What Happens Now? Sentencing in Antitrust Cases After Booker

On January 12, 2005, the United States Supreme Court handed down its much-anticipated decision in United States v. Booker1 and held that the mandatory scheme of the Federal Sentencing Guidelines (the "Sentencing Guidelines" or "Guidelines"), when coupled with its reliance upon judicial fact finding, is not compatible with the guarantees of the Sixth Amendment to the U.S. Constitution. This decision follows the ruling handed down last summer by the Supreme Court in Blakely v. Washington2 in which the Court invalidated a state court sentence imposed pursuant to the Washington Sentencing Reform Act. After Blakely, many commentators predicted that the Federal Sentencing Guidelines, as written, were doomed to constitutional extinction given their similarity to the Washington statute. In large part, the Booker decision met these predictions as the Court declared that district judges would no longer be required to follow the Sentencing Guidelines and that sentences calculated thereunder would henceforth be deemed advisory.

Questions are now being asked about the practical impact of the Booker decision on the day-to-day administration of criminal justice and the meting out of sentences for federal crimes, including antitrust offenses. Although Congressional action is expected, it is not clear when that action will come and precisely what Congress will do in response to Booker. Significantly, the Booker decision in no way renders the Sentencing Guidelines irrelevant. District courts are still required to determine the range of sentences that would be suggested (no longer mandated) by the Guidelines, and federal prosecutors have been told that they "must actively seek sentences within the range established by the Sentencing Guidelines."3

What Booker does allow, on its face, is a more liberal consideration of the sentencing factors identified in the Sentencing Reform Act of 1984 (the "Sentencing Reform Act"), including, among others, the specific circumstances of the offense, the characteristics of the defendant, the need to provide "just punishment" and adequate deterrence, and the need to avoid sentencing disparities. District judges are now permitted to weigh and consider all these statutory sentencing factors and to exercise their discretion in imposing sentences both within and outside the sentencing ranges "advised" by the Guidelines, subject to appellate review for "reasonableness." As discussed below, the unique structure and approach of the Guidelines applicable to antitrust offenses may also, depending on the circumstances of a case, provide good reason for a court to impose a sentence outside the range recommended by the Sentencing Guidelines.

The Booker Decision

The Supreme Court's decision in United States v. Booker is divided into two separate majority opinions:4 First, in an opinion written by Justice Stevens, the Court holds that the mandatory enhancement of a sentence under the Federal Sentencing Guidelines based on factual findings made by a judge rather than a jury violates the Sixth Amendment; and second, in an opinion written by Justice Breyer, the Court holds that the appropriate remedy is to sever and excise two provisions of the Sentencing Reform Act deemed incompatible with the Court's Sixth Amendment ruling: (1) 18 U.S.C. ß3553(b)(1), which makes the application of the Sentencing Guidelines mandatory, and (2) 18 U.S.C. ß3742(e), which requires appellate courts to apply a de novo standard of review to district court departures from the Sentencing Guidelines.

In the majority opinion written by Justice Stevens, the Court held that the enhanced sentences called for in the companion cases before the Court involving the two respondents, Freddie Booker and Duncan FanFan, violated their Sixth Amendment rights because the sentences were predicated on factual findings made by the sentencing judge and the mandates of the Federal Sentencing Guidelines. Both Booker and FanFan stood to have nearly 10 years added to their sentences based on the post-verdict findings of the district court judges in their respective cases.

The majority...