BYE, Circuit Judge.
Steven VandeBrake pleaded guilty to two counts of price fixing and one count of bid rigging in violation of 15 U.S.C. § 1. The guilty plea was pursuant to a non-binding plea agreement he reached with the government after the district court
In 1994, VandeBrake took over his family's concrete business in Orange City, Iowa. Fourteen years later VandeBrake sold the family business to Grupo Cementos de Chihuahua (GCC), a Mexico-based corporation which operates close to two dozen cement plants in Iowa. GCC formed GCC Alliance Concrete (Alliance), and VandeBrake thereafter worked as a sales manager for the new company. In March 2009, the United States Department of Justice (DOJ) began investigating VandeBrake for his involvement in a bid-rigging conspiracy arising from the sale of concrete products in northern Iowa. The investigation began after one of Alliance's competitors reported the bid-rigging conspiracy to the DOJ under the Antitrust Division's Leniency Program.
The DOJ's investigation confirmed the existence of a bid-rigging conspiracy between VandeBrake's company, Alliance, and two of its competitors, as well as a price-fixing scheme between Alliance and a third competitor. As a result of the investigation, the government filed a criminal information against VandeBrake charging him with three antitrust violations of 15 U.S.C. § 1, two counts for bid rigging and one count for price fixing. Through his counsel, VandeBrake engaged in extensive negotiations with the DOJ's Antitrust Division, ultimately reaching an agreement whereby the parties would ask the district court to accept a binding plea agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. The binding agreement, if accepted by the district court, called for VandeBrake to serve a sentence of nineteen months and pay a fine of $100,000 for his role in the bid-rigging and price-fixing conspiracies.
Shortly after VandeBrake entered guilty pleas to all three counts before a magistrate judge, the district court entered an order announcing it would not accept the binding plea agreement. The district court scheduled a hearing under Rule 11(c)(5) to discuss the matter. At the hearing, the district court disclosed the reasons why it was not accepting the binding plea agreement, which included: 1) the leniency of the sentence in light of VandeBrake's conduct; 2) a policy disagreement with the antitrust guidelines; 3) the presence of codefendants and the need to give fair sentences to each defendant after reviewing all of the applicable presentence investigation reports (PSRs), which the district court had not yet done; 4) the DOJ attorney's relative lack of experience when compared to the district court's own sentencing experience; and 5) a reluctance to surrender the district court's sentencing discretion in light of the other factors just mentioned.
Ultimately, however, the district court did not reject the binding plea agreement, but gave VandeBrake the option of going forward with the sentencing hearing, after which the district court would decide whether to accept or reject the binding plea agreement. See Fed.R.Crim.P. 11(c)(3)(A) (indicating a district court "may accept [a binding] agreement, reject it, or defer a decision until the court has reviewed the presentence report"). Speaking with candor, the district court represented "there's probably a less than 10
Prior to sentencing, the district court ordered a PSR prepared. The PSR discussed, among other things, the length and scope of the concrete bid-rigging and price-fixing conspiracies. The first bid-rigging conspiracy took place between Alliance and one of its competitors from June 2008 through March 2009. The second bid-rigging conspiracy took place between Alliance and a second competitor from January 2008 through August 2009. The price-fixing conspiracy took place between Alliance and a third competitor from January 2006 through August 2009. The PSR calculated the volume of commerce affected by each conspiracy to be $591,000, $95,000, and $4,845,439.61, respectively, for a total of $5,531,439.61.
The district court conducted a three-day sentencing hearing for VandeBrake and one of his codefendants. Following the sentencing hearing, the district court issued a detailed memorandum indicating it was varying upward from the advisory guidelines range by imposing a sentence of forty-eight months. The two primary reasons given by the district court for the variance were a policy disagreement with the antitrust guidelines and VandeBrake's lack of remorse for his crimes. The district court's policy disagreement focused on the Sentencing Commission's choice to increase the offense levels for antitrust violations less rapidly than the offense levels for fraud violations despite the comparable societal harm targeted by both the fraud and antitrust guidelines. The district court also indicated why it believed the Commission's explanation for the disparity did not apply in VandeBrake's situation.
United States v. VandeBrake, 771 F.Supp.2d 961, 1004-05 (N.D.Iowa 2011) (internal footnote omitted).
