Antitrust Sentencing Post-Booker: What We Know So Far

In a series of sentencing decisionsóbeginning with Apprendi v. New Jersey1 and Blakely v. Washington,2 and culminating in United States v. Booker 3óthe U.S. Supreme Court prescribed fundamental changes to the legal framework governing sentencing decisions. Although the significance of these decisions is undeniable, what has been less clear is the extent to which the new approach mandated by the Court would effect the length or type of sentences imposed on antitrust defendants. Now that more than a year has passed since Booker, and we have the benefit of some sentencing data from the United States Sentencing Commission, this is an appropriate time to assess what we know so far regarding Booker's impact on antitrust sentencing and offer a few thoughts on where we might be headed.

How We Got Here

In Apprendi and Blakely, the Supreme Court undertook an aggressive defense of the Sixth Amendment right to trial by jury, declaring invalid state sentencing provisions that impinged on that right by vesting judges with the authority to make factual determinations that increased a defendant's sentencing exposure beyond the statutory maximum.4 The decisions left many wondering whether the federal Sentencing Guidelines5 might be the next victim of the Court's Sixth Amendment jurisprudence. In January 2005, the Court gave its answer. In Booker and a consolidated case, United States v. Fanfan,6 it declared that the federal system of mandatory Guidelines violated a defendant's right to trial by jury.7 The Court did not reject the Guidelines outright but, in a separate majority opinion on the question of remedy, it excised the statutory provision that rendered the Guidelines binding on sentencing judges.8 Explaining the effect of that change, the Court stated: "So modified, the Federal Sentencing Act . . . makes the Guidelines effectively advisory. It requires a sentencing court to consider Guidelines ranges, see 18 U.S.C.A. ß 3553(a)(4) (Supp. 2004), but it permits the court to tailor the sentence in light of other statutory concerns as well, see ß 3553(a) (Supp. 2004)."9 The Booker Court held that sentences imposed under this new regime would be subject to appellate review under a standard of "unreasonableness."10

The Potential Implications for Antitrust Defendants

By directing the sentencing court to take into account the full list of factors set out in 18 U.S.C. ß 3553, the Booker decision significantly broadened the range of considerations in a sentencing decision. In particular, Section 3553(a) directs that the sentencing court look beyond the offense itself and consider "the history and characteristics of the defendant."11 In this respect, Booker might seem to provide antitrust defendants with an important opportunity. Almost all antitrust defendants are first offenders and most are able to present the sentencing court with an impressive list of accomplishments, community activities, and attestations to their good character and strong family ties. Many of these defendants will suffer public humiliation and loss of their careers as a result of conviction. With these considerations in mind, one could argue that a sentence within the Guidelines range is unjustly harsh.12

However, antitrust defendants would be well advised to consider some countervailing factors. First, in an effort to give effect to Congress's desire to avoid excessive sentencing disparities, the Booker Court indicated that the Guidelines, although no longer mandatory, should be taken into account in sentencing.13 Picking up on that point, the Antitrust Division of the Department of Justice quickly signaled that it would press for sentences within the range contemplated by the Guidelines:

Post-Booker, much of our practice will remain the same. Our prosecutors will continue to seek Guideline sentences because they have promoted consistence, fairness, and transparency in sentencing. Thus, we will continue to oppose Guidelines adjustments and departures not supported by the facts or law, and we will appeal sentences that are below the Guidelines range and fail to reflect the purposes of sentencing.

Just as the Guidelines promoted consistency in the almost two decades of Guidelines experience pre-Booker, they can continue to do so in the post-Booker world. . . .14

The courts for the most part have agreed with this approach,15 and predictably, judges and prosecutors continue to take their cues from a system of sentencing rules that has shaped sentencing decisions for the last two decades.16

Second, judges might justifiably fear that leniency in sentencing will prompt Congress to enact new laws largely divesting the courts of the discretion granted under Booker.17 The Booker Court recognized the possibility of a legislative response,18 and there were immediate calls for a legislative "fix" for the Court's decision.19 In March 2006, the Chairman of the House Committee on the Judiciary lamented that...