United States v. Fitch

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-10607
Plaintiff-Appellee,
v.  D.C. No.
2:04-cr-262-JCM
DAVID KENT FITCH,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding

Argued and Submitted
April 14, 2011—San Francisco, California

Filed September 23, 2011

Before: Alfred T. Goodwin and N. Randy Smith,
Circuit Judges, and Frederic Block, District Judge.*

Opinion by Judge Block;
Dissent by Judge Goodwin

*The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.

18135
18138 UNITED STATES v. FITCH

COUNSEL

Mario D. Valencia, Henderson, Nevada; Beau Sterling
(argued), Sterling Law, LLC, Las Vegas, Nevada, for the
defendant-appellant.

Camille W. Damm, Assistant United States Attorney, District
of Nevada, Las Vegas, Nevada, for the plaintiff-appellee.
 UNITED STATES v. FITCH 18139
OPINION

BLOCK, District Judge:

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 Guide-
lines 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,1 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.

I

In determining Fitch’s sentence, the district court relied on
the trial record and undisputed portions of the presentence
report (PSR). Since Fitch does not challenge that reliance, see
United States v. Flonnory, 630 F.3d 1280, 1286 (10th Cir.
1
Fitch also appeals the district court’s order denying his pretrial motion
to dismiss the indictment based on Sixth Amendment speedy trial grounds.
We affirm the district court’s order because Fitch did not satisfy his bur-
den of showing that he faced the “actual restraints imposed by arrest and
holding to answer” the criminal charges at issue in this case prior to his
June 2004 indictment. See Dillingham v. United States, 423 U.S. 64, 65
(1975).
18140 UNITED STATES v. FITCH
2011) (“The district court can properly consider trial testi-
mony for sentencing purposes.”); United States v. Ameline,
409 F.3d 1073, 1085 (9th Cir. 2005) (en banc) (“[T]he district
court may rely on undisputed statements in the PSR at sen-
tencing.”), we take the facts from the same sources.2

In 1997 and 1998, Fitch spent considerable time in Bogotá,
Colombia, where he became romantically involved with Patri-
cia Molano Gutierrez (Molano), a Colombian citizen. Molano
moved to England in early 1998, and in mid-1998, Fitch trav-
eled to England to visit her.

While in England, Fitch met Maria Bozi. Romanian by
birth, Bozi was a naturalized citizen of the United Kingdom
and had lived and worked in England since 1991. Although
still romantically involved with Molano, Fitch married Bozi
in England on April 23, 1999.

A few weeks after their wedding, Fitch went to the United
States while Bozi remained in England and prepared to leave.
She sublet her apartment and shipped, sold or stored her per-
sonal property. She also opened a United States bank account,
in her name only, at Citibank. She transferred $120,000 into
the account in July 1999.

Bozi stayed with a former boyfriend, Michael Novin, for a
few weeks before she left England. She used Novin’s mailing
address for her bank and credit card statements. At the end of
July, Novin drove Bozi to the airport, where she took a flight
to Nevada to meet Fitch.

Soon after arriving in Nevada, Bozi purchased a 1994 Ford
Thunderbird. She registered the car in her name only. She also
2
Fitch objected to portions of the PSR, but did not request a hearing pur-
suant to Federal Rule of Criminal Procedure 32(i)(2) (“The court may per-
mit the parties to introduce evidence on the objections [to the PSR].”). In
any event, we do not rely on any of the disputed portions of the PSR.
 UNITED STATES v. FITCH 18141
purchased a $14,000 mobile home and leased space for it at
the Lake Shore Trailer Village in the Lake Meade National
Recreation Area. Bozi was the sole tenant on the lease and
listed herself as the sole owner of the mobile home. She and
Fitch moved into the mobile home at the end of August 1999.3

Bozi’s previously regular phone calls to her mother in
Romania and Novin in England stopped a few days after she
and Fitch moved into the mobile home. Novin last spoke to
Bozi on September 4, when she told him that she and Fitch
were going on a “mini trip” for a week or two, and that she
would call him when she returned. Bozi did not tell Novin
where she and Fitch were going.

