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CHAPTER VIII
APPLICATION OF THE SENTENCING GUIDELINES
TO INDIVIDUALS
A. Introduction
Once the jury has adjudged a defendant guilty, or a defendant has
chosen to enter a guilty plea, the court must render a sentence. After
United States v. Booker,1 the United States Sentencing Guidelines
(Sentencing Guidelines) are advisory and the application of them to
individuals is largely driven by the policy of the United States
Department of Justice, Antitrust Division. Therefore, it is important to
understand Antitrust Division policy to effectively advocate for your
client’s interests at sentencing and, if warranted, in plea negotiations.
The Justice Manual, Antitrust Division speeches, annual reports,
sentencing memoranda, and policy statements can aid the defense bar in
understanding those policy interests. These materials demonstrate the
Antitrust Division’s continued focus on enforcement and jail terms for
individuals. In 2019, the Antitrust Division’s criminal trials resulted in
two guilty verdicts against executives whose actions harmed consumers
in the food and financial markets.2 In fiscal year 2020, the Antitrust
Division charged twenty-two individuals criminally.3 These cases are a
testament to the Antitrust Division’s commitment to holding executives
accountable for violations.
The Antitrust Division’s continued emphasis on increased individual
jail sentences is reflected in recent enforcement actions. In 2020, for
example, the former Chief Executive Officer of Bumble Bee Foods, LLC
was sentenced to serve forty months in jail and to pay a $100,000
criminal fine for his role in a three-year antitrust conspiracy to fix prices
of canned tuna.4
1. 543 U.S. 220 (2005).
2. U.S. Dep’t of Justice, Antitrust Div. Update 2020, (June 23, 2020),
available at https://www.justice.gov/atr/division-operations/antitrust-
division-update-2020/completed-trials.
3. U.S. Dep’t of Justice, Antitrust Div., Criminal Enforcement Trends
Charts, available at https://www.justice.gov/atr/criminal-enforcement-
fine-and-jail-charts.
4. Press Release, U.S. Dep’t of Justice, Antitrust Div., Former Bumble Bee
CEO Sentenced To Prison For Fixing Prices Of Canned Tuna (June 16,
176 Antitrust Cartel Leniency and Sentencing Handbook
In June 2019, two freight transportation executives pled guilty to
participating in a conspiracy to fix prices of international freight
forwarding services, and were sentenced to serve eighteen months and
fifteen months in prison, respectively.5
In December 2013, the Antitrust Division secured a five-year
sentence for Frank Peake, a former shipping executive, for his role in an
antitrust conspiracy to fix prices on shipping routes between the United
States and Puerto Rico.6 The five-year sentence was then the longest ever
imposed against an individual for a single violation of the antitrust laws
(as compared to a violation of the antitrust laws together with a violation
of other laws).7 On appeal, the First Circuit affirmed the sentencing
decision of the District Court.8 The average individual prison sentence
was 22 months in fiscal year 2020.9
Antitrust Division policy also favors early resolution for both
corporations and individuals. The Leniency Program has put in place
“unprecedented incentives for companies to self-report cartel
violations.”10 Beyond the corporate consequences, individuals can be
affected where corporations do not seek leniency upon discovering
2020), available at https://www.justice.gov/opa/pr/former-bumble-bee-
ceo-sentenced-prison-fixing-prices-canned-tuna.
5. Press Release, U.S. Dep’t of Justice, Antitrust Div., Two Freight
Transportation Executives Sentenced to Prison Terms for Price Fixing
(June 25, 2019), available at https://www.justice.gov/opa/pr/two-freight-
transportation-executives-sentenced-prison-terms-price-fixing.
6. Press Release, U.S. Dep’t of Justice, Antitrust Div., Former Sea Star Line
President Sentenced to Serve Five Years in Prison For Role in Price-
Fixing Conspiracy Involving Coastal Freight Services Between the
Continental United States and Puerto Rico (Dec. 6, 2013), available at
https://www.justice.gov/opa/pr/former-sea-star-line-president-sentenced-
serve-five-years-prison-role-price-fixing-consp iracy.
7. Kat Green, Freight Exec Can’t Escape Longest-Ever Antitrust Sentence,
Law360 (Oct. 14, 2015), available at http://www.law360.com/articles/
714466/freight-exec-can-t-escape-longest-ever-antitrust-sentence.
8. United States v. Peake, 804 F.3d 81 (1st Cir. 2015).
9. U.S. Dep’t of Justice.
10. Brent C. Snyder, Deputy Assistant Att’y Gen., U.S. Dep’t of Justice,
Antitrust Div., Deputy Assistant Attorney General Brent Snyder Delivers
Remarks at the Sixth Annual Chicago Forum on International Antitrust
(June 8, 2015), available at https://www.justice.gov/opa/speech/deputy-
assistant-attorney-general-brent-snyder-delivers-remarks-sixth-annual-
chicago.
