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September 23, 2011

Split Ninth Circuit affirms huge upward departure based on uncharged murder

A remarkable case produces today another remarkable reasonableness review outcome via a split Ninth Circuit that affirms a way above guideline sentence based on an uncharged murder.  Here is how the majority opinion in US v. Fitch, No. 10-10607 (9th Cir. Sept. 23, 2011) (available here), gets started:

David Kent Fitch was convicted by a jury of nine counts of bank fraud, two counts of fraudulent use of an access device, two counts of attempted fraudulent use of an access device, two counts of laundering monetary instruments, and one count of money laundering. The applicable Sentencing Guidelines range was 41-51 months.  At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife, and that her death was the means he used to commit his crimes. Relying on that finding, he imposed a sentence of 262 months.

Fitch appeals his sentence, arguing that the district court committed procedural error and that, in any event, its sentence was substantively unreasonable.  Because Fitch has never been charged with his wife’s murder, his sentence is a poignant example of a drastic upward departure from the Guidelines range — albeit below the statutory maximum—based on uncharged criminal conduct.  We have not had occasion to address a scenario quite like this, but are constrained to affirm.

Here is how the dissent concludes its opinion:

We simply do not know any of the circumstances of Bozi’s disappearance.  We know that she has disappeared and that Fitch immediately exploited her disappearance for his own benefit.  While Fitch may indeed have been played a causative, or a concealing, role in Bozi’s disappearance, the record contains no evidence that sheds light on the manner of his involvement or the degree of his involvement.  There is certainly no clear and convincing evidence of premeditated murder.  The district court’s finding is simply not supported by the record.  The substantial departure applied pursuant to § 5K2.1 was therefore an abuse of discretion.  Accordingly, I respectfully dissent.

September 23, 2011 at 01:34 PM | Permalink

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hmm

"At sentencing, however, the district judge found by clear and convincing evidence that Fitch had murdered his wife"

damn under our constution i thought that was the JURY'S decision. oh WAIT he's NEVER been charged! let alone faced the constutionally REQUIRED jury of his peers!

well seems we have another traitor judge for the removal list! Not to mention his traitor friends on the 9th court as his co-conspiritors!

Posted by: rodsmith | Sep 23, 2011 1:51:14 PM

rodsmith --

Under Apprendi, it almost surely is the jury's decision. You're right about that.

The problem is in the remedial portion of Booker. The Court could have required above-the-max sentencing facts to be proved to a jury BRD. Instead, it chose another route. Believing (correctly) that Congress wanted sentencing to be based on a real offense system, it rejected the BRD option and instead let judges continue to decide sentencing facts under the pre-existing, more lenient standard. What the defense got instead was that the Guidelines became optional.

The outcome here is a product of precisely those two things: A real offense system and advisory-only guidelines.

I'll say again what I've said a zillion times: Require relevant sentencing facts to be proved BRD, and bring back mandatory guidelines -- something that, under Booker's explicit language, Congress is free to do.

Posted by: Bill Otis | Sep 23, 2011 2:43:55 PM

Bill,

This post is not intended as a gig in any way. I have followed your comments for some time, and I don't recall you ever saying that sentencing facts should be proven BRD (with mandatory sentencing guidelines). I thought you were opposed to BRD for sentencing -- although your desire for mandatory "guidelines" has been clear. As an extra step, should sentencing facts be decided by a petit jury (BRD)? Also, in your view, in the federal system (if it is sentencing facts by petit jury BRD + mandatory sentencing guidelines), do those sentencing facts have to be part of the grand jury's indictment?

Thanks for sharing your views.

Mark

Posted by: Mark Pickrell | Sep 23, 2011 3:21:55 PM

This seems to be the perfect situation to raise an as-applied Sixth Amendment challenge: without the finding of a murder, the sentence would have been unreasonable; accordingly, not submitting that essential fact to a jury BRD, as applied in this case, violated the Sixth Amendment.

The opinion hints at such an argument in the last paragraph of Section III and first paragraph of Section IV. Does anyone know if an "as applied" challenge was specifically raised?

