Amendments to United States Sentencing Guidelines Which Increase Antitrust Penalties Submitted to Congress

On April 15, 2005, the United States Sentencing Commission (“USSC”), an independent agency in the judicial branch of the federal government, voted unanimously to adopt amendments to the United States Sentencing Guidelines (the “Guidelines”).1 The amendments, which follow a series of major developments in the sentencing system, increase the advised penalties for antitrust offenses in response to the Antitrust Criminal Penalty Enhancement and Reform Act of 2004 (the “Antitrust Penalty Enhancement Act”)2 which increased the maximum sentences for individuals convicted of Sherman Act offenses from three years to ten years.

The Guidelines set out minimum and maximum penalties and include factors to be used by sentencing judges in sentencing to determine the ranges of appropriate penalties within statutory limits. The USSC amendments do not revise the Guidelines with respect to fines, as the increases in the Sherman Act statutory maximum fines established in the Antitrust Penalty Enhancement Act are intended to permit courts to impose fines for antitrust violations at current Guideline levels without the need to engage in damages litigation during the criminal sentencing process.3

How Application of the Guidelines Changed in 2005

The Supreme Court held in the January 2005 Booker-Fanfan case that the Guidelines offended the Sixth Amendment right to jury trial to the extent that they mandated sentence enhancements based on facts found by the sentencing judge rather than the jury.4 Rather than invalidating them entirely, however, the Court severed the provision of the Sentencing Reform Act (“SRA”) that requires judges to impose sentences in accordance with the Guidelines. This relegated the Guidelines to “advisory” status. While they still may be consulted and taken into account, judges need only apply the Guidelines in an advisory manner in exercising their sentencing discretion.

Since Booker-Fanfan, judges have differed amongst themselves as to how much weight to afford the Guidelines relative to 18 U.S.C. Section 3553 which requires judges to consider other factors in calculating a sentence. The USSC’s amendments do not change the advisory nature of the Guidelines or urge judges to follow them, as some had hoped. Rather, they simply increase the penalties that judges are directed to take into account, but yet, are not required to follow in calculating sentences for antitrust offenses.

The Developments Which Led to the Downgraded Status of the Guidelines

The procession of developments in sentencing law began in June 2000 with Apprendi where Sixth Amendment issues were raised by a sentence that had been increased beyond the statutory maximum for the offense pursuant to a state hate crime statute in the absence of a jury trial.5 On review of the judge’s sentencing order, the Supreme Court held that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be [proved] to a jury…beyond a reasonable doubt”.6

This development in sentencing law was followed by the Antitrust Penalty Enhancement Act, signed by the President on June 22, 2004. Section 215 of the Act increases both the fines and statutory maximum terms of imprisonment for Sections 1, 2, and 3 of the Sherman Antitrust Act. The Act increased the maximum term of imprisonment from 3 years to 10 years, increased the maximum fine for corporations from $10,000,000 to $100,000,000, and increased the maximum fine for individuals from $350,000 to $1,000,000.

Just two days later, Sixth Amendment concerns again led the Supreme Court to invalidate a state’s sentencing guidelines system in United States v. Blakely.7 The Supreme Court held that “the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely [based on] the facts reflected in the jury verdict or admitted by the defendant.”8 It thus found the enhancements in Washington State’s guidelines must be proven to a jury or admitted by the defendant.

Having attacked two state sentencing systems on Sixth Amendment grounds, the Supreme Court heard two appeals, United States v. Booker and United States v. Fanfan, to answer the then-outstanding question of whether the Court would come to the same conclusion with respect to the federal Guidelines.9

As to Booker, the jury, based on evidence that Booker possessed at least 92.5 grams of crack cocaine, found the defendant guilty of intent to distribute at least 50 grams of cocaine. The statutory maximum penalty for this offense is a life sentence and the Guidelines prescribe a sentence of up to 21 years, 10 months in jail. At the sentencing hearing, the judge found Booker had possessed 566 additional grams of crack and that he had obstructed justice. Under the Guidelines, these facts increased the range to 20 years to life. The judge followed the Guidelines and sentenced Booker to 30-years in prison. On appeal, the sentence was invalidated on the basis of Blakely. The Court held that the Sixth Amendment right to a jury trial is violated by the imposition of an enhanced sentence under the Guidelines based on the sentencing judge’s determination of a fact, other than a prior conviction, that was not found by the jury or admitted by the defendant.”10

Fanfan was convicted by a jury of conspiracy to distribute and to possess with intent to distribute at least 500 grams of cocaine. Under the Guidelines, without any additional factors, this offense carried a maximum sentence of 78 months. As in Booker, the judge at the sentencing hearing found that the defendant possessed a greater quantity of cocaine than had been found at trial. The Guidelines required a sentence of 188-235 months for this amount. The Fanfan judge relied on Blakely and held that the enhancements could not be applied in light of these facts. The judge imposed a sentence calculated solely based on the facts reflected in the guilty verdict. The Court held that the Sixth Amendment did not require that juries determine Guidelines factors and that the Guidelines could still be applied by judges, in an advisory rather than mandatory manner.11

Booker-Fanfan thus directs that judges may take into account, in the exercise of their sentencing discretion, the ranges set forth in the Guidelines, as well as the factors in 18 U.S.C. Section 3553(a), provided that necessary facts are found by the jury or admitted by the defendant. This means that the increased penalties for antitrust offenses included in the USSC’s amendments will in fact be considered by the courts in federal cases.

Amended Guidelines Likely to Come into Force November 1, 2005

The amendments to the Guidelines will be submitted to Congress no later than May 1, 2005. They will become effective November 1, 2005, unless Congress disapproves them. It is possible that Congress will reject advisory guidelines and change the Guidelines – and the federal sentencing system itself. As the Supreme Court observed in Booker-Fanfan, the “ball now lies in Congress’ court” to devise a sentencing scheme that passes constitutional muster.”12

  1. The Guidelines, as they now are, may be viewed online at The USSC published proposed amendments to the Guidelines for the purpose of soliciting public comments on them. This publication of the proposed amendments may be viewed at
  2. Pub. L. 108-237.
  3. Supplemental Legislative History, Cong. Rec. H 3658, June 2, 2004.
  4. United States v. Booker, 125 S. Ct. 738 (2005) (“Booker-Fanfan“).
  5. United States v. Apprendi, 530 U.S. 466 (2000).
  6. Id. at 490.
  7. United States v. Blakely, 124 S. Ct. 2531 (2004).
  8. Id. at 2537.
  9. Supra note 4.
  10. Booker-Fanfan, supra note 4 at 756.
  11. Id. at 750.
  12. Id. at 768 (Stevens J.).

Authored by:
Heather M. Cooper