The scenario is the sort that would make for a great law school argument about the merit of a doctrine taken to its logical extreme, except that the logical extreme actually played out before the 9th Circuit in US v. Fitch.  Via Doug Berman :

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, 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.

 Affirmed?  You bet.  This is the technically correct result based on the confluence of two separate rules, that sentences are based on the “real crime” as determined by the judge alone at sentence based upon “clear and convincing evidence,” combined with the statutory maximum provided by Congress for the offense for which he stood convicted. 

You know how all those laws say that a person can be sentence for up to 50 years?  Well, as long as the sentence doesn’t exceed 50 years, no problem even if the basis for the sentence was a murder with which he was never charged, was never proven beyond a reasonable doubt and against which the defendant was never given a proper opportunity to defend.

So instead of an effective sentence of around 3 years in a fraud/money laundering case, David Kent Fitch will do almost 22 years for murder.  Sounds wrong to the court.  Sounds wrong to me.  And yet, affirmed.

In dissent, Judge Alfred Goodwin (who has been around long enough to know) takes issue with District Court Judge James Mahan’s “clear and convincing” finding that Fitch did the dirty:

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.

But his issue isn’t so much with sentencing Fitch for a different crime than the one with which he was convicted, but that the sentencing judge’s finding wasn’t sufficiently supported.  What may be behind this dissent is that Judge Goodwin isn’t a big supporter of the idea of sentencing people for uncharged crimes, and he’s using this dissent to backdoor the existing law.

The problem is that the majority, written by EDNY Judge Frederic Block oddly enough (and not one of those crazy 9th Circuit judges the Supreme Court is always smacking around), makes clear that the is wrong but their hands are tied.  Adherence to precedent sucks.

In a comment to Doug’s post, an interesting argument is raised:

This seems to be the perfect situation to raise an as-applied Sixth Amendment challenge: without the finding of a murder, the sentence would have been unreasonable; accordingly, not submitting that essential fact to a jury BRD, as applied in this case, violated the Sixth Amendment.

Use of an as-applied challenge offers a back door to some of the most outrageous applications of law, the logical extremes that are used to shake our confidence in propositions that seem just fine when their theoretical underpinnings aren’t put to the test.  While most of us would certainly agree that an as-applied challenge should be made, and should have been used by the court to avoid this extreme, it doesn’t fix the problem of people being sentenced for uncharged crimes.

The bottom line is that it’s constitutionally offensive under the 5th and 6th Amendments to sentence a person for an uncharged crime.  You want to put ’em away forever?  Charge them. Prove the crime. Let them defend. Get the conviction.  That’s how the legal system is supposed to work, and the gymnastics that produce this absurd result are offensive and intolerable.  So what if Congress, without so much as moments thought, tacked on a top end of a thousand years in prison just in case some crime that was meant to be stopped by the law was so ridiculously horrible that it demanded a punishment that harsh. 

No, Congress didn’t put upper high ends on criminal sentences just to make sure a court had some leeway to toss in an uncharged murder.  In a vacuum, few would argue that any person should be sentenced for a crime unless guilt was proven beyond a reasonable doubt.  Yet David Kent Fitch is going to prison for murder, and the court says it can’t do anything about it.

Nice system.