United States v. Jeanne E. Germeil ( 2023 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
Nos. 19-14942 & 19-14961
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JEANNE E. GERMEIL,
Defendant-Appellant.
____________________
Appeals from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cr-20769-UU-1
____________________
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Before JORDAN, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
Dr. Jeanne Germeil was convicted of eleven counts of dis-
pensing opioids without a legitimate medical purpose and outside
the usual course of professional practice—basically, of running her
South Florida medical practice as a “pill mill,” in violation of 21
U.S.C. section 841(a)(1). Between her conviction and sentencing,
she fled the country. Because, while on release, she did not show
at her sentence hearing as ordered, she was convicted of failure to
appear under 18 U.S.C. sections 3146(a)(1) and 3147 and of con-
tempt of court under 18 U.S.C. section 401(3). In total, she was
sentenced to 210 months in prison.
On appeal, Dr. Germeil challenges the admissibility of the
opinion testimony of the government’s medical expert, the rejec-
tion of her proposed “good faith” defense jury instruction and her
motion for judgment of acquittal, the sufficiency of the evidence to
convict her of the drug counts, and the reasonableness of her sen-
tence. We affirm her convictions and sentence.
FACTUAL BACKGROUND
Drug Enforcement Administration Special Agent Gene
Grafenstein investigated Dr. Germeil. He used two confidential
sources, Mr. Lebrak Morales Gomez and Ms. Yanexi Hernandez,
and two undercover officers, Task Force Officer Danniel Guell and
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Special Agent Derek Maxey, to see whether any of them could get
Dr. Germeil to prescribe them opioids (such as Oxycodone,
Percocet, and Dilaudid) without showing medical necessity. The
four would-be patients wore recording equipment during the visits
with Dr. Germeil and eventually obtained at least one prescription
each. Based on these prescriptions, Agent Grafenstein got a war-
rant to search Dr. Germeil’s office, which he executed. Agent Graf-
enstein seized Dr. Germeil’s patient files and payment logs and
found nearly thirty thousand dollars in cash in her purse.
Around the time of the search, Agent Grafenstein spoke
with Dr. Germeil. She admitted that she was certified in family
medicine, but not in pain management. She gave the basics about
her practice: she owned it with her husband Mr. Jean-Rene
Foureau; “[s]he handled all the medical aspects” as the only medi-
cal member on staff, and he handled the business aspects; he ran
searches through Florida’s drug monitoring program on all pa-
tients, except that she would run them “only if he was not present
and only for patients that were [diagnosed with] either chronic pain
or [human immunodeficiency virus].” When asked about a typical
initial visit, she said that she refused to see anyone without mag-
netic resonance imaging results, and that she had patients sign in,
fill out an intake questionnaire, and wait in the waiting room and
had staff take the patients’ vital signs before she saw them.
The government’s expert witness, Dr. Reuben Hoch, re-
viewed the footage from the confidential sources and undercover
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officers’ visits as well as Dr. Germeil’s patient files for them and for
ten other patients. He concluded that Dr. Germeil did not satisfy
the appropriate standard of medical care.
PROCEDURAL HISTORY
A grand jury indicted Dr. Germeil on sixteen counts of dis-
pensing a controlled substance. Each of the sixteen incidents oc-
curred on different days between March 2016 and November 2017
and involved one of the fourteen patients whose files Dr. Hoch re-
viewed: each patient, including the undercover officers, partici-
pated in exactly one incident, except that the confidential sources
were each involved in two.
At trial, the government presented testimony from Agent
Grafenstein, Agent Maxey, Officer Guell, Mr. Morales Gomez, Ms.
Hernandez, and Dr. Hoch, as well as an intelligence analyst from
the Drug Enforcement Administration (to explain the number of
pills Dr. Germeil prescribed), someone from the Florida Depart-
ment of Health (to explain the drug monitoring program), and
three of the patients listed in the indictment. The government also
introduced into evidence Dr. Germeil’s patient files for the confi-
dential sources, undercover officers, and ten other patients, the
charged prescriptions that Dr. Germeil wrote them, her payment
logs, information about Dr. Germeil queried from the drug moni-
toring program, the Drug Enforcement Administration analyst’s
analysis of this information, the Florida regulation governing pain
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prescription standards (rule 64B8-9.013), and the footage from the
investigation, with transcripts and associated materials.
Agent Grafenstein testified that Dr. Germeil admitted to
conducting a physical examination by touching only the area of the
body in which the patient claimed pain—and to, “at her preroga-
tive,” skipping a physical exam altogether. She told him she did not
prescribe physical therapy—or any other therapy—because her
practice did not offer it and she was not going to refer her patients
to an outside source of treatment. “All she d[id] [wa]s write for
pills,” Agent Grafenstein said. The patient records recovered dur-
ing the investigation showed that Dr. Germeil used “boilerplate
language . . . in pretty much every office visit for everyone.” The
payments made to Dr. Germeil during the investigation were
“[e]ntirely in cash.” Importantly, Agent Grafenstein described how
Dr. Germeil prescribed Oxycodone to Officer Guell after Ms. Her-
nandez introduced Officer Guell to Dr. Germeil as Ms. Hernan-
dez’s stepbrother, even though Officer Guell presented Dr. Ger-
meil with the same magnetic resonance imaging results that, a cou-
ple of months earlier, Dr. Germeil had inspected to conclude that
“there was nothing wrong” with Officer Guell and that she “could
not see him” as a patient.
