Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Tough Prison Sentence on Former Concrete Executive Stands, (Feb 25, 2013)

By Jeffrey May, J.D.

The U.S. Supreme Court today denied a petition for certiorari filed by Steven Keith VandeBrake, a former ready-mix concrete executive, seeking review of the sentence he received after pleading guilty to participating in separate bid rigging and price fixing conspiracies with three different companies in northern Iowa. Left standing is a 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” (VandeBrake v. U.S., Dkt. 12-488).

A divided three-judge panel of the Eighth Circuit 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 filed the petition for review on October 18, 2012. In his petition, VandeBrake specifically asked: (1) whether the appellate court correctly held that when the Sentencing Commission modifies a Guideline in response to congressional action, the Guideline no longer reflects the Commission's “characteristic institutional role,” such that a district court's rejection of the Guideline on policy grounds is exempt from “closer review” under Kimbrough v. U.S., 552 U.S. 85 (2007); and (2) whether the appellate court correctly held that when a sentencing court exercises its discretion under Kimbrough to reject a Sentencing Guideline on policy grounds, the sentencing court is no longer required to consider, under 18 U.S.C. Sec. 3553(a)(6), whether its sentence avoids unwarranted disparities.

VandeBrake argued that the sentencing judge based the sentence on his “personal philosophical views about the Sherman Act.” VandeBrake pointed out that the sentencing judge had “policy disagreements with the Sentencing Guidelines’ relatively lenient treatment of antitrust violations ….”

The Department of Justice, in its January 22, 2013, filing with the Supreme Court, called for denial of the petition for review because the appellate court applied the proper standard of review to VandeBrake's sentence. 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.

News: Antitrust AntitrustDivisionNews