Important Ninth Circuit Federal Sentencing Guidelines Opinion (Uncharged Conduct)

David Kent Fitch was convicted by a jury of bank fraud, fraudulent use of an access device, attempted fraudulent use of an access device, laundering monetary instruments, and 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. A three-judge panel of the Ninth Circuit affirmed in a split decision.

The dissenting judge would have reversed on the ground that there was not clear and convincing evidence that Fitch murdered his wife. The majority concluded that the district court's decision must be affirmed under current precedents binding on the Court. But even the majority opinion expressed concerns about the outcome in this case:

As the Supreme Court has made clear, however, once there is a conviction, the sentencing judge is possessed of extraordinarily broad powers to find the facts that will drive the sentence. This case is a stark example of the diminishment of the role of the jury that can result when those powers reach their outer limits....

It is problematical whether much of the Sixth Amendment’s substance has been preserved in the present case, given the 360-year statutory maximum Fitch faced. It nonetheless remains the law that the sentencing judge has the power to sentence a defendant based upon facts not found by a jury up to the statutory maximum....

The majority found it "odd," for example, that the district judge, and not the jury, had to decide whether Fitch killed his wife as a means to commit his crimes. Whereas, by contrast, a defendant charged with selling heroin is entitled to a jury determination of the quantity of heroin sold because that fact increases the statutory maximum for the crime.

Mario Valencia (lead counsel) wrote the briefs and Beau Sterling argued the case on behalf of Mr. Fitch. They are evaluating whether to seek en banc reconsideration of the Court's decision. USA v. Fitch, 9th Cir. Docket 07-10607 (September 23, 2011) (Opinion).

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