The district court also justified its variance when taking into account "the history and characteristics of the defendant" pursuant to 18 U.S.C. § 3553(a)(1), focusing on VandeBrake's lack of remorse.
VandeBrake, 771 F.Supp.2d at 1005-08 (internal footnote omitted).
Finally, the district court gave a detailed explanation of the fine amount it chose, considering all the factors listed at 18 U.S.C. § 3572(a)
VandeBrake, 771 F.Supp.2d at 1012.
VandeBrake filed a timely appeal. On appeal, he contends the district court abused its discretion by not accepting the binding plea agreement. He also contends the sentence of forty-eight months and fine of $829,715.85 are substantively unreasonable.
VandeBrake contends the district court abused its discretion by not accepting the Rule 11(c)(1)(C) binding plea agreement. The government responds by contending VandeBrake waived this claim when he chose to plead guilty to a non-binding plea agreement under Rule 11(c)(1)(B). We agree with the government.
We first note the district court did not actually reject the binding plea agreement. The district court has three choices when presented with a binding plea agreement proposed by the parties. It may accept the binding plea agreement, reject it, or defer a decision until after reviewing the presentence report. Fed.R.Crim.P. 11(c)(3)(A). Here the district court chose the third option by deferring its decision. VandeBrake then chose to enter a non-binding plea agreement with the government. The new plea agreement did not preserve VandeBrake's right to challenge the district court's nonacceptance of the binding plea agreement; it was unconditional.
"[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process." Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). "It is established that an unconditional plea of guilty waives all prior infirmities which neither affect the court's jurisdiction nor the substantive sufficiency of the indictment." United States v. Barker, 594 F.2d 709, 710 (8th Cir.1979). The only Rule 11 issues we have considered on appeal following an unconditional guilty plea are those which "call[] into question the knowing and voluntary nature of a plea, and thus its validity," including challenges to the "adequacy of a factual basis" for the plea. United States v. Frook, 616 F.3d 773, 775 (8th Cir.2010). VandeBrake does not claim his decision to enter the non-binding plea agreement was unknowing or involuntary, nor does he challenge the factual basis for the plea. Under these circumstances, we conclude VandeBrake's unconditional guilty plea waived the right to complain about the district court's alleged indiscretions with respect to the binding plea agreement. See United States v. Rivera, 209 Fed.Appx. 618, 620-21 (8th Cir.2006) (declining to address a claim that a district court abused its discretion in rejecting a binding plea agreement where the defendant subsequently entered a second plea agreement "made with a full understanding of the possible consequences[,]" concluding the second plea agreement "cured any prejudice possible" from the district court's rejection of the first agreement); see also United States v. Walker, 927 F.2d 389, 390-91 (8th Cir.1991) (addressing the merits of a claim involving a rejected plea agreement but only because the defendant's second plea agreement "allowed appellant to enter a conditional guilty plea with leave to pursue this appeal[,]" and nevertheless concluding the defendant's "subsequent action of entering into a new plea agreement cured any potential prejudice" from the alleged infirmities associated with the first plea proceeding).
The district court gave two primary reasons for varying upward from the guidelines range: (1) a policy disagreement with the antitrust guidelines, and (2) VandeBrake's lack of remorse. Both were permissible reasons for varying from the guidelines. See United States v. Battiest, 553 F.3d 1132, 1137 (8th Cir.2009) (noting a policy disagreement may provide a basis for a district court's variance from the advisory guidelines range) (citing Kimbrough v. United States, 552 U.S. 85, 110-11, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007)); United States v. Hildebrand, 152 F.3d 756, 766 (8th Cir.1998), abrogated on other grounds by Whitfield v. United States, 543 U.S. 209, 212, 125 S.Ct. 687, 160 L.Ed.2d 611 (2005) (recognizing a district court is entitled to consider a defendant's lack of remorse, among other things, "[i]n selecting a point within the appropriate guideline range, or in deciding whether a departure is warranted"); see also United States v. Chase, 560 F.3d 828, 832 (8th Cir.2009) (explaining that factors which may justify a departure can also be used to justify a variance).
