Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Justice Department Asks High Court to Reject Petition Questioning Executive’s Sentence in Price Fixing Case, (Jan 24, 2013)

By Jeffrey May, J.D.

The U.S. Supreme Court should deny a petition for certiorari filed by a former ready-mix concrete executive who questions the sentence he received after he pleaded guilty to participating in separate bid rigging and price fixing conspiracies, according to a brief filed with the Court by the Department of Justice on January 22, 2013 (VandeBrake v. U.S., Dkt. 12-488).

Steven Keith VandeBrake filed the petition on October 18, 2012, seeking review of an April 27, 2012, decision of the U.S. Court of Appeals in St. Louis (679 F.3d 1030, 2012-1 Trade Cases ¶77,880), upholding “the longest pure antitrust sentence in American history.”

In that action, the divided appellate court upheld VandeBrake's 48-month prison sentence. The court concluded that the sentence did not require a “closer review” and was not substantively unreasonable, even though the district court varied upward from the advisory sentencing guidelines range (21 to 27 months) for antitrust violations set forth in U.S. Sentencing Guidelines Manual (U.S.S.G.) § 2R1.1. A $829,715 fine also was upheld.

VandeBrake argued in his petition that the appellate court should have subjected his above-Guidelines sentence to closer review and erred when it held that the Sentencing Commission does not exercise its characteristic institutional role when it modifies a guideline in response to congressional action. The appellate court held that “closer review” was not warranted because the Sentencing Commission’s revisions to the antitrust guideline “have largely been in response to Congressional acts” rather than “the Commission’s exercise of its characteristic institutional role.” VandeBrake also contended that, in affirming his sentence, the appellate court improperly created an exception to the statutory requirement that sentencing courts consider the need to avoid unwarranted sentencing disparities.

The Justice Department contends that VandeBrake's arguments lack merit and do not warrant the Court’s review. According to the government, the appellate court applied the proper standard of review to VandeBrake's sentence. Although VandeBrake sought review to decide “whether the Sentencing Commission dispenses with its ‘characteristic institutional role’ when it modifies a guideline in response to congressional action,” the appellate court's determination of the proper standard of review did not turn primarily on whether the antitrust guideline “exemplif[ied] the Commission’s exercise of its characteristic institutional role.” The government also suggested that VandeBrake overstated the division of authority among the appellate courts on the appropriate standard of review and that the case was a poor vehicle for resolving questions related to the scope or nature of “closer review.”

Attorneys: Mark E. Weinhardt (Weinhardt & Logan, P.C.) for petitioner. Donald B. Verrilli, Jr., Solicitor General, for respondent.

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