florida
                            _______________________

                                  (September 17, 2019)

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

WILLIAM PRYOR, Circuit Judge:




       *
        Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of
Pennsylvania, sitting by designation.
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      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,



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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



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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



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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 need not decide

whether the alleged error was plain or affected Kirby’s substantial rights.

       As Kirby concedes, his total offense level and criminal-history category

would ordinarily call for life imprisonment. U.S.S.G. ch. 5 pt. A. But none of

Kirby’s offenses carried a possible life sentence. See 18 U.S.C. § 2251(e)

(imposing a maximum sentence of 30 years); id. § 2252(b)(2) (imposing maximum

sentences of 10 and 20 years). So the district court applied section 5G1.2(d) of the

Guidelines, which explains what to do in that circumstance:

      If the sentence imposed on the count carrying the highest statutory
      maximum is less than the [ordinary guidelines recommendation], then
      the sentence imposed on one or more of the other counts shall run
      consecutively, but only to the extent necessary to produce a combined
      sentence equal to the [ordinary guidelines recommendation].

      The parties agree that section 5G1.2(d) controls our decision. They dispute

what sentence is “equal to” life imprisonment. The district court adopted a

straightforward understanding of a life sentence—that is, indefinite in duration. So


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it concluded that the Guidelines recommended consecutive terms of the statutory

maximums for each count of conviction, the closest sentence to life that the law

allowed. The maximum terms for Kirby’s five counts of conviction collectively

produced a sentence of 1440 months of imprisonment. But Kirby contends that a

life sentence converts to 470 months. He explains that the United States Sentencing

Commission defines a “life sentence” for statistical purposes as 470 months, “a

length consistent with the average life expectancy of federal criminal offenders.”

U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics 166 (2017).

      The district court correctly interpreted the Guidelines. “[T]he language of

the Sentencing Guidelines, like the language of a statute, must be given its plain

and ordinary meaning.” United States v. Whatley, 719 F.3d 1206, 1222 (11th Cir.

2013) (internal quotation marks omitted). And the meaning of life imprisonment is

clear: “Confinement of a person in prison for the remaining years of his or her

natural life.” Life Imprisonment, Black’s Law Dictionary (11th ed. 2019). By

definition, life imprisonment lacks a fixed term. So the district court correctly

combined the statutory maximum for each count of conviction to set Kirby’s

guideline sentence at 1440 months of imprisonment, the closest available sentence

to indefinite incarceration. See U.S.S.G. § 5G1.1(a) (“Where the statutorily

authorized maximum sentence is less than the minimum of the applicable guideline

range, the statutorily authorized maximum sentence shall be the guideline



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sentence.”); see also United States v. Sarras, 575 F.3d 1191, 1208–09, 1219–20 &

n.22 (11th Cir. 2009) (concluding that a sentence of 1200 months of imprisonment

fell within the Guidelines when the Guidelines called for a life sentence but the

counts of conviction did not permit life).

      The definition of life imprisonment in the statistical sourcebook published

by the Sentencing Commission does not alter this conclusion. To start, the

statistical sourcebook is not part of the Sentencing Guidelines. The Commission

publishes the sourcebook based on its authority to collect and publish data on the

sentencing process. See Sourcebook of Federal Sentencing Statistics, supra, at s-1

(citing 28 U.S.C. § 995(a)(12)–(16)). The report also satisfies the Commission’s

obligation to provide an annual report of sentencing data to the United States

Attorney General. See id. (citing 28 U.S.C. § 994(w)(4)). But the sourcebook does

not amend or redefine the Guidelines in any way, which would require the

Commission to approve it by an affirmative vote and submit it to Congress for

review. See 28 U.S.C. § 994(a), (p). As the First Circuit has held, “[t]hough 470

months may be an accurate statistical representation of the actual length of many

life sentences—and may indeed be equivalent to a life sentence for many

individuals—there is no ‘cap’ within the Guidelines that limits life sentences to

470 months.” United States v. Breton, 740 F.3d 1, 22 (1st Cir. 2014). And although

one circuit has approved the use of 470 months as a baseline to calculate a



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reduction in a sentence for substantial assistance to the government, United States

v. Keller, 413 F.3d 706, 711 (8th Cir. 2005); see also United States v. Nelson, 491

F.3d 344, 349–50 (7th Cir. 2007) (suggesting the same in dicta), no circuit has

defined life imprisonment as 470 months.

      The Supreme Court has described a life sentence as the “second most severe

[punishment] known to the law,” Harmelin v. Michigan, 501 U.S. 957, 996 (1991),

and we cannot accept Kirby’s invitation to hold that a 1440-month sentence is

worse. We instead conclude that when the Sentencing Guidelines recommend life

imprisonment, they mean life imprisonment. Accordingly, the district court did not

err procedurally when it calculated Kirby’s guidelines sentence as close to

indefinite incarceration as the law allowed.

                B. The Sentence Is Not Substantively Unreasonable.

      Kirby also contends that his sentence is substantively unreasonable, which

requires him to establish that the district court “fail[ed] to afford consideration to

relevant factors that were due significant weight, [gave] significant weight to an

improper or irrelevant factor, or commit[ed] a clear error of judgment in

considering the proper factors.” United States v. Dixon, 901 F.3d 1322, 1351 (11th

Cir. 2018) (internal quotation marks omitted). Substantively unreasonable

sentences are “rare.” Id. We also “ordinarily expect a sentence within the

guidelines range to be reasonable.” Id. (internal quotation marks omitted).



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      As an initial matter, Kirby’s argument is largely predicated on the erroneous

conclusion that the district court imposed an above-guidelines sentence.

Regardless, the sentence was not unreasonable. Before imposing the longest

sentence that it could, the district court thoroughly discussed Kirby’s particularly

heinous conduct and direct participation in the creation of child pornography, his

breach of public trust as a police officer, and his total failure to take responsibility

for his actions. We see no abuse of discretion.

                                 IV. CONCLUSION

      We AFFIRM Kirby’s sentence.




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