Whether acquitted conduct or dismissed conduct pursuant to a plea can be argued and considered at sentencing

QUESTIONS PRESENTED 1.) WHETHER THE SIXTH AND FOURTEENTH AMENDMENTS PERMIT GREATER INCLUDED OFFENSES AND CONDUCT THAT HAS BEEN ACQUITTED BY A JURY, OR DISMISSED PURSUANT TO A PLEA AGREEMENT AND FACTUAL BASIS UNDER SDCL § 23A-7-4 (Fed.R.Crim.P. 11(8), TO BE ARGUED BY A PROSECUTOR AND CONSIDERED BY A COURT AT SENTENCING? 2.) WHETHER SOUTH DAKOTA'S HOMICIDE SCHEME VIOLATES THE SIXTH AND FOURTEENTH AMENDMENTS AS IT CONTAINS IDENTICAL MAXIMUM PENALTIES OF LIFE WITHOUT PAROLE AND VAGUE STATUTES? i