AMENDMENT 678
Section 2R1.1(a) is amended by striking "10" and inserting "12".
Section 2R1.1(b) is amended by striking subdivision (2) as follows:
"(2) If the volume of commerce attributable to the defendant was more than $400,000, adjust the offense level as follows:
Volume of Adjustment to
Commerce (Apply the Greatest) Offense Level
(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.
For purposes of this guideline, the volume of commerce attributable to an individual participant in a conspiracy is the volume of commerce done by him or his principal in goods or services that were affected by the violation. When multiple counts or conspiracies are involved, the volume of commerce should be treated cumulatively to determine a single, combined offense level.",
and inserting the following:
"(2) If the volume of commerce attributable to the defendant was more than $1,000,000, adjust the offense level as follows:
Volume of Adjustment to
Commerce (Apply the Greatest) Offense Level
(A) More than $1,000,000 add 2
(B) More than $10,000,000 add 4
(C) More than $40,000,000 add 6
(D) More than $100,000,000 add 8
(E) More than $250,000,000 add 10
(F) More than $500,000,000 add 12
(G) More than $1,000,000,000 add 14
(H) More than $1,500,000,000 add 16.
For purposes of this guideline, the volume of commerce attributable to an individual participant in a conspiracy is the volume of commerce done by him or his principal in goods or services that were affected by the violation. When multiple counts or conspiracies are involved, the volume of commerce should be treated cumulatively to determine a single, combined offense level.".
The Commentary to §2R1.1 captioned "Application Notes" is amended by striking Note 1 as follows:
"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.",
and inserting the following:
"1. Application of Chapter Three (Adjustments).—Sections 3B1.1 (Aggravating Role), 3B1.2 (Mitigating Role), 3B1.3 (Abuse of Position of Trust or Use of Special Skill), and 3C1.1 (Obstructing or Impeding the Administration of Justice) may be relevant in determining the seriousness of the defendant’s offense. For example, if a sales manager organizes or leads the price-fixing activity of five or more participants, the 4-level increase at §3B1.1(a) should be applied to reflect the defendant’s aggravated role in the offense. For purposes of applying §3B1.2, an individual defendant should be considered for a mitigating role adjustment only if he were responsible in some minor way for his firm’s participation in the conspiracy.".
The Commentary to §2R1.1 captioned "Application Notes" is amended in Note 2 by striking the first sentence as follows:
"In setting the fine for individuals, the court should consider the extent of the defendant’s participation in the offense, his role, and the degree to which he personally profited from the offense (including salary, bonuses, and career enhancement).",
and inserting the following:
"Considerations in Setting Fine for Individuals.—In setting the fine for individuals, the court should consider the extent of the defendant’s participation in the offense, the defendant’s role, and the degree to which the defendant personally profited from the offense (including salary, bonuses, and career enhancement).".
The Commentary to §2R1.1 captioned "Background" is amended in the second paragraph by striking the following:
"The Commission believes that the most effective method to deter individuals from committing this crime is through imposing short prison sentences coupled with large fines. The controlling consideration underlying this guideline is general deterrence.";
in the third paragraph by striking "confinement of six months or longer" and inserting "some period of confinement"; and in the last paragraph by striking the last sentence as follows:
"The statutory maximum fine is $350,000 for individuals and $10,000,000 for organizations, but is increased when there are convictions on multiple counts.".
Reason for Amendment: This amendment responds to the Antitrust Criminal Penalty Enhancement and Reform Act of 2004, Pub. L. 108–237 (the "Act"). The Act increased the statutory maximum term of imprisonment for antitrust offenses under 15 U.S.C. §§ 1 and 3(b) from three to ten years. The amendment responds to congressional concern about the seriousness of antitrust offenses and provides for antitrust penalties that are more proportionate to those for sophisticated frauds sentenced under §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). The Commission has long recognized the similarity of antitrust offenses to sophisticated frauds.
The amendment increases the base offense level for antitrust offenses in §2R1.1 (Bid-Rigging, Price-Fixing or Market-Allocation Agreements Among Competitors ) to level 12. The higher base offense level ensures that penalties for antitrust offenses will be coextensive with those for sophisticated frauds sentenced under §2B1.1 and recognizes congressional concern about the inherent seriousness of antitrust offenses. The 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. Raising the base offense level of §2R1.1 helps restore the historic proportionality in the treatment of antitrust offenses and sophisticated frauds.
The "volume of commerce" table at §2R1.1(b)(2) is amended to provide up to 16 additional offense levels for the defendant whose offense involves more than $1,500,000,000, while the new table’s first threshold is raised from $400,000 to $1,000,000. The new volume of commerce table: (1) recognizes the depreciation in the value of the dollar since the table was last revised in 1991; (2) responds to data indicating that the financial magnitude of antitrust offenses has increased significantly; and (3) provides greater deterrence of large scale price-fixing crimes.
Application Note 1 to §2R1.1 is amended to emphasize the potential relevance of such Chapter Three enhancements as §3B1.1 (Aggravating Role), §3B1.3 (Abuse of Position of Trust or Use of Special Skill), and §3C1.1 (Obstructing or Impeding the Administration of Justice) in determining the appropriate sentence for an antitrust offender. Application Note 2 also is amended to highlight the potential relevance of the defendant’s role in the offense in determining the amount of fine to be imposed. Finally, the amendment strikes outdated background commentary.
Effective Date: The effective date of this amendment is November 1, 2005.