Officer Guell corroborated Agent Grafenstein’s testimony
and stated that his magnetic resonance imaging results showed “no
visible signs or necessity to see the doctor.” Officer Guell also said
that when he got his prescription Dr. Germeil did a one- or two-
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minute physical examination to listen to his breathing and examine
his back, “had [him] read the dos and don’ts regarding the con-
trolled substances,” and gave him his prescription. He told her he
shared Oxycodone pills with his sister, and Dr. Germeil still pre-
scribed him the pills. According to Dr. Germeil’s patient file for
Officer Guell’s undercover persona, the encounter lasted around
sixty minutes and she discussed with him “psychotherapy, counsel-
ing, behavior” support therapy, his weight, his diet, exercise, and
at-home safety precautions. But, according to Officer Guell, the
encounter lasted thirteen minutes, and Dr. Germeil did not discuss
any of these topics.
Dr. Germeil asked her patients to indicate their pain level on
a scale from one to ten, with one being the least amount of pain.
Agent Maxey testified that he flagged a pain level of three. Agent
Maxey’s physical examination lasted less than a minute, he said,
and consisted of Dr. Germeil listening to his breathing with a steth-
oscope and touching his back while asking him where his pain was
located. He did not indicate feeling pain when she touched his
back, instead reporting that was where the pain was but that it did
not hurt when she pushed on it. Agent Maxey did not remember
making certain markings on Dr. Germeil’s forms that then ap-
peared there: e.g., checking the “Work Accident” box or writing a
circle or an “A” for “Aching” on a diagram of the human back. And,
although Dr. Germeil’s file for his undercover persona stated that
during their sixty-minute encounter, they discussed diet, exercise,
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at-home safety precautions, a diabetes program, possible follow-
ups with specialists, and the need for emergency services or hospi-
talization if his symptoms persisted, Agent Maxey testified that Dr.
Germeil did not discuss any of these subjects with him. All in all,
he said that he spent at most fifteen minutes—not sixty—with Dr.
Germeil before she wrote him an Oxycodone prescription.
Mr. Morales Gomez testified that it was “[n]ot difficult at all”
to get a prescription from Dr. Germeil. His physical examination
was “[n]o more than two minutes” long, during which Dr. Germeil
“grabbed [his] shoulder really quick[ly].” His total visit was “ap-
proximately [seventeen] minutes long”—not the around sixty
minutes documented in his patient file. He gave his reason for see-
ing Dr. Germeil as feeling some “discomfort” in his shoulder, and
he left a spot on a form blank because he “had no pain.” Even
though he did not describe his pain during his visit as “strong,” Dr.
Germeil’s patient file for him said that he had been having “strong
right shoulder pain since a few years back.” Mr. Morales Gomez
testified that, although Dr. Germeil noted in his patient file that she
recommended a follow-up visit and talked to him about his diet,
she did not do either. He added that a year later he got an Oxyco-
done prescription from Dr. Germeil without her performing a
physical examination of him—or anything more than a cursory in-
quiry into his pain level. Even after Mr. Morales Gomez told her
he sold his prescription medications to help a family member in
Cuba, she prescribed him more Oxycodone, though she informed
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him that he was not supposed to sell it. Mr. Morales Gomez testi-
fied that Dr. Germeil encouraged him to fill his prescriptions after
6:00 p.m. so pharmacists couldn’t call her office to “verify” they
were “actual prescription[s].” Mr. Morales Gomez made five visits
to Dr. Germeil’s office in total, he said, and got a prescription for
thirty milligrams of Oxycodone each visit.
Ms. Hernandez testified that when she went to Dr. Ger-
meil’s office to fill out new-patient paperwork, she intentionally left
some information blank, including her pain level on Dr. Germeil’s
one-to-ten scale. Yet the paperwork later had a five circled. When
Dr. Germeil saw her, Ms. Hernandez was in no way injured and
did not have any pain, but Dr. Germeil wrote her the opioid pre-
scriptions she sought. Dr. Germeil wrote Ms. Hernandez prescrip-
tions without giving her a physical examination or asking her about
her pain level. Ms. Hernandez told Dr. Germeil that she sold her
pills—her patient file even stated: “I share [O]xycodone [thirty mil-
ligrams]”—but Dr. Germeil did not tell her not to sell her pills or
otherwise discharge her as a patient. Ms. Hernandez saw Dr. Ger-
meil eight times and was provided a pain prescription at the end of
each visit. Ms. Hernandez testified that contrary to what her pa-
tient file said, each of her visits with Dr. Germeil lasted fifteen
minutes maximum, not sixty. Also contrary to the patient file, Dr.
Germeil did not bring up diet or physical therapy as aspects of treat-
ment with her, did not discuss at-home safety precautions, did not
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advise her to call emergency services or go to the hospital if her
symptoms persisted, and did not tell her to take a drug test.
Dr. Hoch testified that rule 64B8-9.013 and associated regu-
lations provided the standard of care in Florida for doctors prescrib-
ing opioids. He described the four-step process that a doctor
should take in treating a patient claiming pain: (1) review the pa-
tient’s subjective complaint, (2) conduct a physical examination
and other appropriate tests (such as magnetic resonance imaging,
x-ray, and blood tests) to obtain objective findings, (3) diagnose the
condition responsible for the pain, and (4) devise a “multifaceted”
plan, of which “[m]edications are only one aspect,” to treat the pain
and the “human being as a whole.” Dr. Hoch explained that Flor-
ida required doctors to keep “comprehensive” patient files so that,
when necessary, doctors could defend their medical decisions as le-
gitimate and facilitate the transfer of information. Dr. Hoch testi-
fied that he “couldn’t really tell what was going on” in the charged
patient interactions because Dr. Germeil failed to keep proper
medical records. For example, as to a December 9, 2015 patient
visit, Dr. Hoch “need[ed] a little bit more information regarding
how [the patient’s] shoulder pain occurred to understand why [the
patient was] given an opioid at all.” Dr. Hoch also stated that Dr.
Germeil conducted “[v]ery sparse,” “not targeted,” “very weak and
lame attempt[s] at a physical examination,” and that her “tem-
plated records” were “very weak attempt[s] at a template.” Dr.