Between September 7 and 17, 1999, Fitch withdrew a total
of $8,000 from Bozi’s Citibank account. On one occasion he
made the withdrawal while wearing a hat, sunglasses and a
fake mustache. On September 10, Fitch purchased an $8,000
cashier’s check payable to Molano.

On September 11, a Citibank representative called Novin
trying to reach Bozi regarding, in Novin’s words, “some
checks and some urgent matter.” Novin gave the caller Bozi’s
phone number in the United States.

On September 13, Fitch deposited a $40,000 check drawn
on Bozi’s Citibank account into his own account. Four days
later, Citibank froze Bozi’s account.

On September 18, Novin attempted to contact Bozi to dis-
cuss Citibank’s phone call, and left a message on her answer-
ing machine. Fitch returned Novin’s call “half-an-hour later,”
and told Novin that Bozi had “gone ahead to Vancouver
because she had found a job there.” At roughly the same time,
3
The record does not reflect where either Bozi or Fitch lived before
moving into the mobile home.
18142 UNITED STATES v. FITCH
Fitch told Gracie Silvers, a neighbor, that Bozi “went back to
England.”

Concerned that he had not heard from Bozi in several days,
Novin contacted the United States Park Service. Prompted by
Novin’s phone call, park ranger Gary Sebade visited Fitch on
September 29. Fitch told Sebade that Bozi had returned to
Romania. Earlier that same day, Fitch—calling himself
“Mario Bozi”—had used Bozi’s health insurance card and
account number to schedule hernia surgery for October 5.

On October 1, park rangers saw Fitch loading his truck at
the trailer park. They followed Fitch to a dumpster, where
they saw him discard several items. Searching the dumpster,
the rangers found a receipt, dated July 7, 1999, reflecting the
purchase of chloroform by a “Dr. David.”

Now suspecting foul play, the rangers sealed Bozi’s mobile
home with police tape. Fitch did not return to the trailer park,
but instead checked into a motel in Las Vegas. On October 9,
Bozi’s Thunderbird was stolen and the police-tape barrier was
broken.

At some point in October, Fitch attempted to sell Lorinda
Brodoski “a woman’s clothing and shoes and just personal
items for a woman [her] size.” Brodoski testified at trial that
Fitch had told her “he was selling these things because his
wife left him.” Later that month, Fitch attempted to use Bozi’s
credit card to purchase $5,000 in synthetic emeralds over the
Internet; the card was declined.

While in Las Vegas, Fitch met a man named David Lee
Krause. Fitch convinced Krause to give him his personal
information, which Fitch then used to obtain duplicates of
Krause’s social security card and birth certificate. Using those
documents, Fitch obtained a Utah driver’s license and United
States passport; both bore Fitch’s photograph, but Krause’s
name.
 UNITED STATES v. FITCH 18143
Fitch used the Krause passport to travel to London on
November 25. There, he married Molano using his assumed
identity.

Fitch re-entered the United States on February 7, 2000,
again using the Krause passport. The following day, officers
with the Henderson (Nevada) Police Department stopped
Fitch for speeding. Fitch was driving the 1994 Thunderbird
and presented the Krause driver’s licence as identification. A
routine licence plate search revealed the connection to Bozi,
prompting the officers to contact the FBI. The FBI asked
them to detain Fitch until federal agents could get to the
scene. Since the license plate search had also revealed out-
standing warrants against Fitch, the officers placed him under
arrest.

Fitch’s arrest triggered a full FBI investigation. Between
February 8 and 25, 2000, agents seized from Fitch, inter alia,
a shotgun, three rifles, a revolver, a box of shotgun shells,
numerous books,4 a passport in the name of Maria Bozi and
a “briefcase with miscellaneous documents” in Bozi’s name.
They also recovered the Krause birth certificate, passport and
driver’s licence.