VandeBrake's primary complaint regarding the substantive unreasonableness of his sentence is that its length equals the longest sentence ever imposed in an antitrust case. He argues the volume of commerce and duration of the conspiracies involved in his case pale in comparison to the only other forty-eight month sentence imposed in an antitrust case. The length of VandeBrake's sentence, however, results in large part from the district court's policy disagreement with the antitrust guidelines. The district court believed the antitrust guidelines are too lenient, and consequently gave VandeBrake a more severe sentence than the within-the-guidelines' sentence VandeBrake cites for comparison purposes. Because the district court varied from the guidelines, VandeBrake's sentence will necessarily differ when compared to a within-the-guidelines' sentence. That mere fact does not ipso facto make the sentence substantively unreasonable. See, e.g., Kimbrough, 552 U.S. at 107-08, 128 S.Ct. 558 (rejecting the government's argument that nonmandatory guidelines would result in defendants with similar conduct receiving "markedly different sentences, depending on nothing more than the particular judge drawn for sentencing" by stating "our opinion in Booker recognized that some departures from uniformity were a necessary cost of the remedy we adopted").
VandeBrake also claims the district court gave invalid reasons for its policy disagreement with the guidelines. We disagree. The district court gave cogent reasons for its policy disagreement by comparing the antitrust guidelines to the fraud guidelines which attack a similar societal harm. The district court also tied its policy disagreement to the specific facts involved in VandeBrake's case, noting VandeBrake's prices for concrete did
We respectfully disagree with the dissent's view that the district court's policy disagreement with antitrust guideline § 2R1.1 turns on some aspect of the guideline which "exemplif[ies] the Commission's exercise of its characteristic institutional role" in light of "empirical data and national experience" such that "closer review" of the district court's decision "may be in order[.]" Kimbrough, 552 U.S. at 109, 128 S.Ct. 558. Indeed, as the dissenting opinion itself demonstrates, the Commission's revisions to the antitrust guidelines have largely been in response to Congressional acts. See Post at 1035 ("Following Congress's cue [referring to S.Rep. No. 98-225, at 177, suggesting white collar criminals were too frequently sentenced to probation or short terms of imprisonment] the Commission's first version of the [antitrust] guidelines increased the mean sentences of white-collar crimes above then-current averages to reduce the disparity between white-collar crimes and other property crimes, such as larceny."); post at 1045 (indicating the Commission's 2005 amendment to § 2R1.1 "was in response to Congress's enactment of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, which increased from three to ten years the maximum term of imprisonment for antitrust violations under 15 U.S.C. § 1"). Similarly, in Kimbrough, the fact that the Commission merely responded to a Congressional act in adopting the 100:1 powder/crack ratio (i.e., the mandatory minimum sentences set in the 1986 Act) was expressly why the Supreme Court stated the "crack cocaine Guidelines ... present no occasion for elaborative discussion of this [closer review] matter[.]" 552 U.S. at 109, 128 S.Ct. 558.
The dissent's approach conflicts not only with Kimbrough itself, but with other circuits that have addressed Kimbrough's suggestion for "closer review" of some district court sentencing decisions. Those circuits have focused on whether the Commission developed a particular guideline "based on research and study rather than reacting to changes adopted or directed by Congress." United States v. Grober, 624 F.3d 592, 601 (3d Cir.2010); see also United States v. Henderson, 649 F.3d 955, 960, 962 (9th Cir.2011) (concluding "district judges must enjoy the same liberty to depart from [the child pornography Guidelines] based on reasonable policy disagreement as they do from the crack-cocaine Guidelines discussed in Kimbrough" because "[m]ost of the revisions [to § 2G2.2] were Congressionally-mandated and not the result of an empirical study"). In Grober, a district court based its sentencing decision upon a policy disagreement with the child pornography guideline at U.S.S.G. § 2G2.2. After conducting an extensive examination of the development of § 2G2.2, the Third Circuit did not employ Kimbrough's closer review because "the
Likewise, here the district court not only explained at great length why it was concerned about § 2R1.1 in general, but more importantly, explained how the guideline applied to (or rather, did not adequately account for) VandeBrake's particular offense conduct. The crux of the district court's policy disagreement with § 2R1.1 was the Commission's assumption that the level of mark-up from an antitrust violation may tend to decline with the volume of commerce involved. The district court explained why such an assumption did not apply to VandeBrake, because VandeBrake's concrete prices did not decrease with volume. Thus, in this case, the only aspect of § 2R1.1 which is relevant when considering the guideline's development is the volume of commerce gradations set forth therein. Even if that aspect of § 2R1.1 were the product of the Commission's institutional strengths,
We also respectfully disagree with the dissent's view that Kimbrough's "closer review" language necessarily equates to de novo review, as opposed to still falling somewhere within our well-accepted post-Booker review for substantive reasonableness. The facts and circumstances involved in this case well exemplify that point. Contrary to the dissent's view, the district court committed no procedural error when it sentenced VandeBrake. The district court properly calculated the advisory guidelines sentencing range at step one of the sentencing process, and limited consideration of its policy disagreement with the antitrust guidelines to step three of the sentencing process. See, e.g., United States v. Shannon, 414 F.3d 921, 923-24 (8th Cir.2005) (discussing the three-step sentencing process followed by district courts in the post-Booker sentencing regime).
