Sentencing Advocacy

• Pages: 225-251

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CHAPTER X

SENTENCING ADVOCACY

A. Introduction

The vast majority of corporate defendants charged with an antitrust

offense enter negotiated plea agreements with the U.S. Department of

Justice, Antitrust Division (Antitrust Division) calling for an agreed-

upon joint sentencing recommendation to the court.1 In addition, the

large majority of individual defendants charged with an antitrust offense

also enter negotiated plea agreements with the Antitrust Division. Thus,

the majority of sentencing advocacy in antitrust cases, as with most other

federal criminal cases, takes place during the plea negotiation process

between counsel for the government and counsel for the defendant.2

1. See Scott D. Hammond, Deputy Assistant Att’y Gen. for Crim. Enf’t,

U.S. Dep’t of Justice, Antitrust Div., The U.S. Model of Negotiated Plea

Agreements: A Good Deal with Benefits for All, Remarks Before the

OECD Competition Committee Working Party No. 3 (Oct. 17, 2006)

[hereinafter The U.S. Model of Negotiated Plea Agreements], available

at http://www.justice.gov/atr/speech/us-model-negotiated-plea-

agreements agreements-good-deal-benefits-all (noting that more than 90

percent of corporate defendants entered such plea agreements over the

prior twenty-five years).

2. In Lafler v. Cooper, 566 U.S. 156 (2012) and Missouri v. Frye, 566 U.S.

134 (2012), the Supreme Court recognized the importance of plea

negotiations and the corresponding right to effective assistance of

counsel. See Lafler, 566 U.S. at 170, 186 (“Ninety-seven percent of

federal convictions . . . are the result of guilty pleas. . . . [The] criminal

justice [system] today is for the most part a system of pleas, not a system

of trials. [Plea bargaining is no longer an] adjunct to the criminal justice

system; it is the criminal justice system.”) (internal quotation marks and

citations omitted). In Frye, the Court held that the Sixth Amendment right

to effective assistance of counsel requires that “defense counsel . . .

communicate formal offers from the prosecution to accept a plea on terms

and conditions that may be favorable.” Frye, 566 U.S. 134 at 145

(referencing ABA Standards for Criminal Justice, Pleas of Guilty 14-

3.2(a) (3d ed. 1999), which recommend that defense counsel “promptly

communicate and explain to the defendant all plea offers made by the

prosecuting attorney.”). In Lafler, the defendant rejected a plea offer,

226 Antitrust Cartel Leniency and Sentencing Handbook

Even though United States v. Booker3 made the United States Sentencing

Guidelines (Sentencing Guidelines) advisory, rather than binding on the

courts, adherence to and departure from them remain at the heart of plea

negotiations between the government and defense counsel in criminal

antitrust cases. Federal prosecutors are bound to make sentencing

recommendations based on an individualized assessment of the facts and

circumstances of each case, as well as the history and characteristics of

the defendant, but in the typical case, prosecutors generally advocate for

a sentence within the applicable Sentencing Guidelines range.4 The

Sentencing Guidelines remain the “starting point and the initial

benchmark” for the sentencing court.5 The Antitrust Division will oppose

departures not supported by the relevant facts or law. However, as

detailed in other Chapters, it is possible to obtain sentencing benefits for

clients under a number of sections in the Sentencing Guidelines when

warranted by the facts and the law. The Antitrust Division has repeatedly

stated that the earlier plea negotiations begin and the defendant agrees to

cooperate, the greater its flexibility will be in its sentencing

recommendation. The Antitrust Division has repeatedly articulated its

view that early cooperation from cartel members is critical to the success

of its investigations and prosecutions, and that it is prepared to favorably

reward those companies and individuals willing to provide that

assistance.6 Defense counsel advocacy of the timeliness and value to the

investigation of his or her client’s cooperation will be critical in reducing

the penalties otherwise faced by the client.

allegedly based on his attorney’s advice about the prosecution’s ability to

prove the case against him, and was subsequently convicted at trial. The

Court held that “a defendant has the right to effective assistance of

counsel in considering whether to accept [a plea offer].” 566 U.S. at 168.

3. 543 U.S. 220 (2005).

4. See U.S. DEP’T OF JUSTICE, U.S. DEP’T OF JUSTICE, JUST. MANUAL

9-27.730 (2018), available at https://www.justice.gov/jm/jm-9-27000-

principles-federal-prosecution #9-27.730; see also Scott D. Hammond,

Assistant Att’y Gen. for Crim. Enf’t, U.S. Dep’t of Justice, Antitrust Div.,

Antitrust Sentencing in the Post-Booker Era: Risks Remain High for Non-

Cooperating Defendants, Remarks Before the ABA Section of Antitrust

Law Spring Meeting (Mar. 30, 2005), available at

http://www.justice.gov/atr/speech/antitrust-sentencing-post-booker-era-

risks-remain-high-non-cooperating-defendants.

5. Gall v. United States, 552 U.S. 38, 49 (2007).

6. The U.S. Model of Negotiated Plea Agreements at 14.