In addition, the FBI sought information from potential wit-
nesses living in Romania and the United Kingdom through
Mutual Legal Assistance Treaty requests (MLATs). As a
4
Including The Modern Identity Changer; How to Make a Silencer for
a .45; The Paper Trip I, II, and III—The Master Guide to New Identity;
More Workbench Silencers; ID by Mail; High-Tech Harassment; Pipe and
Fire Bomb Designs; The Revenge Encyclopedia; 100 Ways to Disappear
and Live Free; Make ‘Em Talk! Principles of Military Interrogation; Hit
Man, A Technical Manual for Independent Contractors; Improvised
Explosives, How to Make Your Own; Improvised Radio Detonation Tech-
niques; The Death Dealer’s Manual; Deadly Brew, Advanced Improvised
Explosives; Dragon’s Touch, Weaknesses of Human Anatomy; How To
Make a Silencer for a .22; Methods of Disguise; Acquiring New ID; New
ID in America; and Kill Without Joy! The Complete How to Kill Book.
18144 UNITED STATES v. FITCH
result of those MLATs, the FBI received witness statements
from Novin, Molano and others. None of the potential wit-
nesses had any knowledge of Bozi’s whereabouts.

In March 2003, the FBI interviewed Fitch’s father. He
stated that his son had married a woman in England, but could
not recall her name. When asked about Bozi, he stated that he
had “no knowledge” of her.

To date, Bozi’s whereabouts remain unknown.

II

A. 2000 Charges

A criminal complaint filed the day after Fitch’s arrest stated
that Fitch

admitted to fraudulently taking money from BOZI’s
account by using her ATM card and wearing dis-
guises to conceal his identity from bank surveillance
cameras. He also admitted to cashing a fraudulent
$40,000 check after her disappearance, and conceal-
ing the money in an account that he opened under a
false name.

On February 15, 2000, the Government indicted Fitch for vio-
lating 18 U.S.C. § 922(g)(1), unlawful possession of a firearm
by a felon. A superseding indictment filed in June of that year
added three additional § 922(g)(1) charges, as well as two
counts of possession of false identification documents with
intent to defraud the United States, in violation of 18 U.S.C.
§ 1028(a)(4), and four counts of use of a false passport, in
violation of 18 U.S.C. § 1542.

In July 2000, Fitch pleaded guilty to all ten counts without
a plea agreement, and was sentenced in November 2000 to 97
 UNITED STATES v. FITCH 18145
months. At the time of sentencing, the FBI’s investigation
was still ongoing.

B. 2004 Charges

In June 2004, the Government indicted Fitch on nine counts
of bank fraud, in violation of 18 U.S.C. § 1344; two counts of
fraudulent use of an access device, in violation of 18 U.S.C.
§ 1029(a)(2); and two counts of attempted fraudulent use of
an access device, in violation of 18 U.S.C. § 1029(a)(2) and
(b)(1). Superseding indictments added two counts of launder-
ing monetary instruments, in violation of 18 U.S.C.
§ 1956(a)(1)(B), and one count of money laundering, in viola-
tion of 18 U.S.C. § 1957. A jury convicted Fitch of all sixteen
counts in June 2007.5

The district court sentenced Fitch on October 19, 2007. The
Government sought an upward departure from the advisory
Guidelines range of 41-51 months based on the theory that
Fitch had killed Bozi, and that her death was the means by
which he was able to commit his fraudulent scheme. For his
part, Fitch argued that he was entitled to some amount of
credit for the seven years he had been incarcerated for crimes
that were part of the same scheme.

Explicitly “considering the factors set forth in 18 USC,
Section 3553” and giving “due consideration” to the Guide-
lines, while recognizing that they were “advisory under
Booker,” the district court found that an upward departure was
warranted because “the death of Maria Bozi was the means
that Mr. Fitch used to effectuate the offenses of which he was
found guilty.” In support of that conclusion, the court relied
on six specific findings:
5
Fitch was also charged with one count of interstate transportation of a
stolen motor vehicle, in violation of 18 U.S.C. § 2312, and one count of
receipt of a stolen motor vehicle, in violation of 18 U.S.C. § 2313. These
two counts were dismissed on the Government’s motion.
18146 UNITED STATES v. FITCH
[O]ne, Mr. Fitch failed to report his wife’s disap-
pearance to the police. If you have a loved one who
disappears, I think your first reaction is you report
the disappearance to the police. Mr. Fitch didn’t do
that here.