Posted by: DEJ | Sep 23, 2011 4:02:27 PM

Mark,

I seem to recall Bill stating his preference for the system he outlines with this comment several times in the past, though I'm not going to make the effort of searching for such entries.

Not speaking for Bill here, but I would not require such factors to be part of the grand jury charge. Instead the system I would see would put the various sentencing factors, pretty much in their current form, before the same petit jury that decided guilt. Move those findings from the judge to the jury and Booker should be satisfied. The factors should not be part of the grand jury indictment because the grand jury is concerned with setting the upper limit of sentencing exposure, while the petit jury proceeding would be concerned only with fixing the actual sentence to be served.

One thing I'm not sure on is whether proof beyond reasonable doubt is actually required in order to make the guidelines mandatory or if merely submitting those questions to the jury would be enough and using either a preponderance or clear and convincing evidence standard. Aprendi requires a jury finding at BRD in order to raise the maximum sentence an offender is exposed to, but that's a different question from making guidelines binding within an existing statutory sentencing range. The point is, I'm not sure whether its BRD or jury that would be required to make the guidelines mandatory.

Posted by: Soronel Haetir | Sep 23, 2011 5:15:27 PM

Mark --

As Soronel correctly notes, I have often stated my preference for mandatory guidelines with a BRD standard for any sentencing facts that would take the sentence above the max (a la' Blakely).

Other sentencing facts would not have to be proved BRD, also per Blakely.

Those facts that would take the sentence above the max would have to be submitted to a jury, at the defendant's option.

No sentencing facts would have to be included in the indictment because, under long established law, an indictment need only charge the elements of the offense. It has never to my knowledge been viewed as a sentencing predicate.

That said, the defendant would have to be given reasonable notice post-verdict and pre-sentence of the facts upon which the government plans to obtain a jury determination.

And yes, this is something of an on-the-fly mish-mash -- exactly as predicted by Justice Thomas. When the SCOTUS makes things up on its own, which is exactly what it did in the remedial portion of Booker, this is what happens.

Posted by: Bill Otis | Sep 23, 2011 6:04:15 PM

Bill, SCOTUS did not make anything up "on its own" in crafting Booker's remedy. Rather, it had the help of the SG and DOJ.

The government in Booker argued for advisory guidelines if Blakely was found to apply. It was Defendants Booker and Fanfan, as well as amicus including the NACDL, that advocated for the remedy you now propose.

Posted by: DEJ | Sep 23, 2011 6:45:20 PM

DEJ --

"Bill, SCOTUS did not make anything up "on its own" in crafting Booker's remedy. Rather, it had the help of the SG and DOJ."

It didn't have my help. I was not in the USAO then, and I'm not there now.

If the defense bar is so much for mandatory guidelines, I wish they'd join me in fighting for their restoration. Are they doing that?

Posted by: Bill Otis | Sep 23, 2011 7:38:06 PM

You know my point, Bill. You can't blame SCOTUS, or even defendants and their attorneys, for the havoc you (hyperbolically and unjustifiably) proclaim Booker has wrought. That credit should be aimed at your former employer.

Posted by: DEJ | Sep 23, 2011 9:41:01 PM

DEJ --

I can't "blame" the Supreme Court majority for its own decisions???!!! Amazing! Justice Stevens certainly did in his Booker remedial dissent (joined by, inter alia, Justice Scalia).

I'm glad to hear the government gave the Court orders as to how to decide Booker. The Court must have missed the memo, though, since it decided the main question CONTRARY to the Department's position.

Did you forget that?

While we're at it, since you didn't answer, I'll ask again: Where is the defense bar these days in seeking the restoration of mandatory guidelines? And what have YOU done? I at least wrote an article in the Federal Sentencing Reporter. Where's your contribution?

And why has the current Administration -- which I feel confident in guessing you prefer to the last one -- not done one single thing to restore mandatory guidelines?