Hoch concluded that for each of the counts, Dr. Germeil failed to
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meet the standard of care and prescribed controlled substances
without a legitimate medical purpose.
The Drug Enforcement Administration intelligence analyst,
Ms. Monica Carter, testified that, from February 2016 through Sep-
tember 2017, Dr. Germeil wrote 7,623 Oxycodone prescriptions,
yielding a total of 786,807 pills; 2,915 Percocet prescriptions, yield-
ing a total of 306,294 pills; and 3,221 Dilaudid prescriptions, yield-
ing a total of 365,626 pills. Dr. Hoch called this quantity of pills—
“almost 1.5 million” in a nineteen- or twenty-month period—“a
staggeringly high amount of medication.” Along similar lines, Dr.
Hoch testified that, of the “thousands of patients” he treated in his
twenty-five years as a doctor, fewer than five percent received
“[thirty] milligrams of Oxycodone or stronger” on their first visit.
But many prescriptions that Dr. Germeil wrote were for thirty mil-
ligrams of Oxycodone or stronger.
After the government rested, Dr. Germeil moved for a judg-
ment of acquittal. See Fed. R. Crim. P. 29(a). Dr. Germeil con-
tended that the government presented “no reliable evidence that
[she] prescribed to the[] patients without medical necessity.” She
maintained that the patients “had real injuries” and received pain
prescriptions from licensed doctors both before and after she
treated them and that Dr. Hoch based his conclusion that she was
guilty of prescribing without medical necessity solely on her “inad-
equate notetaking and file keeping.” The district court denied the
motion because the government had presented direct evidence
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together with “very powerful” circumstantial evidence that Dr.
Germeil wrote medically unnecessary pain prescriptions.
In her defense, Dr. Germeil called her husband and business
partner Mr. Foureau, one patient listed in the indictment, a patient
turned employee, and four other patients. The defense also admit-
ted thirty-eight letters from Dr. Germeil’s practice discharging pa-
tients who lied and seemed to be “doctor shopping” for pain pills,
Dr. Germeil’s curriculum vitae and educational record, pictures of
her medical office, a lab order for Mr. Morales Gomez, a patient
form and magnetic resonance imaging results for Officer Guell, and
Agent Maxey’s patient file.
After Dr. Germeil rested, she renewed her motion for judg-
ment of acquittal, arguing the government did not prove her guilt
beyond a reasonable doubt because there was “no reason to believe
that she did not have good faith in prescribing to the[] patients.”
The district court denied the motion. It said that Dr. Germeil
would “have to convince the jury.”
Dr. Germeil asked the district court to instruct the jury on
the good faith defense. The government opposed this request.
The district court sided with the government, deciding not to give
the instruction because the good faith defense was already “ade-
quately covered by the jury instructions.” The district court ex-
plained that the instructions “make it clear that in evaluating
whether she did it knowingly, [the jurors] have to take into consid-
eration the standards of medical practice, which is really what this
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is all about, whether or not she was knowingly deviating in a crim-
inal way from the standards of practice.”
The district court instructed the jury that Dr. Germeil could
be found guilty under section 841(a)(1) if the government proved
beyond a reasonable doubt:
[1] that the defendant distributed or dispensed a con-
trolled substance as charged in the indictment;
[2] that the defendant acted knowingly and intention-
ally; and [3] that the defendant’s actions were not for
legitimate medical purposes in the usual course of her
medical practice or were beyond the bounds of med-
ical practice.
The district court stressed that Dr. Germeil was “not on trial for
medical malpractice and is not charged with acting negligently
with respect to the care of her patients. Again, she is charged with
knowingly and intentionally prescribing controlled substances to
her patients outside the usual course of professional medical prac-
tice.” The district court defined “knowingly” as something done
“not because of a mistake.”
On January 31, 2019, the jury found Dr. Germeil guilty of
eleven of the sixteen counts: the six counts involving the confiden-
tial sources and undercover officers and five counts involving other
patients. The district court allowed Dr. Germeil to remain out on
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bond provided her passport stayed with probation and she kept
wearing an ankle monitor.
In late March, Dr. Germeil cut off her ankle monitor and
fled. The next day, the magistrate judge issued a warrant for her
arrest. In response, Dr. Germeil emailed a major South Florida
newspaper: “They will get my corpse. I will not obey an unjust
and racist system!” When Dr. Germeil failed to appear at her sen-
tence hearing, the district court declared her a fugitive.
Dr. Germeil was arrested in Haiti in July. She pleaded guilty,
without a plea agreement, to failure to appear and contempt of
court. That case was consolidated with her drug case.
During the sentencing phase, probation calculated the rele-
vant drug quantity by including all opioid prescriptions Dr. Ger-
meil wrote to the patients listed in her counts of conviction—not
just the prescriptions listed in the counts. Dr. Germeil objected,
arguing that methodology “vastly overstate[d] the drug quantities
attributable to [her].” She argued that the district court should only
consider the eleven office visits of conviction for purposes of drug
quantity because the facts did not support that “every single pre-
scription written . . . had no legitimate medical purpose or was out-
side the usual course of professional practice.” Limiting the rele-
vant conduct to only “the office visits of conviction,” Dr. Germeil
stated, would yield a base offense level of twenty-four. Dr. Germeil
also objected to what she characterized as duplicative penalties for
her flight.
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In the final presentence investigation report, probation cal-
culated Dr. Germeil’s adjusted offense level at thirty-seven, her
criminal history category at I, and a guideline range of 210 to 262
months’ imprisonment. At the sentence hearing, the district court
overruled Dr. Germeil’s objections and accepted probation’s drug
quantity and guideline calculation. The district court explained
that, even if Dr. Germeil’s patients were in real pain, she did not
treat their pain in a medically legitimate way.
