United States v. VandeBrake
679 F.3d 1030, 2012 U.S. App. LEXIS 8584, 2012 WL 1448486 (2012)
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Rule of Law:
A district court's decision to vary upward from the advisory Sentencing Guidelines is not substantively unreasonable if it is based on a well-reasoned policy disagreement with a particular guideline that is tethered to the specific facts of the case, in conjunction with other permissible sentencing factors such as the defendant's lack of remorse.
Facts:
- Steven VandeBrake took over his family's concrete business in 1994, which was later sold to a larger corporation, GCC, for whom VandeBrake then worked as a sales manager.
- From January 2006 through August 2009, VandeBrake, on behalf of his company GCC Alliance Concrete (Alliance), engaged in a price-fixing conspiracy with a competitor.
- From January 2008 through August 2009, VandeBrake orchestrated a bid-rigging conspiracy between Alliance and a second competitor.
- From June 2008 through March 2009, VandeBrake initiated and participated in a separate bid-rigging conspiracy with a third competitor.
- The conspiracies involved a total volume of commerce exceeding $5.5 million.
- VandeBrake was already a wealthy individual when he engaged in the conspiracies, with a net worth over $10 million.
- The Department of Justice began investigating after a competitor reported the conspiracy under the Antitrust Division’s Leniency Program.
Procedural Posture:
- The United States filed a criminal information against Steven VandeBrake in the U.S. District Court for the Northern District of Iowa.
- VandeBrake and the government negotiated a binding plea agreement under Fed. R. Crim. P. 11(c)(1)(C) calling for a 19-month sentence.
- The district court indicated it would not accept the binding plea agreement.
- VandeBrake subsequently entered an unconditional guilty plea pursuant to a non-binding plea agreement under Fed. R. Crim. P. 11(c)(1)(B).
- A Presentence Investigation Report calculated an advisory guidelines range of 21-27 months of imprisonment.
- The district court, after a sentencing hearing, varied upward from the guidelines and imposed a sentence of 48 months imprisonment and a fine of $829,715.85.
- VandeBrake (appellant) appealed the sentence to the U.S. Court of Appeals for the Eighth Circuit, arguing it was substantively unreasonable.
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Issue:
Is a sentence that varies upward from the advisory guidelines range substantively unreasonable when the variance is based on the district court's policy disagreement with the applicable antitrust guideline and the defendant's perceived lack of remorse?
Opinions:
Majority - Bye, Circuit Judge
No. The sentence is not substantively unreasonable because a district court has discretion to vary upward from the sentencing guidelines based on a policy disagreement, particularly when it is tied to the specific facts of the case. VandeBrake waived any challenge to the district court's handling of his initial binding plea agreement by subsequently entering an unconditional non-binding plea. The district court's upward variance was permissible, as it was based on two valid factors: 1) a specific policy disagreement with the antitrust guideline's assumption that markups decline with volume, which the court found did not apply to VandeBrake's fixed-price scheme, and 2) VandeBrake's lack of remorse, a permissible consideration under 18 U.S.C. § 3553(a). The court rejected the dissent's call for 'closer review' under Kimbrough, finding that since the variance was based on the particular facts of an individual case, deferential review for substantive reasonableness was appropriate.
Dissenting - Beam, Circuit Judge
Yes. The sentence is substantively unreasonable and procedurally flawed. The district court committed significant procedural error by effectively replacing the applicable antitrust guideline (U.S.S.G. § 2R1.1) with the fraud guideline (§ 2B1.1) instead of properly calculating the range under the correct guideline first. Furthermore, the majority erred by failing to apply the 'closer review' standard suggested in Kimbrough v. United States for variances based on policy disagreements with guidelines that, unlike the one in Kimbrough, exemplify the Sentencing Commission's institutional expertise and empirical research. The antitrust guideline is a product of this expertise, and the district court's categorical disagreement with it is not entitled to deferential review, resulting in an excessively disparate sentence that is a statistical anomaly.
Concurring - Riley, Chief Judge
No. The reasoning and conclusion of the majority opinion are correct. However, I write separately to disassociate from the district court's inappropriate comments regarding the defendant's economic status, race, heritage, and religion, as such factors are not a proper basis for any sentence.
Analysis:
This case reinforces the significant discretion afforded to district court judges in the post-Booker sentencing era, affirming their ability to vary substantially from the Sentencing Guidelines based on policy disagreements. The decision clarifies that such disagreements are most defensible when linked to case-specific facts that undermine the guideline's underlying empirical assumptions. However, the sharp dissent highlights a critical, unresolved tension from the Supreme Court's decision in Kimbrough: what standard of review applies when a judge disagrees with a guideline that is a product of the Sentencing Commission's core institutional expertise? This ruling deepens the circuit split on the issue and signals that the scope of judicial discretion in departing from such expert-driven guidelines remains a contentious area of law.
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