Sentencing Guidelines/Mandatory Minimums and Charging How the USSGs, Mandatory Minimums and Other Statutory Provisions May Affect Charging and Plea Considerations

Some Violations with Statutory Minimums Aggravated Sexual Abuse of a Child (18 U.S.C. Section 2241(c)) Minimum Mandatory of 30 years, up to life. Possession of Methamphetamine (21 U.S.C. Section 841), 50 grams of actual - - 10 years. 5 grams of actual - - 5 years. Possessing, Brandishing or Discharging a Firearm During and in Relation to Drug Trafficking or a Crime of Violence (18 U.S.C. Section 924(c)). Possession - - 5 years consecutive; Brandishing - - 7 years consecutive; Discharging - - 10 years consecutive. Armed Career Criminal Act (18 U.S.C. Section 924(e)) - - 15 years to life.

Other Crimes Relevant to IC Domestic Assault by a Habitual Offender (18 U.S.C. Section 117) Domestic Assault in SMTJ with two prior convictions for assault, sexual abuse, or serious violent felony against a spouse or intimate partner or against a child or or in the care of the person committing the domestic assault. Punishable by up to 5 years imprisonment. If serious bodily injury - - up to 10 years.

Other Crimes (Cont’d) Assault Resulting in Substantial Bodily Injury of Spouse, Intimate Partner or Child under 16. (18 U.S.C. Section 113(a)(7)). Requires temporary but substantial disfigurement or temporary but substantial loss or impairment of the function of a bodily member, organ or mental faculty. Punishable by up to 5 years imprisonment. Assault of a Spouse, Intimate Partner or Dating Partner by Strangling Suffocating or Attempting to . . . (18 U.S.C. Section 113(a)(8)). Punishable by up to 10 years imprisonment.

Other Crimes (Cont’d) These Offenses Require a Predicate Felony under 18 U.S.C. Section 113 in order to be available as a lesser included offense: Assault by Striking, Beating or Wounding (18 U.S.C. Section 113(a)(4)). Punishable by up to one year imprisonment. Simple Assault (18 U.S.C. Section 113(a)(5)). Punishable by up to six months imprisonment.

United States Sentencing Guidelines At one time the USSGs were compulsory but now are discretionary.

Some Common IC Offenses and Base Offense Levels Second Degree Murder - - 38 Involuntary Manslaughter (vehicular) - - 22 Assault Resulting in Serious Bodily Injury - - 19 Simple Assault - - 7 Assault by Strangling or Suffocating - - 17 Sexual Abuse of a Child - - 38 Aggravated Sexual Abuse - - 30 Theft of $6,500 or less - - 6 Burglary of a Residence - - 17

Some Common Adjustments Hate Crime +3 Restraint of Victim +2 Aggravating Role +2 Mitigating Role - 2 Abuse of Position of Trust or Skill +2 Obstruction of Justice +2 Commission of Offense While on Release +3 Acceptance of Responsibility -2 or -3

Criminal History 3 Points for every sentence over 13 months 2 Points for sentences over 60 days. 2 Points if offense was committed while under any criminal justice sentence 1 Point for every prior sentence from a crime of violence not otherwise counted.

So How Do Mandatory Minimums and Sentencing Guidelines Affect Charging or Plea Considerations? If your Tribe has expanded jurisdiction under TLOA or VAWA, then the AUSA and the Tribal Prosecutor should work together to determine the most appropriate jurisdiction for prosecution.

Are Mandatory Minimums Used to Coerce a Plea? No. A charge should never be filed simply to coerce a plea. Charges should only be filed where appropriate under the facts and circumstances.

Is It Ever Appropriate to Plead a Defendant to a Lesser Included Offense? Yes. Where facts and circumstances dictate, a plea agreement to a lesser included offense may be an effective way to provide justice for the victim, community and defendant in a given case.

How Are Sentencing Guidelines Used in the Plea Negotiation Process? The parties can agree or stipulate to the applicability or non-applicability of certain guidelines. They can agree to reduction for acceptance of responsibility. They can also agree to floors or ceilings on the guideline ranges.

Are Tribal Convictions Important in Determining Sentence? Yes. With TLOA and VAWA and the due process afforded to defendants in tribal court pursuant to those acts, many previously uncounted tribal convictions can now be considered in the defendant’s criminal history category determination. Moreover, numerous tribal convictions can provide a basis for the court to depart upward if it finds that the defendant’s criminal history category substantially underrepresents the defendant’s criminal history or likelihood that the defendant will commit other crimes.

Questions? Thank you, Patrick Schneider, AUSA/Tribal Liaison