Fitch

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

Camille W. Damm, Assistant United States Attorney, District of Nevada, Las Vegas, NV, for the plaintiff-appellee.

Before: ALFRED T. GOODWIN and N. RANDY SMITH, Circuit Judges, and FREDERIC BLOCK, District Judge. [*]

Opinion by Judge BLOCK; Dissent by Judge GOODWIN.

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…

Opinion by Judge BLOCK; Dissent by Judge GOODWIN.

OPINION

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…

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 Bessemer City, N.C., 470 U.S. 564, 577 , 105 S.Ct. 1504 , 84 L.Ed.2d 518 (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”).

*800 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…