United States v. Fitch, 2011 U.S. App. LEXIS 19499

Fitch was convicted by a jury of multiple bank fraud, access-device fraud, laundering, and money laundering charges with a Guideline range of 41–51 months.
At sentencing, the district court found by clear and convincing evidence that Fitch murdered his wife, Maria Bozi, and used her death to facilitate the fraud, and imposed 262 months.
The court relied on six factual findings about Fitch’s handling of Bozi’s disappearance and his conduct during the housing and theft scheme to justify a fifteen-level upward departure.
The district court treated the death as an aggravating circumstance under 5K2.1 and used it to depart beyond the advisory Guidelines, applying an offense level of 35 with criminal history III.
Fitch challenged the sentence as procedurally errorful and substantively unreasonable, arguing the court relied on uncharged conduct and on a murder finding with insufficient evidentiary support.
The majority affirmed the sentence; Judge Goodwin dissented, arguing there was no clear and convincing evidence of premeditated murder and remand was appropriate.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred procedurally in departing based on uncharged murder	Fitch contends evidence of Bozi’s murder was not clear and convincing	Court properly relied on six findings and record	No procedural error; departure supported by record
Whether there is clear and convincing evidence of premeditated murder justifying a 5K2.1 departure	Evidence insufficient to prove premeditated murder	Court reasonably inferred death and intent from conduct	Court’s inference was reasonable; departure upheld
Whether the 15-level departure for death is substantively reasonable under 3553(a)	Disproportionate and based on uncharged conduct	Deference owed to district court’s §3553(a) balancing	Reasonable under totality of circumstances; within permissible variance
Whether prior incarceration and pre-indictment delay were properly considered	These factors should have influenced sentence	District court properly declined to consider them	Not required to consider prior incarceration or pre-indictment delay
Whether the district court adequately explained the sentence	Explanation was inadequate for drastic departure	Record and PSR support adequate explanation	Explanation adequate; no reversible procedural error

United States v. Flonnory, 630 F.3d 1280 (10th Cir. 2011) (district court may rely on trial testimony for sentencing purposes when appropriate)
United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc; undisputed PSR statements may be used at sentencing)
United States v. Gaudin, 515 U.S. 506 (1995) ( Sixth Amendment requires jury trial for elements; sentencing facts may be found by judge)