Don’t get charged in federal court—federal sentencing mini-trial madness

The hallmarks of the American judicial system: the jury, innocent until proven guilty, and evidence proving guilt beyond a reasonable doubt may not have a full place in the Federal court system.  You receive these protections at your initial trial, but then at the sentencing hearing—they go away.  At sentencing, a judge must use the Federal sentencing guidelines, which contain various enhancements.  If you have prior convictions, used a weapon in the commission of the crime, etc. then your sentence is enhanced.  An example of the federal sentencing guideline is here.  
So, you go to trial, and let’s say they prove you committed fraud and you are looking at a statutory minimum of 2 years.  The judge during the sentencing hearing examines the evidence and determines if one of the enhancing factors applies.  However, the existence of the factor does not have to be proven at trial, examined by a jury or proven beyond a reasonable doubt.  If the sentencing enhancement is not extreme—a preponderance of the evidence is the right standard.  If the enhancement is a substantial increase, the judge must find clear and convincing evidence (a lower standard than reasonable doubt).
How does this play out?  In a case written by the 9th Circuit Court of Appeals this Friday, David Kent Fitch was a shady guy doing shady things.  The US Attorney’s office threw everything at him.  Ultimately he was convicted by a jury of bank fraud and money laundering.  It turns out that right before the bank fraud took place, Fitch’s wife disappeared.   The body was never found and there was no proof that he killed her.  He was never charged with her murder.  
At sentencing, the judge enhanced Fitch’s prison term from two years to 20.  He found by clear and convincing evidence that Fitch murdered his wife in the first degree.  The judge cited that he failed to report her disappearance, he told conflicting stories about her whereabouts, he tried to sell her car, he got married when she was still missing (and without getting divorced), he had her checkbook and credit cards, and he used her credit cards after she disappeared.  
The 9th Circuit said that’s all okay.  I think the dissent got it right.  There is no proof that it was first degree murder.  Maybe there is enough for voluntary manslaughter, but not first degree murder.  This is what the dissent had to say, 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.”
The moral of the story is don’t commit Federal crimes, because due to crazy sentencing procedures you have diminished due process rights compared to those available in state court.
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