Common use of Pursuant to Fed Clause in Contracts

Pursuant to Fed. ▇. ▇▇▇▇. P. 11(c)(1)(C) and subject to the full, truthful, and continuing cooperation of the defendant and its related entities, as defined in Paragraph 13 of this Plea Agreement, the United States and the defendant agree that the appropriate disposition of this case is, and agree to recommend jointly that the Court impose, a sentence requiring the defendant to pay to the United States a criminal fine of $107,923,572, pursuant to 18 U.S.C. § 3571(d), payable in full before the fifteenth (15th) day after the date of judgment (“the recommended sentence”). The parties agree that there exists no aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the U.S. Sentencing Commission in formulating the Sentencing Guidelines justifying a departure pursuant to U.S.S.G. § 5K2.0. The parties agree not to seek at the sentencing hearing any sentence outside of the Guidelines range nor any Guidelines adjustment for any reason that is not set forth in this Plea Agreement. The parties further agree that the recommended sentence set forth in this Plea Agreement is reasonable. (a) The United States and the defendant agree to recommend that the Court, in determining the Guidelines Fine Range for a corporate defendant for a violation of 15 U.S.C. § 1, apply the Chapter 8- Sentencing of Organizations guidelines, and the applicable offense guideline, §2R1.1- Antitrust Offenses, as follows: i. Pursuant to U.S.S.G. §8C2.4(b) and §2R1.1(d)(1), the base fine is $72,238,000, 20% of $361,190,000, the volume of affected commerce; ii. The Defendant’s Culpability Score is 9 and is determined, pursuant to U.S.S.G. §8C2.5, as follows: 1. Base Culpability Score, U.S.S.G. §8C2.5: 5 2. Involvement in or Tolerance of Criminal Activity, U.S.S.G. §8C2.5(b)(1): +5 3. Acceptance of Responsibility, U.S.S.G. §8C2.5(g)(3): -1 4. Based on a Culpability Score of 9, the minimum and maximum multipliers are 1.80 to 3.60 (U.S.S.G. §8C2.6). iii. The Guidelines Fine Range is $130,028,400 to $260,056,800. (b) The defendant understands that the Court will order it to pay a $400 special assessment, pursuant to 18 U.S.C. § 3013(a)(2)(B), in addition to any fine imposed. (c) In light of the availability of civil causes of action, which potentially provide for a recovery of a multiple of actual damages, the recommended sentence does not include a restitution order for the offense charged in the Information. (d) Both parties will recommend that no term of probation be imposed, but the defendant understands that the Court’s denial of this request will not void this Plea Agreement unless the Court orders the installation of a court-imposed compliance monitor, in which case the Plea Agreement, except for subparagraph 12(b) below, will be rendered void and the defendant shall be free to withdraw its guilty plea as provided in subparagraph 12(b). (e) The United States and the defendant jointly submit that this Plea Agreement, together with the record that will be created by the United States and the defendant at the plea and sentencing hearings, and the further disclosure described in Paragraph 11, will provide sufficient information concerning the defendant, the crime charged in this case, and the defendant’s role in the crime to enable the meaningful exercise of sentencing authority by the Court under 18 U.S.C. § 3553. The United States and defendant agree to request jointly that the Court accept the defendant’s guilty plea and impose sentence on an expedited schedule as early as the date of arraignment, based upon the record provided by the defendant and the United States, under the provisions of Fed. ▇. ▇▇▇▇. P. 32(c)(1)(A)(ii) and U.S.S.G. § 6A1.1. The Court’s denial of the request to impose sentence on an expedited schedule will not void this Plea Agreement. (f) The United States contends that had this case gone to trial, the United States would have presented evidence to prove that the gain derived from or the loss resulting from the charged offense is sufficient to justify a fine of $107,923,572, pursuant to 18 U.S.C. § 3571(d). For purposes of this plea and sentencing only, the defendant waives its rights to contest this calculation.