Dr. Germeil “ask[ed] for a downward variance to 120
months.” She emphasized her husband’s great influence over her
major decisions: for example, he encouraged her to flee the coun-
try. She admitted that it was “probably not a good idea” that she
relied on her own continuing education and “never worked for a
pain doctor.” And she claimed that “she was not just a pill-mill
doctor”; she was a real doctor and “a human being who made mis-
takes, who was extremely, heavily influenced by another individ-
ual.”
The district court imposed 210 months’ imprisonment. As
to the drug counts, the district court sentenced Dr. Germeil to 188
months in prison for each count, to run concurrently. As to the
failure to appear and contempt of court counts, the district court
sentenced her to twenty-two months in prison, to run consecu-
tively to the drug counts as required by statute, see 18 U.S.C.
§ 3146(b)(2), for a total term of imprisonment of 210 months. The
district court said that it considered the guidelines, the parties’
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arguments, the extent to which there was “a grouping issue” (i.e.,
the duplicative penalties for flight), and “the statutory factors set
forth in 18 U.S.C. [section] 3553(a).” The government asked the
district court to make a Keene 1 finding that it would impose the
same sentence regardless of any miscalculations with the guideline
range, and the district court made that finding.
Dr. Germeil appeals her drug convictions and her total term
of imprisonment.
DISCUSSION
Dr. Germeil argues that the district court erred in admitting
Dr. Hoch’s expert opinion testimony, that the district court erred
in rejecting her proposed “good faith” jury instruction and motion
for judgment of acquittal premised on good faith in light of a recent
Supreme Court decision, that there was insufficient evidence to
convict her of the drug counts, and that the district court imposed
an unreasonable sentence. We address these issues in turn.
Admissibility of Expert Testimony
Dr. Germeil contends that the district court reversibly erred
when it allowed Dr. Hoch to base opinions about all her patients
on his review of only ten random patient files and to opine, without
considering the totality of the circumstances, on the
1
United States v. Keene, 470 F.3d 1347 (11th Cir. 2006).
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appropriateness of her prescriptions. She asserts that the sample
size of ten “was not an appropriate number of patient files to sam-
ple” and “not representative of [her] entire practice,” that Dr. Hoch
“never dealt with the culture and community in which [she] prac-
ticed,” and that both these errors made his testimony misleading
and confusing.
Because Dr. Germeil did not present these arguments to the
district court, we review the admissibility of Dr. Hoch’s testimony
for plain error. See United States v. Gonzalez, 834 F.3d 1206, 1217–
18 (11th Cir. 2016) (explaining that when the defendant raises an
issue for the first time on appeal, we review for plain error). “We
may correct a plain error only when (1) an error has occurred,
(2) the error was plain, . . . (3) the error affected substantial rights[,
and] . . . (4) the error seriously affected the fairness, integrity, or
public reputation of judicial proceedings.” Id. at 1218 (alteration
adopted and quotation omitted).
Expert testimony is admissible if (1) the expert is qualified to
give competent testimony on the testified-to subjects, (2) the ex-
pert uses a sufficiently reliable methodology to reach his conclu-
sions, and (3) the testimony helps the factfinder understand the ev-
idence or determine a fact at issue. United States v. Frazier, 387
F.3d 1244, 1260 (11th Cir. 2004) (en banc) (citing Fed. R. Evid. 702).
We will not reverse the district court’s admission of expert testi-
mony unless the decision is “manifestly erroneous.” Id. at 1258.
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Dr. Germeil challenges only the reliability of Dr. Hoch’s
methodology. An expert’s methodology is sufficiently reliable if it
is valid and properly applicable to the facts at issue. Id. at 1261–62.
Factors we consider in the reliability analysis include, but are not
limited to: “(1) whether the expert’s theory can be and has been
tested; (2) whether the theory has been subjected to peer review
and publication; (3) the known or potential rate of error of the par-
ticular scientific technique; and (4) whether the technique is gener-
ally accepted in the scientific community.” Id. at 1262 (quoting
Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333,
1341 (11th Cir. 2003)).
Dr. Hoch described his methodology as “review[ing] the au-
dio / video” footage from the investigation and the files of the rel-
evant patients, “correlat[ing] [the footage] to what was docu-
mented in the patient files,” “draw[ing] . . . inferences from what
[he] saw on th[e] videos into how Dr. Germeil practiced medicine,”
“extrapolat[ing] [from the footage through the inferences] to the
ten patient files,” and assessing the “notations and documentation”
of the patient files against the Florida “regulations that physicians
are supposed to follow regarding the administration of opioid med-
ications for patients suffering with chronic pain.” Using this meth-
odology, Dr. Hoch concluded that Dr. Germeil did not meet the
standard of care embodied by those regulations “in what was re-
flected on the[] patient files” and that “independently, what [he]
saw, was [not] consistent with the Florida standard of care.” Dr.
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Hoch did not review footage relating to the ten random patients
because no such footage existed.
Dr. Hoch “grounded his opinions in” Florida’s health regu-
lations (a text accepted by the medical community), “described
standards of care drawn from” those regulations, and “analyzed Dr.
[Germeil]’s conduct”—with which he was familiar through her pa-
tient files and the footage—“under those standards.” United States
v. Azmat, 805 F.3d 1018, 1042 (11th Cir. 2015) (emphasis omitted).
This straightforward methodology “was sufficiently reliable.” Id.
at 1043.