Posted by: Bill Otis | Sep 23, 2011 10:43:57 PM

The real issue is that the sentencing range is so broad a judge can sentence a man for murder without proof BRD there was a murder. IOW, the range is so broad justice is done for a murder conviction without a murder conviction (and maybe without a murder).

Posted by: Anon | Sep 24, 2011 12:42:01 AM

the problem bill and soronel is your both missed the BIGGIE!

" Because Fitch has never been charged with his wife’s murder,"

THE DAMN guy has NOT EVEN BEEN FRIGGIN CHARGED! nothing! so how the hell is it even being considered!

if this bit of CRIMINAL STUPIDITY is now the law in this country....what's next they drag someone off the street and say judge "we think he did X" so judge now issues a legal sentence for "x" absent an arraignment, charges, trial NOTHING!

I repeat anyone involved in this travisity is a traitor to the constution and needs to be REMOVED wit PREDIJUCE!

Posted by: rodsmith | Sep 24, 2011 12:55:13 AM

Given that I believe thefts of $50 should carry a near automatic death sentence and that execution does not trouble me until the amount is in the $10 range I have no sympathy for that particular argument. The legislature, in its infinite wisdom, has seen fit to say that the frauds in question here can, in some circumstances carry sentences that would normally be given to murderers. Once guilt has been established beyond reasonable doubt and the range of permissible sentences is thus fixed the actual sentence to be served is arrived at using a preponderance (or in some cases clear and convincing) standard. This particular offender opened himself to the possibility of this sentence via the frauds alone and thus he was on notice.

It would serve justice equally well to say that every offender shall serve the maximum possible sentence minus those factors that they can prove to that same standard. Any sentence below the statutory maximum is a boon to the offender, not any sentence above the minimum some additional insult.

Posted by: Soronel Haetir | Sep 24, 2011 2:08:28 AM

Bill,

I think I understand your position now. When you say that sentencing facts "above the max" must be found BRD by a jury, you mean above the "guidelines" max. Tell me if I'm wrong, but you don't believe that sentencing facts to ESTABLISH the sentencing range should be found by a jury BRD. You still want the judge to determine the sentencing range himself, based on a preponderance of the evidence.

I do not believe Booker's substantive decision supports your view, at least when the "guidelines" are mandatory.

In my opinion, if "guidelines" are to be binding, all sentencing facts affecting the binding sentencing range must be found BRD by a petit jury. Moreover, in the federal system, I believe those facts must be charged by a grand jury. In the alternative, we can have an advisory sentencing system. In other words, I believe that the Booker substantive and remedial decisions were right (and that the decision should be expanded to protect the grand jury right as well as the petit jury right).
Mark

Posted by: Mark Pickrell | Sep 24, 2011 8:51:46 AM

Mark --

"...but you don't believe that sentencing facts to ESTABLISH the sentencing range should be found by a jury BRD."

That is correct, and my view there is consistent with 200 years of practice in this country, and with current practice. Indeed, to my knowledge, neither the Supreme Court nor any federal court of appeals has held that facts needed merely to establish the sentencing range must be found BRD.

"I do not believe Booker's substantive decision supports your view, at least when the 'guidelines' are mandatory."

That's the whole reason the Booker remedial majority made them NON-mandatory.

"...if 'guidelines' are to be binding, all sentencing facts affecting the binding sentencing range must be found BRD by a petit jury."

That is what the logic of Apprendi seems to me to imply, true, but the SCOTUS has never taken it that far. Certainly it did not do so in Blakely or Booker, and has not done so in Booker's progeny, which are now almost seven years old.

"Moreover, in the federal system, I believe those facts must be charged by a grand jury."

I am not aware of a single case, pre- or post-Booker, so holding. If there is one, I will stand to be corrected.