In such a situation, when reviewing one final, indivisible sentencing decision which reflects a mix of the comparative institutional abilities of both the trial court and the Commission, we would follow the lead of at least one member of the Supreme Court who would still categorize Kimbrough's closer review as falling within the "framework for evaluating `reasonableness.'" Pepper v. United States, ___ U.S. ____, 131 S.Ct. 1229, 1254, 179 L.Ed.2d 196 (2011) (Breyer, J., concurring). Under such a framework, while appellate courts would review those aspects of a sentencing decision "more closely when they rest upon disagreement with Guidelines policy," and "with greater deference when they rest upon case-specific circumstances[,]" our overall review would still be under the rubric of "reasonableness." Id. at 1255.
In this case, the district court's policy disagreement was based in large part upon case-specific circumstances, and the end result was an antitrust sentence more comparable to a fraud sentence based upon a similar amount of loss. As such, the district court's final sentence seems eminently consistent with the very rationale used by the dissent to attack it. See Post at 1046 ("Since `[t]he Commission ha[d] long recognized the similarity of antitrust offenses to sophisticated frauds,' the Commission amended § 2R1.1 to ensure `that penalties for antitrust offenses will be coextensive with those for sophisticated frauds sentenced under § 2B1.1.'") (quoting U.S.S.G. app. C, amend. 678).
In sum, we find no basis for concluding the final sentence is substantively unreasonable. The district court considered appropriate factors in varying from the guidelines, and adequately explained its sentence. See, e.g., United States v. Hill, 552 F.3d 686, 690-92 (8th Cir.2009) (affirming a sentence of fifty-one months (thirty months above the advisory guidelines range) where the district court adequately explained its sentence, noting the sentencing judge is in a "superior position" to evaluate the facts of any given case and judge their significance against the § 3353(a) factors) (internal quotation marks and citation omitted). Similarly, the district court considered appropriate factors in selecting the fine amount, and adequately explained its chosen amount. We find no basis for concluding the amount of the fine is substantively unreasonable.
We affirm the judgment of the district court.
RILEY, Chief Judge, concurring.
I concur in the general reasoning and the conclusion of Judge Bye's opinion. I write separately to disassociate myself from the district court's comments about economic success and status, race, heritage, and religion. I consider those comments inappropriate and not a proper reason for supporting any sentence.
Early in its lengthy sentencing colloquy the district court, quoting Judge Learned Hand, states, "`[A] judge ... is charged to see that the law is properly administered and it is a duty which he cannot discharge by remaining inert.'" United States v. VandeBrake, 771 F.Supp.2d 961, 966 (N.D.Iowa 2011) (quoting United States v. Marzano, 149 F.2d 923, 925 (2d Cir.1945)). There is, though, something to be said for some measure of inertness in the course of a criminal sentencing procedure fueled at the outset by a judicial observation that the defendant suffered from "insatiable greed, which is all the more shocking because [the defendant was] already [a] wealthy, multi-millionaire businessm[a]n." Id. at 965. Of course, even a multi-millionaire businessman has the right to be sentenced under the rule of law, especially rules recently put in place by the Supreme Court. Rich persons, poor persons and persons at all other economic strata should expect no less. Indeed, a United States Judge upon assuming office takes an oath that states, in part: "I will administer justice without respect to persons, and do equal right to the poor and to the rich." 28 U.S.C. § 453. Make no mistake about it though, VandeBrake committed serious violations of federal law and deserves substantial penalties as a result, whatever the bestowal of economic largess upon him.
