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Application of the Federal Sentencing Guidelines in Antitrust Cases: A Practical Guide
Kathleen M. Beasley

Prior to 1987, the sentence imposed on a federal criminal defendant in the United States was left largely to the discretion of the sentencing judge, subject to offense-specific statutory minimum and maximum sentences. In 1984, Congress passed the Sentencing Reform Act, delegating broad authority to the United States Sentencing Commission (the “Commission”) to review and rationalize the federal sentencing process. The Commission was directed to create categories of offense behavior and offender characteristics, and to accordingly prescribe guideline ranges specifying appropriate sentences. With the introduction of the Federal Sentencing Guidelines Manual (the “Guidelines”) in November 1987, judges were required to impose sentences in accordance with the Guidelines. The Guidelines, which are amended annually by the Commission, include separate analyses for antitrust violations. The promulgation of the Guidelines therefore heralded a move to mandatory sentencing subject to the standards set forth in the Guidelines.

In 2005, the mandatory sentencing under the Guidelines changed as a result of the United States Supreme Court decision in United States v. Booker, 125 S. Ct. 738 (2005). The Supreme Court held that the mandatory application of the Guidelines violated the Sixth Amendment jury trial right. After Booker, federal judges must consider, but are not bound by, the Sentencing Guidelines in rendering a criminal sentence – in other words, the Guidelines are truly guidelines. Still, many district court judges are hewing closely to the Guidelines. Because the Guidelines continue to be the structure within which the parties and courts work when discussing sentencing, attorneys must be familiar with how the Guidelines are applied.

Presented at the 25th ABA National Institute on White Collar Crime , March 3, 2011. To read the full article, click on the PDF linked below.