Posted by: Bill Otis | Sep 24, 2011 10:03:39 AM

sorry i still say since he's not even been charged with murder let alone convicted. the moment these traitors brought it up the trial was DONE.....should have been an immediate mistrial with predjuice! this is what in a real Lawyer on EITHER side should have brought them to their feet screaming hearsay!


plus you have the clear constutionial violation. He certainly has been denied his RIGHT TO FACE HIS ACCCURSERS on the SO-CALLED murder! since no charges have ever been filed so how could his lawyers possible defend against a CHARGE THAT DIDN'T EXIST but now some idot traitor of a judge is going to consider. i would also demand a complete set of discovery to find out JUST HOW THE HELL HE EVEN KNOW ABOUT IT! and any colusion between him and the DA should bring immediate charges and their arrest!

Posted by: rodsmith | Sep 24, 2011 12:52:36 PM

hmm what no way for the lawyers to white wash my last comment? about what i figured!

Posted by: rodsmith | Sep 25, 2011 2:18:28 AM

I'd also be interested in DEJ's question about whether an as-applied Sixth-Amendment challenge was raised (and if not, why not -- you won't get a clearer case of a judge-found-fact tail wagging the sentencing dog).

Posted by: Anon2 | Sep 25, 2011 3:57:10 AM

Bill,

I don't understand what your view of the substantive holding of Booker is. I believe that the holding of the case is that the Sentencing Reform Act of 1984 was unconstitutional because it violated the Sixth Amendment by establishing binding sentencing "guidelines" where sentencing facts are not determined by a petit jury BRD. What is your understanding of the substantive holding of Booker?

Mark

P.S. Your view of the law is not helped by asserting that it is consistent with 200 years of American history or law. Neither the United States nor any of the several States have had 200 years of binding sentencing guidelines. The United States never had binding sentencing guidelines prior to 1984, and Booker was the first case in which the Supreme Court ever considered the Sixth Amendment constitutionality of that Act.

I understand your desire to hearken back to "history" to bolster your argument about what the law should be, but binding "guidelines" are too recent a phenomenon in American history to get much help from "history."

Mark

Posted by: Mark Pickrell | Sep 25, 2011 12:27:38 PM

hmm

"I'd also be interested in DEJ's question about whether an as-applied Sixth-Amendment challenge was raised (and if not, why not -- you won't get a clearer case of a judge-found-fact tail wagging the sentencing dog).

Posted by: Anon2 | Sep 25, 2011 3:57:10 AM"

There is no question NOTHING needed to be raised! This type of behavior on the part of ANYONE in the INjustice system should be SCREAMING RED FLAGS!

Posted by: rodsmith | Sep 25, 2011 2:16:16 PM

Mark,

As I understood it, Bill's comment about 200 years of history was in regard to your assertion that in order for guidelines to be binding the factors would have to be part of the charge as determined by the grand jury. I think he is absolutely right that the weight of history is firmly behind the position that sentencing factors are not part of the charged offense. And I don't see whether guidelines are binding or not having any bearing on that question.

Certainly the defendant would need to be apprised before the sentencing proceeding what factors the prosecution intends to prove, but that is a far different matter from saying that the defendant needs to be so apprised before there is even a guilty verdict. Some of the sentencing guidelines encompass conduct that occurs after indictment (such as perjured testimony at trial) so there would be no way for the grand jury to even know about it at the time they formalize the charges.

My reading of Booker is that in order to have binding guidelines and apply a guideline that increases an offenders sentencing exposure beyond that which the guilty verdict alone provides the basis for that guideline must be found BRD by a jury. It still says nothing, however, as far as I can see about what level of proof would be required of jury proceeding to create binding sentences within that base range.

Take Booker itself, where the jury verdict alone supported a sentencing range somewhere between 10 years and life (I haven't been able to find what the guidelines would require based solely on the verdict, that range is statutory). The problem with Booker was that the guidelines increased the sentencing range to 30 years to life (which I am guessing, though again don't know for sure) is significantly above whatever guideline the verdict alone would have supported.

So say that the base range is 10 to 12 years, then say that there is some factor that would raise the range to 11 to 13 years. I believe that factor would only need to be proven at a preponderance level to a jury in order for the guideline to be binding, assuming the government was willing to live with an actual sentence of between 11 and 12 years. In order to exceed the 12 year threshold in this example the prosecution would have to prove the factor BRD.