Dr. Germeil argues that Dr. Hoch could not generalize from
such a small sample of patients to all her patients. But he did not
do so. Nor did he have to in order to support her convictions. She
was not convicted of dispensing controlled substances without
medical necessity every time she prescribed any opioid to any pa-
tient. She was convicted for specific prescriptions made to specific
patients on specific days. Dr. Hoch reviewed the recordings for the
visits by the confidential sources and undercover officers, and he
reviewed Dr. Germeil’s files for the sources, the officers, and the
ten other patients. When asked whether Dr. Germeil observed the
Florida standard of care “in those instances,” he stated that “[s]he
did not.” And when defense counsel asked if Dr. Hoch was “per-
fectly willing to accuse Dr. Germeil of prescribing medically unnec-
essary prescriptions” even though he was not privy to the patients’
visits with her, Dr. Hoch made it clear that he was “not accusing”
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but “just making an observation of what [he] saw as a physician
looking at medical documents[ and] audio / video[ footage] where
[he] did see interactions between Dr. Germeil and supposed pa-
tients, and [those records] did not represent an adequate medical
consult or visit with a patient.”
Dr. Germeil also contends that Dr. Hoch disregarded the to-
tality of the circumstances of her visits with patients, including the
culture and community of her medical practice. At heart, she ar-
gues that Dr. Hoch’s testimony was inadmissible because “he had
not met with and did not have a doctor / patient relationship with”
her patients. This argument really challenges “the accuracy of [Dr.
Hoch’s] results, not the general scientific validity of his methods,”
and is thus fodder for cross-examination. Quiet Tech., 326 F.3d at
1345. In fact, when Dr. Germeil cross-examined Dr. Hoch about
the ten patient files, she repeatedly brought up the undisputed fact
that he did not meet with her patients himself, and she pointed out
that he lacked access to the patients’ discussions with her about
their pain history and didn’t know the patients’ treatment out-
comes. The jury heard this cross-examination and apparently as-
cribed little weight to Dr. Hoch’s lack of firsthand knowledge of
Dr. Germeil’s patient visits, as was its prerogative. See United
States v. Lankford, 955 F.2d 1545, 1553 (11th Cir. 1992) (“The
weight to be given to expert testimony is within the province of
the jury.”).
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Because Dr. Hoch’s methodology was reliable, and Dr. Ger-
meil does not challenge his qualifications or helpfulness to the jury,
we discern no abuse of discretion. See Frazier, 387 F.3d at 1260.
The district court did not err at all, let alone plainly err, when it
allowed Dr. Hoch to testify as an expert. See Gonzalez, 834 F.3d
at 1218 (“We may correct a plain error only when . . . an error has
occurred . . . .”).
Good Faith Defense Jury Instruction and Motion for Acquittal
Dr. Germeil argues that, in light of the Supreme Court’s re-
cent decision in Ruan v. United States, 142 S. Ct. 2370 (2022), the
district court erred in its treatment of the good faith defense.
In Ruan, two doctors went to trial for dispensing controlled
substances in violation of section 841(a)(1). 966 F.3d 1101, 1120
(11th Cir. 2020). They proposed a good faith defense jury instruc-
tion, requiring the government to prove they subjectively knew
their prescriptions were unauthorized—that is, not issued for a le-
gitimate medical purpose in the usual course of professional prac-
tice. Id. at 1165–67. The district court rejected the instruction, and
the defendants were convicted. Id. at 1119–20, 1166.
We affirmed, concluding that a doctor’s subjective (but ob-
jectively incorrect) belief that a prescription was authorized wasn’t
a complete defense under section 841(a)(1). Id. at 1166–67. The
Supreme Court disagreed and vacated our decision. 142 S. Ct.
2370. The Supreme Court held that the government must prove
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beyond a reasonable doubt that a doctor knew or intended that a
prescription was unauthorized. Id.We ordered Dr. Germeil to brief the effect of this Supreme
Court decision on her appeal, and she raised two issues. She con-
tends that the district court erred by (1) rejecting her proposed
good faith jury instruction, and (2) denying her motion for judg-
ment of acquittal based on the good faith defense. Dr. Germeil
doesn’t appeal or otherwise argue that the jury instructions the dis-
trict court actually gave were incorrect under the Supreme Court’s
new decision—she only argues the district court erred in refusing
to give her proposed instruction.
In contrast, after Ruan was remanded, the defendants
briefed the issue of “whether the mens rea jury instruction used . . .
was error.” 56 F.4th 1291, 1295 (11th Cir. 2023). We held it was
and vacated the defendants’ section 841(a)(1) convictions because
the instructions hadn’t conveyed that “the defendants must have
‘knowingly or intentionally’ prescribed outside the usual course of
their professional practices.” Id. at *3.
But, unlike the Ruan defendants, Dr. Germeil doesn’t argue
the district court’s jury instructions misstated the law. That argu-
ment would’ve failed had she made it. The district court expressly
understood that this case was “all about” whether Dr. Germeil
“knowingly deviat[ed] in a criminal way from the standards of prac-
tice,” and it fashioned the instructions to reflect that subjective
standard.
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When, as here, a defendant only challenges the rejection of
a proposed jury instruction, we apply the “deferential” abuse of dis-
cretion standard. United States v. Lebowitz, 676 F.3d 1000, 1014
(11th Cir. 2012) (quotation omitted). “A trial court enjoys broad
discretion to formulate jury instructions provided those instruc-
tions are correct statements of law.” Id.A district court abuses its discretion by rejecting a proposed
instruction only when the instruction “(1) was correct, (2) was not
substantially covered by the charge actually given, and (3) dealt
with some point in the trial so important that failure to give the
requested instruction seriously impaired the defendant’s ability to
conduct his defense.” United States v. Jockisch, 857 F.3d 1122, 1126
(11th Cir. 2017) (quotation omitted). A district court may properly
refuse to give an instruction that fails any of these prongs. See id.Here, the district court found that the second prong wasn’t
met because the proposed good faith language was “adequately
covered” by other instructions. District courts may reject proposed
instructions when “the gist” of the proposal is already conveyed by
the district court’s charge. United States v. Fleury, 20 F.4th 1353,
1372 (11th Cir. 2021). In assessing whether the gist of a rejected
instruction was conveyed, “we examine the jury charge as a whole”
and “afford district courts wide discretion to decide on the style and
wording of an instruction so long as it accurately reflects the law.”
