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September 18, 2019

Without discussion of 3553(a) factors, Eleventh Circuit needs just one sentence to declare 120 years (LWOP) imprisonment for child porn offenses reasonable

Earlier this month in this post, I flagged the Sixth Circuit panel ruling in US v. Boucher, No. 18-5683 (6th Cir. Sept. 9, 2019) (available here), which concluded that a month-long sentence was unreasonably short after an intricate multi-page analysis of § 3553(a) factors.  The detailed circuit analysis especially faulted the district court's consideration of personal factors and the failure "to address the risk of sentence disparities."  In my post about the Boucher ruling, I noted that I favor reviewing courts conducting robust and searching forms of reasonableness review, but I  lamented the fact that circuit courts often seem much more interested in seriously questioning 30-day sentences when federal prosecutors appeal than in questioning 30-year sentences when federal defendants appeal.  

Interestingly, today I was alerted to a new Eleventh Circuit panel ruling in which it is not a 30-year sentences, but actually a 120-year sentence(!), that gets short shrift in the reasonableness review process.  Specifically, in US v. Kirby, No. 18-11253 (11th Cir. Sept. 17, 2019) (available here), the defendant was convicted after trial of three counts of producing child pornography and two counts of possessing child porn.   As described by the Eleventh Circuit panel, the defendant had a large (but not enormous) number of child porn images and he created (but did not distribute) many images of his "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 [and also had one] pornographic image of a friend of [his] stepdaughter."  This is serious criminal behavior, but the district court responded (based it seems on a maxed-out guideline range of life) by maxing out all the counts to the statutory maximum and running the terms consecutively to arrive at sentence of 1440 months (120 years) of imprisonment.

In addition to making a technical challenge to how the guideline range of life was used by the district court, the defendant here contended that his sentence was substantively unreasonable.  After discussing the technical issues for a number of pages, here is the full substance of the Kirby panel's response to the reasonableness claim:

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.

Without seeing the full factual record or the parties' briefs, I am disinclined to assert that the substantive judgment of reasonableness here was obviously wrong.  But where is the circuit concern in this case for the district court's consideration of personal factors and the failure to address the risk of sentence disparities?   And what does strike me as obviously wrong is the obvious fact that there is such a contrast in the amount of attention and deliberation given to the reasonableness claims in cases like Boucher and Kirby.  As long as reviewing courts (and so many others) are so much more likely to worry so much more about undue leniency than about undue severity, over-incarceration will still define our criminal justice systems.

September 18, 2019 at 01:29 PM | Permalink


Another overwrought, fake news conclusion. Your forget that the miscreant will earn good time at 2 months per year, meaning his actual sentence is a mere 96 years or so. So what's unreasonable about that! (Pardon me while my cheek swallows my tongue).

Posted by: anon1 | Sep 18, 2019 3:14:27 PM

Interesting that you didn't note the author of the opinion is former USSC Chair Bill Pryor.

Posted by: whatever | Sep 19, 2019 2:01:54 PM

I used to comment here quite a lot a couple of (few?!) years ago and argued with that tw*t Bill Otis a good bit. At the time he had some lackey helping him be ridiculous also.

I am listed on Nanny Big Government's $EX Offender Registry hit list. Registries are way beyond worthless and idiotic, but that's a whole other story. Being listed has given me a complete and absolute disrespect and contempt for government, their "laws", their law enforcement criminals, and anyone who supports them. I wasn't aware that I could hate "people" so much. Today, I'm the "monster" and enemy they always wanted. I harm them by any legal means possible.

Anyway, just for context, what I did to get listed on the hit list was relatively minor and had nothing to do with CP. However, Amerika's obsession and brainlessness regarding $EX crimes is unreal. It is like the vast majority of "people" living in Amerika are mouth-breathing cretins. Our political climate certainly indicates the same thing. I just couldn't be more disgusted at this failed, "exceptional" country.

Perhaps we should just execute CP producers or consumers? Would everyone be proud then? We could be like so many other glorious countries in the world (we could even chop off people's hands for stealing, yeah!!). I feel like most "people" who live in Amerika are disgusting and awful. They are in love with imprisoning and harassing people. They are self-entitled, self-righteous, stupid, and beyond lazy. Amerika has a full and complete history of doing stupid, awful, hateful things to the hated people of the moment so I guess the $EX hysteria is right in line with that. But it's disgusting and so are they.

I can't say that I've thought super in-depth about what should be done with CP producers or consumers generally but I feel like perhaps this guy deserved maybe 1 year in prison. Unlike what most of the morons in Amerika think, that is actually a serious and harmful punishment. And if prison were actually run correctly instead of how the idiots and profiteers do it, 1 year would work well and this guy would very likely get out, have learned his lesson, and contribute to society. It wouldn't shock me at all if his stepdaughter and other victim already forgave him. Beyond that, it is not a whole lot of anyone else's business. In reality.

I hope this guy escapes prison and murders a bunch of people who think his sentence is just fine. That would make me very happy. If I were him, that would certainly be my goal in life.

Posted by: FRegistryTerrorists | Sep 26, 2019 9:54:30 AM

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