AMENDMENT 377
Section 2R1.1(a) is amended by deleting "9" and inserting in lieu thereof "10".
Section 2R1.1(b)(2) is amended by deleting "less than $1,000,000 or more than $4,000,000" and inserting in lieu thereof "more than $400,000"; and by deleting:
"(A) Less than $1,000,000 subtract 1
(B) $1,000,000 - $4,000,000 no adjustment
(C) More than $4,000,000 add 1
(D) More than $15,000,000 add 2
(E) More than $50,000,000 add 3",
and inserting in lieu thereof:
"(A) More than $400,000 add 1
(B) More than $1,000,000 add 2
(C) More than $2,500,000 add 3
(D) More than $6,250,000 add 4
(E) More than $15,000,000 add 5
(F) More than $37,500,000 add 6
(G) More than $100,000,000 add 7.".
Section 2R1.1 is amended by deleting:
"(c) Fines
A fine shall be imposed in addition to any term of imprisonment. The guideline fine range for an individual conspirator is from 4 to 10 percent of the volume of commerce, but not less than $20,000. The fine range for an organization is from 20 to 50 percent of the volume of commerce, but not less than $100,000.",
and inserting in lieu thereof:
"(c) Special Instruction for Fines
(1) For an individual, the guideline fine range shall be from one to five percent of the volume of commerce, but not less than $20,000.".
The Commentary to §2R1.1 captioned "Application Notes" is amended by deleting:
"1. Because the guideline sentences depend on the volume of commerce done by each firm, role in the offense is implicitly taken into account. Accordingly, the provisions of §3B1.1 (Aggravating Role) are to be applied only in unusual circumstances. An increase for role under §3B1.1 might be appropriate only where a defendant actually coerced others into participating in a conspiracy -- an unusual circumstance. Conversely, a decrease for role under §3B1.2 (Mitigating Role) would not be appropriate merely because an individual defendant or his firm did not profit substantially from the violation. An individual defendant should be considered for a downward adjustment for a mitigating role in the offense only if he was responsible in some minor way for his firm’s participation in the conspiracy. A complementary bidder who did not win a bid would not for that reason qualify for a downward adjustment, but a low-level employee who participated in only one of several agreements constituting a conspiracy would.",
and inserting in lieu thereof:
"1. The provisions of §3B1.1 (Aggravating Role) and §3B1.2 (Mitigating Role) should be applied to an individual defendant as appropriate to reflect the individual’s role in committing the offense. For example, if a sales manager organizes or leads the price-fixing activity of five or more participants, a 4-level increase is called for under §3B1.1. An individual defendant should be considered for a downward adjustment under §3B1.2 for a mitigating role in the offense only if he was responsible in some minor way for his firm’s participation in the conspiracy.".
The Commentary to §2R1.1 captioned "Background" is amended in the third paragraph by deleting "four" and inserting in lieu thereof "six".
The Commentary to §2R1.1 captioned "Background" is amended by deleting the fourth paragraph as follows:
" The guideline imprisonment terms represent a substantial change from pre-guidelines practice. Under pre-guidelines practice, approximately 39 percent of all individuals convicted of antitrust violations were imprisoned. Considering all defendants sentenced, the average time served under pre-guidelines practice was only forty-five days. The guideline prison terms are, however, consistent with the parole guidelines. The fines specified in the guideline represent substantial increases over pre-guidelines practice. Under pre-guidelines practice, the average fine for individuals was only approximately $27,000; for corporations, it was approximately $160,000.".
Reason for Amendment: This amendment increases the offense levels for antitrust violations to make them more comparable to the offense levels for fraud with similar amounts of loss. The base offense level for antitrust violations starts higher than the base offense level for fraud violations to reflect the serious nature of and the difficulty of detecting such violations, but the offense levels for antitrust offenses based on volume of commerce increase less rapidly than the offense levels for fraud, in part, because, on the average, the level of mark-up from an antitrust violation may tend to decline with the volume of commerce involved. This amendment also reduces the minimum guideline fine level based on the volume of commerce to reflect a marginal shift from fines to imprisonment as the more effective means to deter antitrust offenses. The provision addressing fines for organizational defendants in the current guideline is deleted. Such fines are addressed by the provisions pertaining to the sentencing of organizational defendants that are added by a separate amendment (amendment 422).
Effective Date: The effective date of this amendment is November 1, 1991.