Posted by: Soronel Haetir | Sep 25, 2011 6:55:49 PM

Mark Pickrell --

"I don't understand what your view of the substantive holding of Booker is. I believe that the holding of the case is that the Sentencing Reform Act of 1984 was unconstitutional because it violated the Sixth Amendment by establishing binding sentencing "guidelines" where sentencing facts are not determined by a petit jury BRD. What is your understanding of the substantive holding of Booker?"

Booker has two parts. The first part holds that the then-mandatory Guidelines, which preserved the judge's the authority to decide for himself facts that took the sentence above the guidelines maximum, violated the Sixth Amendment as interpreted in Apprendi and Blakely.

There were two possible remedies. One was to require the judge to submit such factual questions to the jury to be decided BRD. The second part of Booker did not choose that remedy, electing instead to preserve the judge's pre-existing authority (under both pre- and post-Guidelines law), but render the Guidelines "advisory only."

P.S. I see you are not renewing your claim that the sort of facts I have mentioned must be charged in the indictment, nor -- my invitation notwithstanding -- have you pointed to a single case that adopts your view.

P.P.S. Your statement that "the holding of the case is that the Sentencing Reform Act of 1984 was unconstitutional" because of the mandatory character of the Guidelines is grossly wide of the mark. To the contrary, the Court was at pains to say that it was NOT holding the SRA unconstitutional, and that it was going to preserve its validity in all other respects by stripping out the mandatory language but nothing else.

Posted by: Bill Otis | Sep 25, 2011 8:40:36 PM

Soronel --

The point you make in your first paragraph is exactly correct.

Posted by: Bill Otis | Sep 25, 2011 8:43:35 PM

Bill,

Are you saying that you believe the SRA, in its entirety, is constitutional? I also don't understand your basis for asserting that "the Court was at pains to say that it was NOT holding the SRA unconstitutional." Unless the Court was holding that the SRA was unconstitutional, what was the basis of its substantive decision?

The Court's own statement for its holding is good enough for me: "Any fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." The SRA violated that constitutional requirement. The key reasoning of the Court's substantive decision was that the SRA imposed mandatory sentencing "guidelines," and this conclusion resulted in the Court's holding that the Act violated the Sixth Amendment.

Is your disagreement with me over the Court's holding that a defendant may be sentenced based on facts that he's admitted, or is it something else? Obviously, under Booker, a defendant may be sentenced based on facts that he admits in a guilty plea. I was never intending to cover the guilty-plea situation in my comments on this thread. Leaving aside the guilty-plea situation, do you believe a judge may establish a sentencing range based on facts not found by a jury, after Booker?

Mark

P.S. I agree that application of the Grand Jury right to the SRA requires an extension of existing law. I thought I made that plain in my prior posts.

Posted by: Mark Pickrell | Sep 25, 2011 10:22:17 PM

Mark --

"Are you saying that you believe the SRA, in its entirety, is constitutional?"

I am saying that the SRA with the mandatory nature of the Guidelines excised is constitutional. If you can cite a SCOTUS or federal appellate case holding that some other portion of it is unconstitutional, I am, again, all ears.

I'm also saying that the mandatory nature could be restored by Congress, if the Blakely-indicated changes were made. Breyer all but said this in the remedial part of Booker.

"Leaving aside the guilty-plea situation, do you believe a judge may establish a sentencing range based on facts not found by a jury, after Booker?"

Yes, and it happens all the time. For example, acceptance of responsibility and role in the offense are both key facts in establishing the sentencing range, and neither is or, to my knowledge, ever has been submitted to a jury. Likewise with uncharged conduct, just as in the case that started this thread.

Posted by: Bill Otis | Sep 25, 2011 11:02:20 PM

Bill,

It seems you agree that the SRA (which had mandatory "guidelines") was unconstitutional (at least based on the Court's decision in Booker). IMO, the justices in Booker were quite clear that the Court in that case was holding the SRA to be unconstitutional. They chose to remedy Congress' unconstitutional statute by making the Guidelines advisory.