Id. at 1373 (cleaned up). District courts are “not required to adopt
the precise wording of [the defendant’s] proposed instruction.” Id.USCA11 Case: 19-14942 Document: 77-1 Date Filed: 02/14/2023 Page: 23 of 39
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Dr. Germeil’s proposed good faith instruction said:
Good faith is a complete defense to the charges
in Counts 1 through 16 of the indictment since good
faith on the part of the Defendant is inconsistent with
the essential element of knowledge or intent to issue
a prescription not for a legitimate medical purpose.
Good faith means good intentions and the honest ex-
ercise of good professional judgment as to a patient’s
medical needs. It is an honest effort on the physician’s
part to prescribe controlled substances in compliance
with an accepted standard of medical practice. . . .
....
I caution you that the Defendant is not on trial
in this case for medical malpractice or negligence, nei-
ther of which constitutes a crime. . . . Instead, in or-
der to find the Defendant guilty, you must find that
at the time she issued a prescription, she did so with
knowledge that it was not being issued for a legiti-
mate medical purpose in the usual course of her pro-
fessional practice.
Although the district court didn’t relay “the precise word-
ing” of this instruction, it effectively conveyed the gist. Id. The
district court told the jury that it needed to find three elements to
find Dr. Germeil guilty of a section 841(a)(1) offense.
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First, that the defendant distributed or dispensed a
controlled substance as charged in the indictment;
second, that the defendant acted knowingly and in-
tentionally; and third, that the defendant’s actions
were not for legitimate medical purposes in the usual
course of her medical practice or were beyond the
bounds of medical practice.
Unlike the Ruan jury instructions, there’s no language in these ele-
ments that “[g]ramatically . . . links” the second element
(knowledge and intent) to the first element (distribution or dispen-
sation) but not the third element (authorization). 56 F.4th at 1297
(“Grammatically, the ‘did so’ phrase links the mens rea element to
the preceding element describing the actus reus of dispensing the
controlled substance, but not to the ‘except as authorized’ excep-
tion.”); see also United States v. Cochran, 683 F.3d 1314, 1320 (11th
Cir. 2012) (“[A]lthough the wording of the final sentence of the . . .
instruction would have been more clear if it included language
about knowledge or intent, that flaw is mitigated by the totality of
the instructions.”).
After reciting these elements, the district court stressed that
Dr. Germeil was “not on trial for medical malpractice and is not
charged with acting negligently with respect to the care of her pa-
tients. Again, she is charged with knowingly and intentionally pre-
scribing controlled substances to her patients outside the usual
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course of professional medical practice.” 2 The district court de-
fined “knowingly” as an act done “not because of a mistake.” Even
assuming parts of the proposed good faith instruction better con-
veyed that Dr. Germeil must’ve known or intended that the pre-
scriptions were unauthorized, that alone doesn’t establish that the
district court abused its “wide discretion to decide on the style and
wording of an instruction.” See Fleury, 20 F.4th at 1373 (cleaned
up).
The district court didn’t abuse its discretion by rejecting Dr.
Germeil’s proposed good faith instruction because it instructed
that a conviction required Dr. Germeil to act “knowingly,” and
we’ve held, repeatedly, that the good faith defense is “substantially
included in the instruction that the criminal act must be done
‘knowingly.’” United States v. Jordan, 582 F.3d 1239, 1248 (11th
Cir. 2009); see also United States v. McNair, 605 F.3d 1152, 1201
n.65 (11th Cir. 2010) (explaining that a “knowingly” finding “neces-
sarily excludes a finding of good faith”). Because of the district
court’s “knowingly” instruction, “the jury plainly had to rule out
2
The Ruan district court refused to give an instruction like this one “distin-
guishing the civil standard of care from the criminal standard.” 966 F.3d at
1169. The Supreme Court’s opinion emphasized that this distinction is crucial
because negligence is judged by “an objective standard” but section 841(a)(1)
as a criminal statute requires a “subjective mens rea.” 56 F.4th at 1296 (“The
[Supreme] Court held that an objective standard would inappropriately im-
port a civil negligence standard into a criminal prosecution. Instead, what
matters is the defendant’s subjective mens rea”).
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the possibility that [Dr. Germeil] actually harbored a good-faith be-
lief in the legitimacy of” her prescriptions before it could convict.
See United States v. Martinelli, 454 F.3d 1300, 1316 (11th Cir. 2006).
“In other words, based on the instructions the district judge gave,
if the jury concluded that [Dr. Germeil] had a good-faith belief in
the legitimacy of the [prescriptions], it could not have found” she
acted knowingly. See id.Examining “the jury charge as a whole,” we conclude that
“the substance of the proposed instruction was adequately cov-
ered.” Fleury, 20 F.4th at 1373 (cleaned up). This was why the
district court rejected the proposed instruction, and under our “def-
erential” standard of review we’re unconvinced that was an abuse
of the district court’s “broad discretion to formulate jury instruc-
tions.” Lebowitz, 676 F.3d at 1014 (quotation omitted).
The district court likewise didn’t err by denying Dr. Ger-
meil’s motion for judgment of acquittal. “We review a denial of a
motion for judgment of acquittal de novo.” United States v. Mau-
rya, 25 F.4th 829, 841 (11th Cir. 2022). A district court’s denial of a
motion for judgment of acquittal must be upheld if “a reasonable
trier of fact could conclude that the evidence establishes the de-
fendant’s guilt beyond a reasonable doubt.” United States v. Rodri-
guez, 218 F.3d 1243, 1244 (11th Cir. 2000).
