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CHAPTER VI
ANTITRUST SENTENCING−GENERAL ISSUES
A. Policies Underlying the Antitrust Sentencing Guidelines
Congress created the U.S. Sentencing Commission to promulgate
sentencing guidelines with the overall purposes of “provid[ing] certainty
and fairness in meeting the purposes of sentencing,” and “avoiding
unwarranted sentencing disparities among defendants with similar
records who have been found guilty of similar criminal conduct.”1
Whether the Sentencing Guidelines have accomplished these goals is an
ongoing and vigorous debate, but most concur that the guidelines have
led to an overall increase in the number and length of sentences imposed
on federal criminal offenders.2
As modified by the Antitrust Criminal Penalty Enhancement and
Reform Act of 2004 (ACPERA),3 the Sherman Antitrust Act—the statute
under which antitrust offenders are prosecuted—provides for a
combination of imprisonment up to ten years, individual fines up to $1
million, and corporate fines up to $100 million.4 The Criminal Fine
Improvements Act of 1987, via 18 U.S.C. § 3571(d),5 further provides
1. 28 U.S.C. § 991(b)(1)(B).
2. See, e.g., Crystal S. Yang, Have Inter-Judge Sentencing Disparities
Increased in an Advisory Guidelines Regime? Evidence from Booker, 89
N.Y.U. L. Rev. 1268 (2014); Ryan W. Scott, Inter-Judge Sentencing
Disparity After Booker: A First Look, 63 Stan. L. Rev. 1 (2010)
(providing empirical evidence on sentences before and after the
Sentencing Guidelines were made advisory); see also Peugh v. United
States, 569 U.S. 530 (2013) (“[The defendant] points to considerable
empirical evidence indicating that the Sentencing Guidelines have the
intended effect of influencing the sentences imposed by judges.”); Frank
O. Bowman, III, Debacle: How the Supreme Court has Mangled
American Sentencing Law and How it Might Yet be Mended, 77 U. Chi.
L. Rev. 367 (2010) (arguing that the “practical effect” of the Supreme
Court’s constitutional analysis in its guideline cases “has been to paralyze
the generally beneficial structured sentencing movement”).
3. Pub. L. No. 108-237, tit. II, 118 Stat. 661 (2004).
4. 15 U.S.C. § 1.
5. Pub. L. No. 100-185, § 6, 101 Stat. 1279 (1987).
114 Antitrust Cartel Leniency and Sentencing Handbook
for an alternative maximum fine for both individual and corporate
defendants of the greater of twice the gross gain from the offense or
twice the gross loss. In 1987, the Sentencing Commission promulgated
section 2R1.1 of the Sentencing Guidelines, covering bid rigging, price
fixing, and market allocation agreements among competitors.6 This
guideline applies only to horizontal agreements among competitors to
restrain trade, based on the “near universal agreement that restrictive
agreements among competitors . . . can cause serious economic harm.”7
Given that at the time of publication no sentencings have yet taken place
for criminal no poach or criminal monopolization cases in the post-
Guidelines era it remains to be seen how the court would calculate an
appropriate sentence. The antitrust sentencing guideline USSG §2R1.1 is
titled “Bid-Rigging, Price-Fixing or Market-Allocation
Agreements Among Competitors” (emphasis added).8 It contemplates
conspiratorial conduct among horizontal competitors, so it will be
interesting to see whether and how the court will calculate the applicable
sentencing guidelines range and impose a sentence.
Before the Sentencing Guidelines were implemented, white collar
defendants in general were receiving more lenient sentences than other
nonviolent criminals.9 Under pre-Guidelines practice, only 39 percent of
individual antitrust offenders were imprisoned, and the average time
6. See U.S. Sent’g Guidelines Manual § 2R1.1 (U.S. Sent’g Comm’n 1987).
7. Id. § 2R1.1 cmt. background (noting that other types of antitrust offenses
are not covered by the guideline because there is “no consensus . . . about
[their] harmfulness”). See generally Beryl A. Howell, Sentencing of
Antitrust Offenders: What Does the Data Show?, U.S. Sent’g Comm’n
(2010), www.ussc.gov/sites/default/files/pdf/about/commissioners/
selected-articles/ Howell_Review_of_Antitrust_Sentencing_Data.pdf.
8. U.S. Sent’g Guidelines Manual § 2R1.1 (U.S. Sent’g Comm’n 1987).
9. See, e.g., Stephen Breyer, The Federal Sentencing Guidel ines & the Key
Compromises upon Which They Rest, 17 Hofstra L. Rev. 1, 20-21 (1988)
(“The Commission found in its data significant discrepancies between
pre-Guideline punishment of certain white-collar crimes, such as fraud,
and other similar common law crimes, such as theft. The Commission’s
statistics indicated that where white-collar fraud was involved, courts
granted probation to offenders more frequently than in situations
involving analogous common law crimes; furthermore, prison terms were
less severe for white-collar criminals who did not receive probation. To
mitigate the inequities of these discrepancies, the Commission decided to
require short but certain terms of confinement for many white-collar
offenders, including tax, insider trading, and antitrust offenders, who
previously would have likely received only probation.”).
Antitrust Sentencing–General Issues 115
served was 45 days.10 Similarly, the average fines were only $27,000 for
individuals and $160,000 for corporations.11 The Sentencing
Commission sought to increase penalties applicable to antitrust offenses,
in particular to make prison terms for individual antitrust offenders
“much more common, and usually somewhat longer, than typical under
pre-guidelines practice.”12
Section 2R1.1 initially set the base offense level for antitrust offenses
at level nine, which corresponded to a prison term of four to ten months
for first-time offenders. The guidelines have since been amended several
times to track statutory increases,13 with the current base offense level set
at level twelve.14 Adjustments to the offense level—in two-level
increments of up to sixteen additional levels—are made based on the
volume of commerce attributable to an individual participant in the
antitrust offense.15 Increases in the base offense level and volume of
commerce adjustments were strongly supported by the Antitrust
Division, which encouraged the Sentencing Commission to bring the
guidelines for antitrust offenses in line with other white-collar criminal
offenses and to take into account the increase in the statutory maximum
10. See U.S. Sent’g Guidelines Manual § 2R1.1 cmt. background (U.S.
Sent’g Comm’n 1987).
11. Id.
12. Id.; see also U.S. Sent’g Guidelines Manual app. C, amend. 377 (U.S.
Sent’g Comm’n 1991) (“The base offense level for antitrust violations
starts higher than the base offense level for fraud violations to reflect the
serious nature of and the difficulty of detecting such violations.”); U.S.
Sent’g Guidelines Manual app. C, amend. 678 (U.S. Sent’g Comm’n
2005) (“[The higher base offense level] responds to congressional
concern about the seriousness of antitrust offenses and provides for
antitrust penalties that are more proportionate to those for sophisticated
frauds.”).
13. See generally U.S. Sentencing Comm’n, Amendments to the Guidelines
Manual, available at https://www.ussc.gov/guidelines/ amendments.
14. U.S. Sent’g Guidelines Manual § 2R1.1(a) (U.S. Sent’g Comm’n 2018)
[hereinafter U.S.S.G.].
15. Id. § 2R1.1(b)(2). Adjustments to the base offense level range from no
enhancement for a volume of commerce of $1 million or less to a sixteen-
level enhancement for a volume of commerce that exceeds $1.85 billion,
which corresponds to a term of imprisonment of seventy-eight to ninety-
seven months for first-time offenders, near the ten-year statutory
maximum.
