FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 07-10607 Plaintiff-Appellee,

D.C. No.

v.  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
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.

18138 UNITED STATES v. FITCH
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 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,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.

1Fitch 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 burden 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). 

UNITED STATES v. FITCH 18139
2011) (“The district court can properly consider trial testimony 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 sentencing.”), 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 Patricia Molano Gutierrez (Molano), a Colombian citizen. Molano

moved to England in early 1998, and in mid-1998, Fitch traveled 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 personal 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

2Fitch objected to portions of the PSR, but did not request a hearing pursuant to Federal Rule of Criminal Procedure 32(i)(2) (“The court may permit 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. 

18140 UNITED STATES v. FITCH
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 discuss Citibank’s phone call, and left a message on her answering 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,

3The record does not reflect where either Bozi or Fitch lived before

moving into the mobile home. 

UNITED STATES v. FITCH 18141
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.

18142 UNITED STATES v. FITCH
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 outstanding 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 witnesses 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 Techniques; 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.

UNITED STATES v. FITCH 18143
result of those MLATs, the FBI received witness statements

from Novin, Molano and others. None of the potential witnesses 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 disguises to conceal his identity from bank surveillance

cameras. He also admitted to cashing a fraudulent

$40,000 check after her disappearance, and concealing the money in an account that he opened under a

false name. 

On February 15, 2000, the Government indicted Fitch for violating 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

18144 UNITED STATES v. FITCH
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 laundering monetary instruments, in violation of 18 U.S.C.

§ 1956(a)(1)(B), and one count of money laundering, in violation 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 Guidelines, 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:

5Fitch 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. 

UNITED STATES v. FITCH 18145
[O]ne, Mr. Fitch failed to report his wife’s disappearance 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 whereabouts, 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 person.

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 heartland of the fraud, forgery, and false statement offenses to warrant a departure from the sentencing guidelines.” Citing

18146 UNITED STATES v. FITCH
§ 5K2.1 of the Guidelines, it considered “the dangerousness

of the defendant’s conduct, the extent to which death or serious 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 murder, of course, is a very serious offense,” the court settled on

a “fifteen level upward departure to an offense level of thirtyfive.”

Applying that offense level to Fitch’s criminal history category 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

UNITED STATES v. FITCH 18147
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 curious scenarios, and this case is a good example. The total statutory maximum for the non-violent crimes of which Fitch was

convicted is 360 years.6 Since, as a practical matter, no sentence 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 quantity 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

6A 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). 

18148 UNITED STATES v. FITCH
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 guaranteeing 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 demonstrate 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

UNITED STATES v. FITCH 18149
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.” Id. at 451 (quoting Booker, 543 U.S. at 244)

(emphasis added).

IV

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, 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) (joining “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 substantively 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 Guidelines range; to treat the Guidelines as mandatory

18150 UNITED STATES v. FITCH
instead of advisory; to fail to consider the § 3553(a)

factors; to choose a sentence based on clearly erroneous facts; or to fail adequately to explain the sentence selected, including any deviation from the

Guidelines range.

Id. at 993. Fitch does not challenge the district court’s Guidelines calculations, but argues that its sentence was procedurally 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 illogical, 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 acquitted conduct, due process may require clear and convincing

evidence of that conduct.” Treadwell, 593 F.3d at 1000. Second, “[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 omitted); see also U.S.S.G. § 6A1.3(a) (“In resolving any dispute

7The Government argues that we should review the district court’s factual 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 standard 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).

UNITED STATES v. FITCH 18151
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 reliability 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 eminently 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

18152 UNITED STATES v. FITCH
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 drastically and its ultimate sentence. See United States v. Blinkinsop, 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 transcript of Fitch’s sentencing hearing, at which the district court

explicitly recognized both the advisory nature of the Guidelines and the importance of § 3553(a). In any event, a district

court “need not tick off each of the § 3553(a) factors to demonstrate 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 consider 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 sentence, we are to give due deference to the district court’s decision 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

UNITED STATES v. FITCH 18153
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 establish 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 applicable guideline range if . . . there exists an aggravating

or mitigating circumstance, of a kind, or to a degree,

not adequately taken into consideration by the Sentencing 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 recognition 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).

18154 UNITED STATES v. FITCH
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 committed 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 consider either his incarceration on the 2000 charges or the preindictment 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 sentence for current offense to warrant consideration). We likewise 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 preBooker 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 problems while incarcerated. Although the district court did not mention either

factor at sentencing, they were prominently addressed in Fitch’s sentencing memorandum: Three paragraphs under a separate heading were

devoted to Fitch’s medical issues, and one paragraph of the three discussing his incarceration was devoted to his good behavior. We are satisfied,

in the circumstances, that the district court considered both factors. 

UNITED STATES v. FITCH 18155
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 premeditated 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 Bessemer 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 sentences 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 district courts properly appreciate the advice offered by the nowadvisory 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

18156 UNITED STATES v. FITCH
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 aggravating 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 premeditated 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.”). Section 5K2.1 states 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.” 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 knowingly risked, and the extent to which the offense level for the

offense of conviction . . . already reflects the risk of personal

UNITED STATES v. FITCH 18157
injury.” U.S.S.G. § 5K2.1. The district court could not evaluate 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 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. 

18158 UNITED STATES v. FITCH