Dr. Germeil argues that had the district court applied the
law as set forth in Ruan, her motion would’ve been granted. But
the record suggests that the district court did apply the law
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consistent with Ruan. Again, the district court told the parties that
the question at the heart of the case was “all about” whether Dr.
Germeil “knowingly deviat[ed] in a criminal way from the stand-
ards of practice.” And in denying the motion for judgment of ac-
quittal, the district court ruled that a reasonable jury could find that
she did. That ruling accords with Ruan, which explained that the
government “can prove knowledge of a lack of authorization
through circumstantial evidence” as well as evidence showing un-
reasonable beliefs or misunderstandings. 142 S. Ct. at 2382.
The government introduced extensive evidence from which
a reasonable jury could find that Dr. Germeil knew and intended
to write prescriptions that weren’t for legitimate medical purposes
in the usual course of professional practice. Take Ms. Hernandez.
She left her pain level blank on her form and had neither pain nor
injury. Dr. Germeil knew Ms. Hernandez sold pills because Ms.
Hernandez told her as much, and Ms. Hernandez’s patient file
noted she shared Oxycodone pills with others. Yet, each time Ms.
Hernandez met with Dr. Germeil, eight times in all, she left with
an opiate prescription. This type of evidence provided ample rea-
son to deny the motion for judgment of acquittal.
Sufficiency of the Evidence
Dr. Germeil contends that the evidence presented at trial
was insufficient to establish that she dispensed controlled sub-
stances without medical necessity. Aside from arguing that she is
innocent of the drug charges, Dr. Germeil contends that the
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government “failed to properly establish an applicable threshold
standard of medical care by which the jury could measure [her]
conduct,” and that, in fact, because “the difference between civil
malpractice and criminal conduct is a matter of degree,” “a clearly
articulated criminal standard . . . [wa]s not possible” in this case.
She says that although the government “presented expert medical
testimony regarding acceptable medical standards and whether
[her] conduct was outside [their] bounds,” the jury lacked evidence
of a generally accepted standard of medical practice to guide their
deliberations over whether she violated that standard.
“We review the sufficiency of the evidence de novo when,
as here, the defendant has preserved h[er] claim by moving for a
judgment of acquittal.” Azmat, 805 F.3d at 1035 (emphasis omit-
ted). We view the evidence and all reasonable inferences and cred-
ibility choices in the light most favorable to the government. Id.We must affirm the conviction “unless there is no reasonable con-
struction of the evidence from which the jury could have found the
defendant guilty beyond a reasonable doubt.” Id. (quotation omit-
ted).
It is a crime “for any person knowingly or intentionally . . .
to . . . dispense . . . a controlled substance,” 21 U.S.C. § 841(a)(1),
such as Oxycodone, Percocet, and the hydromorphone in Dilaudid
pills, 21 C.F.R. §§ 1308.12(b)(1)(vii), (xiv). But, as explained, “an
individual [medical] practitioner acting in the usual course of h[er]
professional practice” may prescribe a controlled substance “for a
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legitimate medical purpose.” Id. § 1306.04(a). “The responsibility
for the proper prescribing and dispensing of controlled substances
is upon the prescribing practitioner . . . .” Id. A person who issues
a prescription outside “the usual course of professional treatment
. . . shall be subject to the penalties provided for violations of the
provisions of law relating to controlled substances.” Id. A party
may establish the applicable standard of care for this inquiry
through the opinion testimony of a medical expert. See, e.g.,
United States v. Joseph, 709 F.3d 1082, 1103–04 (11th Cir. 2013).
The jury had sufficient evidence of the standard of medical
care from Dr. Hoch’s testimony and from the Florida rule setting
standards for prescribing opioids, which the government submit-
ted into evidence.
Dr. Hoch concluded that Dr. Germeil did not meet the
standard of care in any of the charged patient interactions and that
she prescribed the charged controlled substances without a legiti-
mate medical purpose. The jury was free to credit as much of Dr.
Hoch’s testimony as it considered appropriate. See United States
v. Westry, 524 F.3d 1198, 1214 (11th Cir. 2008) (“[I]t is not for us to
re-weigh the factfinder’s credibility choices.”). Here, this testi-
mony was sufficient by itself to support Dr. Germeil’s drug convic-
tions.
The jury also had enough information to find for itself that
Dr. Germeil did not meet the standard of care. The rule submitted
into evidence gave seven sets of standards for using controlled
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substances to treat pain, including patient evaluation and medical
record standards. See Fla. Admin. Code Ann. r. 64B8-9.013(3)
(2010). The patient evaluation standards required the prescribing
medical practitioner to conduct “[a] complete medical history and
physical examination” and to document the results, along with
“the nature and intensity of the pain, current and past treatments
for pain, underlying or coexisting diseases or conditions, the effect
of the pain on physical and psychological function, . . . history of
substance abuse,” and “the presence of one or more recognized
medical indications for the use of a controlled substance,” in the
patient’s medical record. Id. r. 64B8-9.013(3)(a). Likewise, the
medical records standards “required” the doctor “to keep accurate
and complete records” of, at least, “[t]he complete medical history
and a physical examination, including history of drug abuse or de-
pendence, as appropriate,” “[d]iagnostic, therapeutic, and labora-
tory results,” “[e]valuations and consultations,” “[t]reatment objec-
tives,” “[d]iscussion of risks and benefits,” “[t]reatments,” “[m]edi-
cations (including date, type, dosage, and quantity prescribed),”
“[i]nstructions and agreements,” “[d]rug testing results,” and
“[p]eriodic reviews” and to keep the records “current,” “accessi-
ble,” and “readily available for review.” Id. r. 64B8-9.013(3)(f). The
jury could find, based on the testimony and Dr. Germeil’s own
files, that she did not conduct complete physical examinations or
keep accurate and complete patient records.
