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.