I agree with you that, now that the Guidelines are only advisory, juries do not make findings regarding acceptance of responsibility, as well as many other guidelines factors. I believe, however, that should the Guidelines ever be made mandatory, and there is a guideline factor of, for example, "role in the offense," that fact would have to be determined by a jury (or the Supreme Court would have to have overturned Booker).

Thanks for engaging, by the way.

Mark

Mark

Posted by: Mark Pickrell | Sep 26, 2011 8:53:43 AM

Bill,

If your reluctance to say, "the SRA was unconstitutional" is because you want to be clear that the entire Act was not struck down in Booker, I understand your point. I agree (obviously, I hope) that the Court in Booker did not strike down the entire Act. When I say "the SRA was unconstitutional," I intend to point out that, for over twenty years, hundreds of thousands of defendants were sentenced under an unconstitutional system. I recognize that the Court's remedy for Congress' unconstitutional statute was to eliminate certain sections of the Act while permitting the remainder to remain in force.

Mark

Posted by: Mark Pickrell | Sep 26, 2011 9:03:31 AM

I believe, however, that should the Guidelines ever be made mandatory, and there is a guideline factor of, for example, "role in the offense," that fact would have to be determined by a jury (or the Supreme Court would have to have overturned Booker).

As my earlier post indicated I would agree with this. Where I think you have gone completely off the deep end is in thinking that the government would first have to submit that factor to a grand jury before being allowed to argue it at the sentencing hearing.

The presiding judge would likely perform some gate-keeping role, but what the standard would be before the factor would be presented to the jury I'm not sure. Scintilla of evidence? Prima facia case? I think having to prove by a preponderance to the gatekeeper for sentencing factors before being able to present to the jury is too high, especially if for some items that is the actual standard of proof.

Posted by: Soronel Haetir | Sep 26, 2011 11:31:58 AM

your all doing well to talk all this legal mumbo jumbo. But like most lawyers your missing the TREE becasue of the FOREST

in THIS CASE an individual has been found GULTIY for a crime HE HAS NEVER EVEN BEEN CHARGED WITH!

this individual HAS BEEN SENTENCED FOR A CRIME HE'S NEVER BEEN CHARGED WITH OR CONVICTED!

HOW CAN THIS POSSIBLY BE LEGAL UNDER OUR CONSTUTION!

Posted by: rodsmith | Sep 26, 2011 12:49:36 PM

Mark --

"Thanks for engaging, by the way."

You're welcome.

Bill

Posted by: Bill Otis | Sep 26, 2011 4:15:05 PM

You can be convicted of a crime not charged, I am living proof. I was acquited of all caounts and the bastard of a judge (who by the way was removed from the bench along with the entire court staff who resigned due to this mess, made up a completely new uncharged offense to gain a conviction. I was also sentenced for a crime which I was never charged with, in fact they even just recycled one of the count numbers to use on the sentence form, claiming a conviction on "count II" which had been acquitted on the record. The problem here is we are thinking these persons acting as judges have some concept of what is legal and just, the fact is they are almost all as dumb as the defendants when it comes to the law. The judge is merely a repeat what I heard someone else say kind of guy who fakes his way into making the public believe he is somhow more knowlageable than anyone else. In fact it is the judge who often is the dumbest person in the court, and the person who because of his complete lack of the law make these types of impermissible actions. In short this man has not been convicted and as a mtter of law his sentence is a nullity, as it cannot exist without a conviction by a jury, the sentence is null as there is no conviction or offense upon which to render sentence. The court is without jurisdiction to sentence him to so much as standing in the corner with a dunce hat on. This is impermissible and is a false conviction and false imprisonment, he can and should sue the idiots for damages (as the judge and court acted under color of law with out jurisdiction either subject or personal they are not immune). Maybe a few hundred million bucks out of the pockets of the state will end this type of stupid injustice, I will certainly be doing my fair share to ensure it does in my case.

Posted by: Waggs | Mar 5, 2013 3:53:25 PM

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