As noted by the court majority, VandeBrake was charged with three price fixing and bid rigging offenses in violation of 15 U.S.C. § 1. Ante at 1031. He entered guilty pleas to these antitrust crimes, which triggered the use of U.S.S.G. § 2R1.1, the antitrust guideline. At this point, however, the district court (sometimes sentencing court) concluded that this guideline was flawed because, in the court's view, it is "overly lenient" with respect to all antitrust offenders, VandeBrake, 771 F.Supp.2d at 1003, and "fail[ed] to provide a just and reasoned sentencing range given the facts of [this] case." Id. at 1004.
Apparently in an attempt to avoid a claim of procedural error,
How could this guideline substitution have happened given Congress's and the Sentencing Commission's concerns about substantial uniformity in preliminary sentence calculations for identical criminal conduct—into which initial calculations judges would then insert variable, relevant circumstances and characteristics of individual offenders and, in this way, construct equitable and reasonable individualized penal judgments? It happened, apparently, because the sentencing court interpreted the Sentencing Commission's antitrust guideline formulations as being inadequate for use in sentencing antitrust offenders in general,
Where does a sentencing court find such unfettered authority, especially when failure to employ a Commission-designated guideline at the outset will surely result in widely varying sentences for substantially similar wrongdoers? To this inquiry, the sentencing court and court majority reply: Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009) (per curiam), and United States v. Feemster, 572 F.3d 455 (8th Cir.2009) (en banc).
But, no such authority can be gleaned from these cases.
The basic holding of Kimbrough (which dealt exclusively with the guidelines' 100:1 powder/crack ratio) is that a district court has deferential discretionary authority to substantially vary from a correctly calculated
To support my contention, I briefly review the procedural requirements at work in this sentencing dispute. Even though, since United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), all sentencing guidelines are advisory in nature, they nonetheless continue to serve an important and mandatory function in the creation of a federal criminal sentence. Kimbrough, 552 U.S. at 108, 128 S.Ct. 558. Using the guideline or guidelines designated by the Sentencing Commission for use with the particular offense or offenses of conviction, the sentencing court is initially charged with calculating a guideline sentencing range for the defendant. In fact, it is a "significant procedural error" for the sentencing judge to fail to fulfill this "first" requirement. Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). And, we review a district court's "interpretation and application of the guidelines de novo." United States v. Bryant, 606 F.3d 912, 918 (8th Cir.2010).
Accordingly, the district court's interpretations of the intrinsic breadth or limitations of § 2R1.1, the court's rejection, at least in part, of that guideline for use in the sentencing of VandeBrake, and the court's alternative interpretation, application and use of § 2B1.1 in lieu of § 2R1.1 should all have been reviewed by this court de novo. Further, if the sentencing court's numerous erroneous acts had been so reviewed, it is my belief that they would have been summarily rejected by this court.
Concluding, for purposes of further discussion only, that the sentence calculation in this case is procedurally sound and survives de novo review, the sentencing court's bald assumption that it has deferential discretion to substantially vary from all guidelines on policy grounds is reversible error.
Under Kimbrough analysis, you must first determine whether the applicable guideline is the product of the Sentencing Commission's inherent expertise. Kimbrough's result only depicts judicial analysis of a guideline that was not the product of the Commission's institutional strengths. The guideline at issue here, on the other hand, embodies the Commission's expertise. Thus, Kimbrough does not support the notion that the sentencing court's policy disagreement with § 2R1.1 is entitled to deferential abuse-of-discretion review.
As a general matter, the Sentencing Commission employed an "empirical approach" to formulate its several guidelines. Kimbrough, 552 U.S. at 96, 128 S.Ct. 558. Under this approach, the Commission first conducted "an empirical examination of 10,000 presentence reports setting forth what judges had done in the past." Rita v. United States, 551 U.S. 338, 349, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Then, the Commission "modif[ied] and adjust[ed] past practice in the interests of greater rationality, avoiding inconsistency, complying with congressional instructions, and the like." Id. Since the initial crafting of the guidelines, the Commission has been charged with "formulat[ing] and constantly refin[ing] national sentencing standards." Kimbrough, 552 U.S. at 108, 128 S.Ct. 558. The Commission's institutional strength, then, is its ability to "base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise." Id. at 109, 128 S.Ct. 558 (quotation omitted).
As stated above, Kimbrough provides an example of a guideline that was not a product of the Commission's expertise. There, the Court found that the guidelines' 100:1 powder/crack ratio was not based on the Commission's empirical research; rather, the ratio was simply borrowed from the ratio Congress used to set minimum and maximum sentences in the Anti-Drug Abuse Act of 1986.