Two, he told various stories concerning her where-
abouts, that is that she had gone to Vancouver, that
she had returned to Romania, and that she had
returned to London. So he told different individuals
that asked where she was and he would tell them one
or the other of those stories, but the evidence was
that he told various stories as to where she had gone.

Three, he tried to sell her clothing and personal
effects, including her car.

Four, he remarried shortly after her disappearance
without first seeking a divorce. He cannot be married
to be remarried, and so the first marriage has to be
terminated, and I think here it was terminated by the
death of Ms. Bozi.

Five, he had possession of her checkbook, her credit
cards, and other personal information that she would
have on—that any person would have on their per-
son.

And, six, he raided her accounts and credit cards by
deception[,] either disguises or forgery[,] and he
withdrew the daily limit of $1,000.00 from her ATM
—or from her bank’s ATM over a period of about
two weeks while wearing disguises.

The district court then reasoned that “causing death to
effectuate the fraud scheme is sufficiently outside the heart-
land of the fraud, forgery, and false statement offenses to war-
rant a departure from the sentencing guidelines.” Citing
 UNITED STATES v. FITCH 18147
§ 5K2.1 of the Guidelines, it considered “the dangerousness
of the defendant’s conduct, the extent to which death or seri-
ous injury was intended or knowingly risked [and] the extent
to which the offense level for the offense of conviction
already reflects the risk of personal injury.” Finding that “Ms.
Bozi’s death was intended” and noting that “first degree mur-
der, of course, is a very serious offense,” the court settled on
a “fifteen level upward departure to an offense level of thirty-
five.”

Applying that offense level to Fitch’s criminal history cate-
gory of III yielded a sentencing range of 210 to 262 months.
The district court concluded that the upper limit of that range
was “appropriate,” and sentenced Fitch accordingly. This
appeal followed.

III

The Sixth Amendment guarantees that a conviction must
rest “upon a jury determination that the defendant is guilty of
every element of the crime with which he is charged.” United
States v. Gaudin, 515 U.S. 506, 510 (1995). 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.

[1] In Apprendi v. New Jersey, 530 U.S. 466 (2000), the
Supreme Court relegated the jury’s role after conviction to
determining “any fact that increases the penalty for a crime
beyond the prescribed statutory maximum.” Id. at 489. In
United States v. Booker, 543 U.S. 220 (2005), it held that the
mandatory Guidelines regime set the functional equivalent of
statutory maximums, but that the remedy for the resulting
Sixth Amendment violation was to increase the discretion of
the sentencing judge by making the Guidelines advisory. See
id. at 233 (“We have never doubted the authority of a judge
18148 UNITED STATES v. FITCH
to exercise broad discretion in imposing a sentence within a
statutory range.”).

[2] Even before Apprendi and Booker, it was clear that a
sentencing judge can consider facts that a jury cannot. Thus,
the judge can increase the defendant’s sentence based—as
here—on uncharged conduct, see Witte v. United States, 515
U.S. 389 (1995), and even acquitted conduct, United States v.
Watts, 519 U.S. 148 (1997). Such increases “do not punish a
defendant for crimes of which he was not convicted, but
rather increase his sentence because of the manner in which
he committed the crime of conviction.” Watts, 519 U.S. at
154.

