Criminal Defense Lawyers

South Dakota Federal Sentencing Guidelines

Understanding South Dakota Federal Sentencing Guidelines

If you or a loved one is facing federal criminal charges in South Dakota, one of your top concerns is likely: what kind of sentence am I looking at if convicted? While every case is unique, the South Dakota Federal Sentencing Guidelines provide a framework that judges use to determine an appropriate sentence. Let’s break it down step-by-step so you know what to expect.

What are the Federal Sentencing Guidelines?

The Federal Sentencing Guidelines were created in 1987 to provide a uniform sentencing policy for federal courts across the country. The goal was to make sentences more consistent and proportional to the crimes committed1. While the guidelines are no longer mandatory after the 2005 Supreme Court case United States v. Booker, they still play a major role. Judges must calculate the guideline range and consider it when determining a sentence18. In most cases, sentences still fall within the guideline range.

How Do the Guidelines Work?

The guidelines provide a range of months that a defendant should be sentenced to based on two main factors:

1. The seriousness of the offense (offense level)
2. The defendant’s criminal history (criminal history category)

Step 1: Determine the Offense Level

The first step is to determine the offense level for the crime, from 1-43, with 43 being the most serious12. Each federal crime has a base offense level assigned to it. For example:

• Trespassing = Level 4
• Kidnapping = Level 3218

The base offense level can then be increased or decreased based on specific characteristics of the offense, the defendant’s role, and other adjustments. Some common factors that affect the offense level:

• Amount of drugs involved in a drug trafficking offense
• Amount of loss in a fraud offense
• If a dangerous weapon was used
• If the victim was vulnerable (e.g. elderly)
• If the defendant was a minimal/minor participant
• Obstruction of justice
• Acceptance of responsibility (pleading guilty)1218

After all the adjustments are applied, you have the final offense level. The higher the level, the longer the potential sentence.

Step 2: Determine the Criminal History Category

Next, the defendant is placed into one of six criminal history categories based on their prior convictions and the length of prior sentences:

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• Category I = 0-1 points (least serious)
• Category II = 2-3 points
• Category III = 4-6 points
• Category IV = 7-9 points
• Category V = 10-12 points
• Category VI = 13+ points (most serious)13

Points are assigned as follows:

• Each prior sentence of 60+ days = 2 points
• Each prior sentence of 13-59 months = 3 points
• Each prior sentence of 60+ months = 3 points13

There are additional points added for committing the instant offense while under any criminal justice sentence or shortly after release. The more extensive the criminal history, the higher the criminal history score and category.

Step 3: Determine the Guideline Range

The final offense level and criminal history category are plotted on the sentencing table to determine the guideline range, in months of imprisonment15. For example, an offense level of 22 and criminal history category of III yields a guideline range of 51-63 months15. The judge may sentence anywhere within that range.

Departures and Variances

In some cases, the judge may depart from the guideline range and impose a sentence that is higher or lower than the range. This is allowed if the judge finds that there are aggravating or mitigating circumstances not adequately considered by the guidelines18.Some reasons a judge may depart:

• Substantial assistance to authorities (5K1.1)
• Coercion and duress (5K2.12)
• Diminished capacity (5K2.13)
• Voluntary disclosure of offense (5K2.16)15

After U.S. v Booker, judges also have more discretion to vary from the guidelines based on the factors in 18 U.S.C. § 3553(a), even if a departure is not warranted. The 3553(a) factors include:

• The nature and circumstances of the offense
• The history and characteristics of the defendant
• The need for the sentence to reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and provide the defendant with needed training/treatment
• The kinds of sentences available
• The sentencing guideline range
• The need to avoid unwarranted sentencing disparities
• The need to provide restitution to victims18

Mandatory Minimums

For certain offenses, Congress has set mandatory minimum sentences that the judge must impose regardless of the guideline range. Drug trafficking, firearms offenses, and child exploitation crimes often carry mandatory minimums. For example, a first-time drug offense involving 50 grams or more of methamphetamine requires a mandatory minimum sentence of 10 years6. Even if the guideline range is lower, the judge must impose at least 10 years.

South Dakota State Sentencing vs. Federal Sentencing

It’s important to understand that the Federal Sentencing Guidelines only apply to federal crimes prosecuted in federal court. South Dakota has its own separate sentencing scheme for felonies committed under state law.South Dakota divides felonies into nine classes, from Class A to Class 6 felonies. Each class has a maximum sentence:

• Class A = Death or life (for 1st degree murder)
• Class B = Life
• Class C = Life
• Class 1 = 50 years
• Class 2 = 25 years
• Class 3 = 15 years
• Class 4 = 10 years
• Class 5 = 5 years
• Class 6 = 2 years15

Some state offenses, like drug possession and distribution, are also prosecuted federally. In those cases, federal law and the Federal Sentencing Guidelines will apply, not state law.

Practical Sentencing Advice

Now that you understand the basics of how federal sentencing works, let’s talk about some practical tips if you’re facing sentencing.

1. Understand Your Guideline Range

Work closely with your attorney to make sure you understand how your guideline range is calculated. Review the PSR (pre-sentence investigation report) carefully. Don’t be afraid to ask questions!

2. Be Proactive

Sentencing doesn’t start the day of the hearing. Everything you do from the beginning of the case can have an impact. Some tips:

• Be honest and cooperative with the probation officer conducting the PSR
• If you have substance abuse or mental health issues, seek treatment
• Gather character reference letters from family, friends, employers, etc.
• If possible, pay restitution to victims upfront
• Consider writing a sincere letter to the judge expressing remorse and taking responsibility

3. Prepare a Strong Sentencing Memorandum

Your attorney should file a sentencing memorandum about 7-10 days before sentencing arguing for the lowest appropriate sentence. Some key things to include:

• Mitigating factors about you and the offense
• Your personal history and characteristics (education, employment, family, health, military service, charitable works, etc.)
• Post-offense rehabilitation efforts
• Sentencing disparity arguments (what sentences similarly-situated defendants have received)
• The 3553(a) factors and how they support a lower sentence

4. Consider Negotiating Plea Terms

If you’re pleading guilty, work with your attorney to try to negotiate favorable plea terms with the prosecutor. Some possibilities:

• An agreed-upon sentence or sentencing range
• Dismissal of certain charges
• A lesser included offense
• Avoiding a mandatory minimum
• Factual stipulations to avoid guideline enhancements
• An agreement not to oppose a downward departure/variance

Of course, every case is different and prosecutors may not always agree to negotiate. But it never hurts to ask!

5. Prepare for the Sentencing Hearing

The sentencing hearing is your opportunity to present your best arguments for a lower sentence to the judge. Your attorney will do most of the talking, but you may have an opportunity to speak too.To prepare:

• Review the PSR and sentencing memo with your attorney
• Discuss the judge’s reputation and sentencing tendencies
• Prepare a statement to the judge if you plan to speak (keep it brief, honest and sincere)
• Have a support person attend the hearing if allowed
• Dress appropriately in business attire
• Be respectful to the judge, prosecutor and probation officer

Remember, the judge has discretion to sentence you below (or above) the guideline range. Help make the best possible case for yourself.