Criminal Law - Federal Sentencing - Ninth Circuit Affirms 262-Month Sentence Based on Uncharged Murder
In United States v. Booker, (1) the Supreme Court rendered the Federal Sentencing Guidelines advisory in order to remedy the scheme's infringement of the jury trial right. (2) Yet the extent to which judicial fact finding may still implicate the Sixth Amendment after Booker remains unclear. (3) The question carries particular salience when sentencing judges rely on uncharged criminal conduct to dictate the length of sentences. Recently, in United States v. Fitch, (4) the Ninth Circuit affirmed a 262-month fraud sentence that was driven by the sentencing judge's finding that the defendant murdered his wife. Fitch adds to a growing catalogue of appellate cases summarily rejecting the availability of as-applied Sixth Amendment challenges to post-Booker sentences. (5) However, the diminishment of the jury trial right in Fitch aptly illustrates why courts ought to consider such challenges.
In April 1999, David Kent Fitch married Maria Bozi despite being romantically involved with another woman, Patricia Molano Gutierrez (Molano). (6) Several months later, Bozi and Fitch moved into a mobile home, which Bozi, purchased in Nevada. (7) On September 4, 1999, Bozi told a friend that she was going on a "mini trip" with Fitch. (8) Over the next several weeks, Fitch withdrew thousands of dollars from Bozi's bank account, at least once while disguised, and gave inconsistent answers when asked about Bozi's location. (9) On October 1, 1999, park rangers saw Fitch discarding several items into a dumpster, including a receipt showing a purchase of chloroform by a "Dr. David." (10) Suspicious, the rangers sealed the mobile home, which Fitch subsequently abandoned. (11) Using a fraudulent passport, Fitch then traveled to London, where he married Molano under an assumed identity. (12) On February 7, 2000, Fitch returned to the United States; he was arrested the next day when, after a routine traffic stop, a license plate search revealed outstanding warrants against him. (13) Bozi was never found. (14)
In June 2004, the government indicted Fitch on various counts of bank fraud, fraudulent use of an access device, and attempted fraudulent use of an access device; superseding indictments charged Fitch with additional counts of laundering monetary instruments and money laundering. (15) In June 2007, a jury convicted Fitch on all counts. (16) The applicable Sentencing Guidelines range for Fitch's conviction was 41 to 51 months. (17) At sentencing, the government sought a substantial upward departure, asking the district court to sentence Fitch to thirty years in prison--the statutory maximum for bank fraud (18)--on the theory that Fitch had murdered Bozi to effectuate his scheme. (19) Relying on six factual findings, (20) the district court found by clear and convincing evidence that Fitch had murdered Bozi and that her death was the means by which he had committed his crimes. (21) Applying section 5K2.1 of the Guidelines, which addresses death as a grounds for departure, and noting that "first degree murder ... is a very serious offense," the district court decided on a fifteen-level upward departure, yielding a sentencing range of 210 to 262 months. (22) The district court then sentenced Fitch to 262 months in prison. (23)
The Ninth Circuit affirmed the sentence. (24) Writing for the majority, Judge Block (25) held that Fitch's sentence of nearly twenty-two years was procedurally and substantively reasonable. (26) Though the court recognized the case as "a stark example of the diminishment of the role of the jury that can result" after Booker, (27) it felt "constrained to affirm." (28)
The court began its analysis by reviewing modern sentencing doctrine, noting that the sentencing judge possesses "extraordinarily broad powers to find the facts that will drive the sentence." (29) In the watershed case of Apprendi v. New Jersey, (30) the Supreme Court held that "any fact [other than a prior conviction] that increases the penalty for a crime beyond the prescribed statutory maximum" must be proved to a jury beyond a reasonable doubt. …