While the respective fact-finding roles of the judge and jury
are based on constitutional principles, it is Congress that
assigns the roles through its power to fix statutory maximums.
The unfettered exercise of that power has created some curi-
ous scenarios, and this case is a good example. The total stat-
utory maximum for the non-violent crimes of which Fitch was
convicted is 360 years.6 Since, as a practical matter, no sen-
tence would exceed that limit, the district court, and not the
jury, had to decide whether Fitch killed Bozi as a means to
commit his crimes. By contrast, a defendant charged with
selling heroin is entitled to a jury determination of the quan-
tity of heroin sold because that fact increases the statutory
maximum for the crime. See 21 U.S.C. §§ 841(b)(1)(A) (life
for distribution of one kilogram or more), 841(b)(1)(B) (40
years for distribution of 100 grams or more), 841(b)(1)(C) (20
years for distribution simpliciter). In other words, Congress is
6
A single count of bank fraud carries a maximum penalty of 30 years’
imprisonment. See 18 U.S.C. § 1344. The other relevant maximums are 10
years for access-device fraud and attempted access-device fraud, see id.
§ 1029(a)(2); 20 years for laundering monetary instruments, see id.
§ 1956(a)(1)(B); and 10 years for money laundering, see id. § 1957. The
district court could have sentenced Fitch consecutively on each count with
no Sixth Amendment implications. See Oregon v. Ice, 555 U.S. 160, 172
(2009).
 UNITED STATES v. FITCH 18149
free, under current Sixth Amendment jurisprudence, to say
that a jury must decide how much heroin a defendant sold, but
that a judge may decide the far more significant question of
whether Fitch murdered his wife as a means to commit his
crimes.

The Booker Court was well aware that “once determinate
sentencing had fallen from favor, American judges commonly
determined facts justifying a choice of a heavier sentence on
account of the manner in which particular defendants acted.”
543 U.S. at 236. It was legislatively prescribed sentencing
enhancements, like those reflected in the Guidelines, that had
changed the fact-finding dynamics: “As the enhancements
became greater, the jury’s finding of the underlying crime
became less significant. And the enhancements became very
serious indeed.” Id.

It was this “new set of circumstances” that first animated
the Supreme Court “to address the question how the right of
jury trial could be preserved, in a meaningful way guarantee-
ing that the jury would still stand between the individual and
the power of the government under the new sentencing
regime.” Id. at 237. Its answer was “not motivated by Sixth
Amendment formalism, but by the need to preserve Sixth
Amendment substance.” Id. And it did that in Apprendi by
embracing the statutory maximum set by Congress as the line
of demarcation between the roles of judge and jury.

To date, only one Supreme Court justice has railed against
this marginalization of the jury’s role. In Gall v. United
States, 552 U.S. 38 (2007), Justice Scalia expressed his view
that “the door . . . remains open for a defendant to demon-
strate that his sentence, whether inside or outside the advisory
Guidelines range, would not have been upheld but for the
existence of a fact found by the sentencing judge and not by
the jury.” Id. at 60 (Scalia, J., concurring). And dissenting
from the denial of a petition for certiorari in Marlowe v.
United States, 129 S. Ct. 450 (2008), he opined that “[a]ny
18150 UNITED STATES v. FITCH
fact (other than a prior conviction) which is necessary to sup-
port 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 rea-
sonable doubt.” Id. at 451 (quoting Booker, 543 U.S. at 244)
(emphasis added).

IV

It is problematical whether much of the Sixth Amend-
ment’s substance has been preserved in the present case,
given the 360-year statutory maximum Fitch faced. It none-
theless 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, and that “the defendant
has no right to a jury determination of the facts that the judge
deems relevant.” Booker, 543 U.S. at 233; see also United
States v. Treadwell, 593 F.3d 990, 1017 (9th Cir. 2010) (join-
ing “the Fourth, Sixth, and Seventh Circuits in holding that
[Justice Scalia’s] argument is too creative for the law as it
stands” (citations and internal quotation marks omitted)).

[3] The only restrictions that the Supreme Court has
imposed on a district court’s power to impose a sentence less
than the statutory maximum are that the sentence must not be
tainted by procedural error, and that it must not be substan-
tively unreasonable. See Rita v. United States, 551 U.S. 338,
341 (2007). We address in turn Fitch’s contentions that his
sentence was both.

A. Procedural Error

We set forth the standard for determining procedural error
in United States v. Carty, 520 F.3d 984 (9th Cir. 2008):

It would be procedural error for a district court to fail
to calculate—or to calculate incorrectly—the Guide-
lines range; to treat the Guidelines as mandatory
 UNITED STATES v. FITCH 18151
instead of advisory; to fail to consider the § 3553(a)
factors; to choose a sentence based on clearly errone-
ous facts; or to fail adequately to explain the sen-
tence selected, including any deviation from the
Guidelines range.

