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State and federal law enforcement officers traced child pornography to the Internet protocol address of Kyle Adam Kirby, a police sergeant. The investigation uncovered hundreds of images of the abuse of children on a laptop computer assigned to his patrol vehicle.
When he was convicted, the court threw the book at him, sentencing him at the top of the guidelines range. Although the guidelines didn’t allow for life imprisonment they did permit the district court to sentence him to 1440 months in prison, or just over 120 years.
In the Eleventh Circuit Court of Appeals case of US v. Kirby, Kirby argued that as little as 470 months of imprisonment would equate to a life sentence. His sentence was unreasonable, he said.
The court itself clearly wanted to put away Kirby as long as possible. All parties agreed that his conviction brought him to a total offense level of 43, which the United States Sentencing Guidelines would normally deem appropriate for a life sentence. However, none of Kirby’s charges, which included sexual exploitation of children for the purpose of producing child pornography and possessing with intent to view material involving minors engaged in sexually explicit conduct, did not allow for life imprisonment.
The court concluded that they should take the maximum penalty for each count and add them together for the sentence. The difference between their sentence and a life sentence, they said, was that theirs was for a definite period, while a life sentence is indefinite.
Kirby disagreed, arguing that such a long sentence amounted to a term of life in prison. He had a little bit of support for his argument.
Kirby reasoned that the United States Sentencing Commission considers a life sentence to be about 470 months, a length consistent with the average life expectancy of federal criminal offenders. However, the court did not find his citation to a statistical sourcebook to this effect particularly compelling. The report collects and publishes data about imprisonment and sentencing, it doesn’t amend or redefine the Guidelines in any way.
Kirby’s insistence that the sentence was substantively unreasonable also failed to move the court. The court rarely finds sentences to be substantively unreasonable and, although it was at the top of the Guidelines range, the fact remained that his long sentence was still within the normal parameters for his conviction.
The district court also properly supported its decision to sentence Kirby for such a long period. They thoroughly discussed his heinous conduct, direct participation in the creation of child pornography, his breach of the public trust as a police officer, and his failure to take responsibility for his actions.
Perhaps Kirby will buck the odds and live out his century-long sentence behind bars. It is doubtful that there are many hoping that he manages to do so.
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