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Judicial Policy Nullification of the Antitrust Sentencing Guideline

41 Pages Posted: 1 Aug 2012 Last revised: 29 Mar 2013

Frederick Thide

Boston College Law Review

Date Written: April 31, 2012


The Federal Sentencing Guidelines provide for special treatment of hard-core cartel activity to ensure that penalties for antitrust crimes effectively deter and punish criminals. The U.S. Supreme Court’s transformational sentencing cases, however, have returned significant discretion to sentencing judges, including the discretion to vary from the Guidelines on policy grounds. Yet, judicial discretion in sentencing is not unlimited. Judges are required by statute to impose sentences that are “sufficient, but not greater than necessary” to achieve the goals of sentencing, subject to appellate review for reasonableness. This Note analyzes whether there is a sustainable basis for judicial policy disagreement with the Antitrust Guideline’s use of a proxy to measure economic harm. It proposes that appeals courts apply a sliding scale framework when reviewing policy-based variances, and argues that judicial discretion may, in some instances, promote the goals of white-collar sentencing, including moral condemnation. Finally, this Note concludes that judicial discretion to vary from the Antitrust Guideline’s harm proxy, appropriately cabined by appellate review, would not undermine antitrust sentencing policy.

Keywords: Antitrust, Sentencing, Volume of Commerce, Kimbrough, VandeBrake, Booker

Suggested Citation

Thide, Frederick, Judicial Policy Nullification of the Antitrust Sentencing Guideline (April 31, 2012). Boston College Law Review, 54 B.C. L. Rev. 861. Available at SSRN:

Frederick Thide (Contact Author)

Boston College Law Review ( email )

885 Centre Street
Newton, MA 02459-1163
United States

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