Id. at 993. Fitch does not challenge the district court’s Guide-
lines calculations, but argues that its sentence was procedur-
ally erroneous in all other respects.

1. Factual Findings

The factual findings underlying a district court’s sentence
are reviewed for clear error. See United States v. Showalter,
569 F.3d 1150, 1159 (9th Cir. 2009). “In order to reverse a
district court’s factual findings as clearly erroneous, we must
determine that the district court’s factual findings were illogi-
cal, implausible, or without support in the record.” United
States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010).7

[4] In applying that standard of review, we bear in mind
two things. First, in this circuit, “where a severe sentencing
enhancement is imposed on the basis of uncharged or acquit-
ted conduct, due process may require clear and convincing
evidence of that conduct.” Treadwell, 593 F.3d at 1000. Sec-
ond, “[a] sentencing judge may appropriately conduct an
inquiry broad in scope, largely unlimited as to the kind of
information he may consider, or the source from which it may
come.” United States v. Vanderwerfhorst, 576 F.3d 929, 935
(9th Cir. 2009) (internal alteration and quotation marks omit-
ted); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute
7
The Government argues that we should review the district court’s fac-
tual findings for plain error—not clear error—because Fitch failed to
object below. See United States v. Santiago, 466 F.3d 801, 803 (9th Cir.
2006) (“[A]bsent specific objection by the defendant, the plain error stan-
dard controls.”). Because we find that the district court did not commit
clear error, we need not reach the question whether it committed plain
error. See United States v. Alonso, 48 F.3d 1536, 1546 n.5 (9th Cir. 1995).
18152 UNITED STATES v. FITCH
concerning a factor important to the sentencing determination,
the court may consider relevant information without regard to
its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliabil-
ity to support its probable accuracy.”).

[5] Of the district court’s six findings of fact, see supra at
18146, Fitch challenges three: that he failed to report Bozi’s
disappearance to the police; that he married Molano without
first seeking a divorce from Bozi; and that he tried to sell
Bozi’s clothing, personal effects and car. The first two of
those facts are undisputed. The third was established through
Brodoski’s testimony at trial; the district court did not clearly
err in being clearly convinced of its veracity.

[6] Fitch also challenges the ultimate inferences that the
district court drew from all six findings: that “Mr. Fitch
caused Ms. Bozi’s death,” and that “the death of Maria Bozi
was the means that Mr. Fitch used to effectuate the offenses
of which he was found guilty.” But we cannot remotely say
that those interferences are “illogical, implausible, or without
support in the record.” Spangle, 626 F.3d at 497. The district
court was confronted with a defendant who had failed to
report his wife’s disappearance, gave several inconsistent—
and, in light of his possession of her passport, implausible—
statements as to her whereabouts, and tried to dispose of her
clothes and personal effects. He then used her bank account,
credit card and health insurance—sometimes through forgery
and deception—and eventually married a former girlfriend
while still ostensibly married to his missing wife. It was emi-
nently reasonable for the district court to infer that Bozi was
dead, that Fitch knew she was dead, and that he had brought
about her death in order to pillage her assets.

2. Explanation of Sentence

[7] Fitch argues that the district court did not adequately
explain why it chose a 15-level upward departure and why it
 UNITED STATES v. FITCH 18153
sentenced him to the top of the resulting Guidelines range.
We disagree. We find the district court’s references to the
seriousness of Fitch’s conduct and resulting harm to Bozi
more than adequate to explain both its decision to depart dras-
tically and its ultimate sentence. See United States v. Blinkin-
sop, 606 F.3d 1110, 1114 (9th Cir. 2010) (“Adequate
explanation not only derives from the judge’s pronouncement
of the sentence, but may also be inferred from the PSR or the
record as a whole.” (citation, internal quotation marks and
alteration omitted)).

3. Treatment of the Guidelines and § 3553(a) Factors

[8] Fitch’s arguments that the district court treated the
guidelines as mandatory and failed to consider the factors set
forth in § 3553(a) are demonstrably false based on the tran-
script of Fitch’s sentencing hearing, at which the district court
explicitly recognized both the advisory nature of the Guide-
lines and the importance of § 3553(a). In any event, a district
court “need not tick off each of the § 3553(a) factors to dem-
onstrate it has considered them.” Carty, 520 F.3d at 992. Our
review of the record satisfies us that the district court took
great pains to fashion its sentence in light of the factors.

