Beyond the sentencing provisions contained in the antitrust statutes, the Court is required to calculate a range of punishment using the United States Federal Sentencing Guidelines. Navigating the sentencing guidelines requires attorneys experienced in defending against federal crimes. The guidelines were enacted in an attempt to address the problem of severely differing punishments for the same crimes that were being imposed in courtrooms across the country. White collar crime, including antitrust violations, was a major area of law where these disparate sentences were present.
The sentencing guidelines are no longer mandatory, after a landmark Supreme Court decision rendered them advisory. However, it is required that the sentencing judge properly calculate and consider the guidelines. In order to calculate a sentence range, the judge must evaluate numerous factors relating to the crime for which the defendant was committed. Most commonly, the factors take the form of questions such as:
- What was the volume of commerce attributable to the defendant?
- Was the volume of commerce attributable to the defendant more than $1,000,000? More than $10,000,000? Etc.
- Did the conduct involve participation in an agreement to submit noncompetitive bids?
- What was the degree of participation by the defendant?
These are but a few of the questions that must be answered before the sentencing court can properly calculate the recommended range of punishment. A veteran white collar defense attorney is critical to effective representation in this phase of the trial. Contained within the guidelines are the situations in which a defense attorney may argue for what is called a “downward departure,” which means simply that the guidelines be adjusted downward in favor of the defendant. Downward departures are not overly common, which is another reason why a professional advocate with working knowledge of the guidelines is imperative for your defense.
If the guidelines do not indicate that a downward departure is warranted for a defendant’s situation, the judge still retains discretion to go above or below the recommended sentencing range, since the guidelines are now advisory only. When the sentencing court sentences a defendant either above or below the recommended guideline range and a departure is not warranted, this is referred to as a variance.