In contrast to the 100:1 ratio at issue in Kimbrough, the antitrust guideline at issue here, § 2R1.1, exemplifies the Commission's institutional strengths. The legislative history of 28 U.S.C. § 994, which outlines the duties of the Commission, provides that, in crafting the guidelines,
S.Rep. No. 98-225, at 177 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3360. Following Congress's cue, the Commission's first version of the guidelines increased the mean sentences of white-collar crimes above then-current averages to reduce the disparity between white-collar crimes and other property crimes, such as larceny. U.S. Sentencing Comm'n, Supplementary Report on the Initial Sentencing Guidelines & Policy Statements 18 (1987).
As with other white-collar crimes, the Commission deliberately raised the sentences for antitrust violations above pre-guidelines averages. The background notes accompanying § 2R1.1 state that prison terms for antitrust offenses "should be much more common, and usually somewhat longer, than typical under pre-guidelines practice." U.S.S.G. § 2R1.1 cmt. background (2010). Indeed, the original sentencing ranges in § 2R1.1 "represent[ed] a substantial change from [then-present] practice. [Under pre-guidelines practice], approximately 39 percent of all individuals convicted of antitrust violations [were] imprisoned" and "the average time served ... was only forty-five days." U.S.S.G. § 2R1.1 cmt. background (1987).
While the Commission increased offense levels for fraud based on "loss" in U.S.S.G. § 2B1.1, the Commission decided to use "volume of commerce" to gauge the scale and scope of antitrust offenses under § 2R1.1. As the Commission explained,
U.S.S.G. § 2R1.1 cmt. background (1987).
The first significant
Id.
In 2005, the Commission again amended § 2R1.1 to raise the offense levels for antitrust violations and add additional steps to the volume of commerce table. U.S.S.G. app. C., amend. 678. The amendment was in response to Congress's enactment of the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, which increased from three to ten years the maximum term of imprisonment for antitrust violations under 15 U.S.C. § 1. U.S.S.G. app. C, amend. 678. The Act's legislative history indicates that Congress increased the maximum penalties for antitrust violations to "harmonize[] the treatment of criminal antitrust offenders and other white collar criminals" and to send the message to antitrust offenders that "if they are caught they will spend much more time considering the consequences of their actions within the confinement of their prison cells." 150 Cong. Rec. H3657 (daily ed. June 2, 2004) (statement of Rep. Sensenbrenner). The Commission noted Congress's "concern about the inherent seriousness of antitrust offenses" and also explained that "[t]he penalties for sophisticated fraud have been increased incrementally due to a series of amendments to § 2B1.1, while no commensurate increases for antitrust offenses had occurred." U.S.S.G. app. C., amend. 678. Since "[t]he Commission ha[d] long recognized the similarity of antitrust offenses to sophisticated frauds," the Commission amended § 2R1.1 to ensure "that penalties for antitrust offenses will be coextensive with those for sophisticated frauds sentenced under § 2B1.1." Id. According to the Commission, the amendment helped "restore the historic proportionality in the treatment of antitrust offenses and sophisticated frauds." Id.
The history of and the amendments to § 2R1.1 exemplify the Commission's institutional strengths. Indeed, in order to craft the original version of § 2R1.1, the Commission used empirical research as its baseline and then increased antitrust sentences in the interests of "greater rationality" and to avoid "inconsistency" between white-collar crimes and other property crimes. Rita, 551 U.S. at 349, 127 S.Ct. 2456. Thus, unlike the guideline at issue in Kimbrough, the antitrust guideline and its volume of commerce table were grounded in the Commission's research, not plucked from a statute or based on mere assumptions. And, since originally crafting § 2R1.1, the Commission has amended the guideline in order to fulfill its duty to "constantly refine national sentencing standards." Kimbrough, 552 U.S. at 108, 128 S.Ct. 558. It seems that the driving forces behind the Commission's amendments to § 2R1.1 have been: (1) Congress's amendments to the Sherman Act; and (2) the Commission's desire to maintain the historic proportionality between antitrust and fraud sentences. Thus, unlike the 100:1 ratio at issue in Kimbrough, Congress and the Commission are apparently on the same page regarding antitrust sentences and the Commission's continuing research has not eroded the underlying theories supporting the antitrust guideline.