B. Substantive Reasonableness

“In determining substantive reasonableness, we are to con-
sider the totality of the circumstances, including the degree of
variance for a sentence imposed outside the Guidelines
range.” Carty, 520 F.3d at 993. “For a non-Guidelines sen-
tence, we are to give due deference to the district court’s deci-
sion that the § 3553(a) factors, on a whole, justify the extent
of the variance.” Id. (internal quotation marks omitted). “We
may not reverse just because we think a different sentence is
appropriate.” Id.

1. Bozi’s Murder

Fitch principally argues that the district court’s sentence
was unreasonable because it was based on a consideration of
18154 UNITED STATES v. FITCH
an improper factor, namely Bozi’s murder. He first argues
that the district court should not have considered that factor
because there was no clear and convincing evidence to estab-
lish it. This is simply a recapitulation of his principal claim of
procedural error, and we have already addressed it as such.

[9] Given that Fitch’s involvement in Bozi’s death was
factually established, the district court certainly was not
unreasonable in giving it great weight. Guidelines
§ 5K2.0(a)(1) states that

[t]he sentencing court may depart from the applica-
ble guideline range if . . . there exists an aggravating
or mitigating circumstance, of a kind, or to a degree,
not adequately taken into consideration by the Sen-
tencing Commission in formulating the guidelines
that, in order to advance the objectives set forth in
[§ 3553(a)], should result in a sentence different
from that described.

Death is one such aggravating circumstance. See id. § 5K2.1.
The Guidelines further state that “a substantial increase may
be appropriate if the death was intended or knowingly risked
or if the underlying offense was one for which base offense
levels do not reflect an allowance for the risk of personal
injury, such as fraud.” Id.

[10] Having determined that Fitch intended to murder
Bozi, it was reasonable for the district court to substantially
increase Fitch’s sentence. Although the “departure” language
of the Guidelines is no longer apt in the post-Booker world,
a district court is still entitled to consider their explicit recog-
nition that a Guidelines sentence may not adequately account
for behavior as atypical and extreme as murder. See Booker,
543 U.S. at 245 (sentencing courts still required to consider
Guidelines).
 UNITED STATES v. FITCH 18155
We note, moreover, that the increase was well short of the
Guidelines range for both first-degree murder (life) and
second-degree murder (324-405 months) for someone in
Fitch’s criminal history category. Finally, while all parties
agree that the effect of uncharged conduct on Fitch’s sentence
was unusually weighty, it is not unprecedented. See United
States v. Mayle, 334 F.3d 552, 565, 567-68 (6th Cir. 2003)
(upholding 23-level departure based on uncharged murders of
defendant’s identity-theft victims); United States v. Vernier,
335 F. Supp. 2d 1374, 1376-77 (S.D. Fla. 2004) (15-level
departure for uncharged murder by which defendant commit-
ted access device fraud), aff’d, 152 F. App’x 827 (11th Cir.
2005).8

2. Prior Incarceration and Pre-Indictment Delay

[11] Fitch also argues that the district court failed to con-
sider either his incarceration on the 2000 charges or the pre-
indictment delay on the 2004 charges. The district court found
that the judge who sentenced Fitch on the 2000 charges had
not taken the facts driving the second sentence (most notably
Bozi’s death) into account. Since we see no basis on which to
question that finding, we hold that the district court was not
required to consider the prior incarceration. Cf. U.S.S.G.
§ 5G1.3 (prior offense must be for conduct that increases sen-
tence for current offense to warrant consideration). We like-
wise hold that pre-indictment delay was not a relevant
sentencing factor.9
8
It should be noted that both Mayle and Vernier date from the pre-
Booker era, when departures were judged by far stricter rules than the
“reasonableness” standard we apply today.
9
In his reply brief, Fitch alludes to his good behavior and medical prob-
lems while incarcerated. Although the district court did not mention either
factor at sentencing, they were prominently addressed in Fitch’s sentenc-
ing memorandum: Three paragraphs under a separate heading were
devoted to Fitch’s medical issues, and one paragraph of the three discuss-
ing his incarceration was devoted to his good behavior. We are satisfied,
in the circumstances, that the district court considered both factors.
18156 UNITED STATES v. FITCH
V

For the foregoing reasons, the district court’s judgment is

AFFIRMED.