Cases and commentators have struggled a bit, as do I, with the reach of Kimbrough's "closer review may be in order" language.
Reading the Supreme Court's "closer review may be in order" language in context, and mainly applying the first of the two primary meanings of the word "may,"
Today, the court majority does not apply "closer review" or explore its contours in any detail. Instead, the court applies only the deferential standard of review articulated in Feemster and finds that the district
Because of the sentencing court's assault on the Sentencing Commission in this case, and by way of epilogue to this dissent, I have used the Commission's annual source books to gather some statistics and create some tables, two of which I append to this dissenting opinion as examples. Since VandeBrake had a criminal history category of I and should have been sentenced under the current version of § 2R1.1, which became effective November 1, 2005, Table 1 depicts the mean and median sentences for antitrust offenders with a criminal history category of I between fiscal years (FYs) 2006 and 2010. During those years, the mean sentences for antitrust offenders fluctuated between 5.8 and 19.2 months, and the median sentences fluctuated between 5 and 14.5 months. Obviously, VandeBrake's 48-month sentence is well above the five-year mean and median sentences for other antitrust offenders in the same criminal history category.
My research reveals that there were only a few hundred offenders sentenced for committing antitrust violations between FYs 1996 and 2011. The statistics also demonstrate that, over a period of 15 years, VandeBrake was the only antitrust offender sentenced above the guidelines range.
While we may no longer employ a "rigid mathematic formula that uses the percentage of a departure as the standard for determining the strength of the justifications required for a specific sentence," Gall, 552 U.S. at 47, 128 S.Ct. 586, the Supreme Court "find[s] it uncontroversial that a major departure should be supported by a more significant justification than a minor one." Id. at 50, 128 S.Ct. 586. Although district courts' sentencing decisions are typically entitled to substantial deference, "[t]here is a difference ... between recognizing that another usually has the right of way and abandoning one's post." United States v. Kane, 639 F.3d 1121, 1136 (8th Cir.2011) (quotation omitted), cert. denied, ___ U.S. ____, 132 S.Ct. 1590, 182 L.Ed.2d 221 (2012).
Here, VandeBrake's 48-month sentence reflects a significant variance above his 21- to 27-month guidelines range under § 2R1.1, and his $829,715.85 fine is significantly higher than the guidelines range of $56,663.49 to $283,317.43.
The district court also explained that, if it did not vary upward, it would still issue a 48-month sentence by issuing consecutive sentences. Id. at 1013. It appears that the district court took this action to "bulletproof" its sentence. After all, we have held that "the district court has broad statutory authority, pursuant to 18 U.S.C. § 3584, to impose consecutive terms." United States v. Lone Fight, 625 F.3d 523, 525 (8th Cir.2010), cert. denied, ___ U.S. ____, 131 S.Ct. 2474, 179 L.Ed.2d 1231 (2011). But, while issuing this alternative sentence, the district court incorporated its previous analysis of the § 3553(a) factors, which included its policy disagreement with § 2R1.1. VandeBrake, 771 F.Supp.2d at 1013. Therefore, any taint from the district court's decision to
As earlier noted, the district court committed procedural error and made guideline interpretations which the court majority has not subjected to de novo review. U.S.S.G. § 2R1.1 exemplifies the Commission's institutional strengths and a "closer review" is in order in this case because the district court varied upward based, in part, on its policy disagreement with § 2R1.1. The greatest flaw in the court majority's opinion is its failure to apply the "closer review" contemplated in Kimbrough, and its assumption that the standard of review articulated in Feemster applies in cases such as this. VandeBrake's sentence is the first above-guidelines antitrust sentence in fifteen years because the district court found that the rationale underlying § 2R1.1's volume of commerce table did not apply. Under "closer review," I would reverse VandeBrake's 48-month sentence and remand for resentencing. Accordingly, I dissent.
TABLE 1: PRISON SENTENCES FOR ANTITRUST OFFENDERS IN CRIMINAL HISTORY CATEGORY I BETWEEN FYS 2006 AND 2010 ------------------------------------------------------------------------------- Number of Offenders Sentenced to Median Fiscal Year Imprisonment Mean Months Months ------------------------------------------------------------------------------- 2006 8 5.8 5 ------------------------------------------------------------------------------- 2007 11 19.2 9 ------------------------------------------------------------------------------- 2008 9 10.8 6 ------------------------------------------------------------------------------- 2009 12 18.2 14.5 ------------------------------------------------------------------------------- 2010 8 6.6 6.5 -------------------------------------------------------------------------------
Source: U.S.S.C. Sourcebooks at http:// www.ussc.gov/Data_and_Statistics/ archives.cfm.
TABLE 2: ANTITRUST PRIMARY OFFENSE SENTENCING TRENDS (POST-BOOKER) ------------------------------------------------------------------------------------------------------------------ Number of Offenders Sentences Within Upward Departure Downward Departure Fiscal Year Sentenced Guidelines Range OR Variance OR Variance ------------------------------------------------------------------------------------------------------------------ 2005 (Post-Booker) 11 4 0 7 ------------------------------------------------------------------------------------------------------------------ 2006 12 0 0 12 ------------------------------------------------------------------------------------------------------------------ 2007 15 2 0 13 ------------------------------------------------------------------------------------------------------------------ 2008 24 4 0 20 ------------------------------------------------------------------------------------------------------------------ 2009 20 0 0 20 ------------------------------------------------------------------------------------------------------------------ 2010 16 3 0 13 ------------------------------------------------------------------------------------------------------------------ 2011 (preliminary data) 10 1 1 8 ------------------------------------------------------------------------------------------------------------------ Total 108 14 121 93 ------------------------------------------------------------------------------------------------------------------
Source: U.S.S.C. Sourcebooks at http:// www.ussc.gov/Data_and_Statistics/archives.cfm.
Id. at 1011 (citing 18 U.S.C. § 3572(a)).
The majority also contends that applying closer review in this case is contrary to the approach adopted by our sister circuits in United States v. Henderson, 649 F.3d 955 (9th Cir.2011), and United States v. Grober, 624 F.3d 592 (3d Cir.2010). In those cases, the courts held that, due to substantial congressional involvement, the child pornography guideline at issue was not the product of the Commission's institutional strengths. See Henderson, 649 F.3d at 962 ("Most of the revisions [to the child pornography guideline] were Congressionally-mandated and not the result of [the Commission's] empirical study."); Grober, 624 F.3d at 608 (explaining that the child pornography guideline was "developed largely pursuant to congressional directives"). While a full-scale analysis of the child pornography guideline is not necessary here, I note that the view espoused in Henderson and Grober is not universal. See United States v. Pugh, 515 F.3d 1179, 1201 n. 15 (11th Cir.2008) (holding that the child pornography guidelines "do not exhibit the deficiencies the Supreme Court identified in Kimbrough"). Assuming for the sake of argument that Grober and Henderson were based on sound reasoning, there are significant differences between the child pornography guideline and the antitrust guideline at issue here. In Grober, the court found that the Commission has repeatedly, but "sometimes reluctantly," amended the child pornography guideline in response to explicit congressional directives. 624 F.3d at 607. Additionally, the court in Henderson emphasized that, in an unprecedented action, Congress itself directly amended the child pornography guideline in 2003. Henderson, 649 F.3d at 962. In contrast, Congress has never directly amended the antitrust guideline and, as discussed above, there is no indication that the Commission's hand was unwillingly forced to amend the guideline or that the Commission's research does not support such amendments.
Finally, in Kimbrough the Court held that, because the 100:1 ratio and its "disproportionately harsh sanctions" did not exemplify the Commission's institutional strengths, district courts could vary downward on that basis without abusing their discretion. 552 U.S. at 110, 128 S.Ct. 558 ("Given [the unique history of the 100:1 ratio], it would not be an abuse of discretion for a district court to conclude ... that the crack/powder disparity yields a sentence `greater than necessary' to achieve § 3553(a)'s purposes, even in a mine-run case." (emphasis added)). Here, the majority finds that the Commission's decision to consistently increase antitrust sentences above pre- and post-guidelines practice is not based on empirical research. See Ante at 1038. While such a conclusion would arguably support a downward variance under Kimbrough, it is not clear how this finding supports the district court's substantial upward variance.
Finally, Third Circuit Judge D. Michael Fisher, in his article Still in Balance? Federal District Court Discretion and Appellate Review Six Years after Booker, commented:
49 Duq. L.Rev. 641, 672 (2011) (emphasis added).