GOODWIN, Circuit Judge, dissenting:

While the evidence of aggravated criminal exploitation of
the victim here would support an upward departure from the
Sentencing Guidelines, I cannot agree with the majority that
there is clear and convincing evidence in the record upon
which the district court could find that Fitch committed pre-
meditated murder in connection with the fraud charged. See
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009)
(en banc) (factual findings are clearly erroneous when they
are “without ‘support in inferences that may be drawn from
the facts in the record,’ ” quoting Anderson v. City of Besse-
mer City, N.C., 470 U.S. 564, 577 (1985)). I would therefore
remand this case for resentencing. See United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc) (holding that it
would be procedural error for a court “to choose a sentence
based on clearly erroneous facts”).

Despite the advisory nature of the Sentencing Guidelines,
the expanding volume of appeals from federal criminal sen-
tences cautions us not to affirm a significant upward departure
from them simply because the defendant deserves it. See
United States v. Staten, 466 F.3d 708, 710 (9th Cir. 2006)
(“[A]s we have repeatedly held in the aftermath of Booker, we
continue to have a duty to review district courts’ required
application of the Guidelines. We do so to assure that the dis-
trict courts properly appreciate the advice offered by the now-
advisory Guidelines before factoring that advice into their
determination, under 18 U.S.C. § 3553(a), of the appropriate
sentence.”). A sentencing order giving consideration to the
 UNITED STATES v. FITCH 18157
willful and systematic exploitation of the victim’s personal
possessions, her absence, and her helplessness could support
a significant departure from the Guidelines range—whether
she is dead or alive. See U.S.S.G. § 5K2.0. (stating that an
upward departure is warranted where “there exists an aggra-
vating circumstance, of a kind, or to a degree, not adequately
taken into consideration by the Sentencing Commission in
formulating the guidelines”). There is sufficient evidence of
Fitch’s involvement with Bozi’s disappearance to support
such a departure from the initial Guidelines calculation.

The district court, however, increased Fitch’s sentence by
seventeen years under § 5K2.1 based on a finding of premedi-
tated murder. Due to the severity of the increase, this finding
must be based on clear and convincing evidence. See United
States v. Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010)
(“[W]here a severe sentencing enhancement is imposed on the
basis of uncharged or acquitted conduct, due process may
require clear and convincing evidence of that conduct.”). Sec-
tion 5K2.1 states that “a substantial increase may be appropri-
ate if the death was intended or knowingly risked or if the
underlying offense was one for which base offense levels do
not reflect an allowance for the risk of personal injury, such
as fraud.” While the district court stated there was clear and
convincing evidence to support the application of this section,
it cited no evidence that Bozi was dead, much less how she
died, or, assuming that Bozi was dead because of the elapsed
time since she was last known to be alive, the degree of
Fitch’s involvement in her disappearance.

The sentencing court could only assume that Bozi was dead
from the circumstances of her unexplained disappearance.
Indeed, her death was not a necessary predicate to the fraud
committed. Yet “[t]he extent of the [sentence] increase should
depend on the dangerousness of the defendant’s conduct, the
extent to which death or serious injury was intended or know-
ingly risked, and the extent to which the offense level for the
offense of conviction . . . already reflects the risk of personal
18158 UNITED STATES v. FITCH
injury.” U.S.S.G. § 5K2.1. The district court could not evalu-
ate the dangerousness of Fitch’s conduct or the extent to
which Bozi’s presumed death was intended or knowingly
risked because the record is silent on these factors.

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 causa-
tive, 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 cer-
tainly no clear and convincing evidence of premeditated mur-
der. 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 respect-
fully dissent.