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Further, a jury may reasonably conclude that a defendant
distributed prescriptions without a legitimate medical purpose and
outside the usual course of professional practice when four indica-
tors are present: (1) an unusually high number of prescriptions cor-
responding to an unusually high number of opioids, (2) an absence
of physical examinations, (3) prescriptions written to patients who
the prescribing practitioner knows are giving the drugs to other
people, and (4) the lack of a relationship between the drugs pre-
scribed and the treatment of the medical condition responsible for
the pain symptoms. See Joseph, 709 F.3d at 1104. All four indica-
tors were present here.
First, the jury had Ms. Carter and Dr. Hoch’s testimony
about the large numbers of prescriptions and pills—as well as the
actual prescriptions that Dr. Germeil wrote to the undercover of-
ficers, confidential sources, and ten other patients, as described by
Agent Grafenstein. See United States v. Ignasiak, 667 F.3d 1217,
1227–29 (11th Cir. 2012) (finding “evidence that [the defendant]
had written more than [forty-three thousand] prescriptions for con-
trolled substances over a five year period” sufficient, when com-
bined with expert testimony, to support that he “prescribed unnec-
essary or excessive quantities of controlled substances without a le-
gitimate medical purpose and outside the usual course of profes-
sional practice” (internal quotation marks omitted)).
Second, according to Agent Grafenstein, Dr. Germeil admit-
ted to skipping physical examinations at times, and both
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confidential sources testified to receiving prescriptions from her
without first having examinations. Also, the evidence showed that
when Dr. Germeil did conduct examinations, they were too cur-
sory to comply with the standard of medical care. Dr. Germeil told
Agent Grafenstein that she limited her examination of a patient to
touching the area in which the patient claimed pain. The under-
cover officers and Mr. Morales Gomez corroborated that, give or
take a quick listen to their breathing with a stethoscope, their ex-
aminations entailed only Dr. Germeil touching the complained-of
area. The jury could find that Dr. Germeil’s examinations did not
comply with the Florida regulation governing pain prescription
standards. See R. 64B8-9.013(3)(a). Dr. Hoch also testified to this
effect.
Third, Officer Guell and the confidential sources provided
evidence that Dr. Germeil prescribed opioids to patients even after
she knew—because they told her—that they gave the opioids to
other people. Officer Guell told Dr. Germeil that he shared Oxyco-
done pills with his sister, and then she prescribed him more Oxyco-
done. Mr. Morales Gomez told her he sold his prescription medi-
cations to help family in Cuba, and then she wrote him another
prescription. And, as discussed, Dr. Germeil knew that Ms. Her-
nandez sold pills because Ms. Hernandez told her and because Dr.
Germeil’s patient file for Ms. Hernandez noted the sharing of the
Oxycodone pills.
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Fourth, the government introduced evidence that Dr. Ger-
meil was not interested in treating medical conditions at all, just in
prescribing pain pills. Dr. Germeil told Agent Grafenstein that her
focus was on writing opioid prescriptions rather than recommend-
ing other pain therapies. And, contrary to what her patient files
said, the undercover officers and confidential sources stated that,
during their brief visits with her, Dr. Germeil did not discuss other
treatments such as diet and exercise, did not prioritize follow-up
appointments or at-home safety, and did not advise them to seek
emergency services or hospitalization if their pain continued. Evi-
dence also supported that the officers and sources had no medical
conditions requiring pain medication when Dr. Germeil wrote
them prescriptions. Officer Guell’s magnetic resonance imaging
results showed no need for treatment, Agent Maxey identified his
pain level at a three and told Dr. Germeil that his back did not hurt
when she pushed on it, Mr. Morales Gomez cited “discomfort” ra-
ther than pain as his reason for seeing Dr. Germeil and left a spot
on a form blank because he “had no pain,” and Ms. Hernandez left
her pain level blank on her form and had no pain and no injury
when Dr. Germeil prescribed her pain pills.
Given the overwhelming evidence presented against Dr.
Germeil at trial, we have no difficulty finding that sufficient evi-
dence supported her drug convictions. The jury could reasonably
construe the evidence to find Dr. Germeil guilty beyond a reason-
able doubt. See Azmat, 805 F.3d at 1035.
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Reasonableness of the Sentence
Dr. Germeil maintains that the district court imposed an un-
reasonable sentence using an incorrect drug quantity based on ir-
relevant conduct involving uncharged prescriptions about which
the jury made no findings. She “was sentenced based upon unreli-
able and over inclusive information that the [g]overnment . . . con-
ceded . . . may be inaccurate,” she claims, and “was penalized twice
by her failure to appear at sentencing” because the district court
believed her flight “alone warranted denial” of her request for a
lower sentence.
The district court made a Keene finding, affirming that it
would’ve imposed the same sentence even if the guidelines had
been miscalculated. “Under our precedent, we need not review a
sentencing issue when (1) the district court states it would have im-
posed the same sentence, even absent an alleged error, and (2) the
sentence is substantively reasonable.” United States v. Grushko, 50
F.4th 1, 18 (11th Cir. 2022) (cleaned up) (citing Keene, 470 F.3d at
1349–50). When “a district court states that the sentence it has im-
posed would not have changed even with a different guideline cal-
culation[,] we assume there was an error, reduce the guideline
range according to the way the defendant argued, and analyze
whether the sentence would be substantively reasonable under
that guideline range.” Id. (citing Keene, 470 F.3d at 1349–50). “The
defendant has the burden of proving that his sentence is
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unreasonable in light of the record and [18 U.S.C. section] 3553(a).”
Id. (cleaned up).
Dr. Germeil argued that the district court should only con-
sider the eleven office visits of conviction for purposes of drug
quantity, yielding a base offense level of twenty-four. Adding the
enhancements (which Dr. Germeil doesn’t appeal) equals a total
offense level of thirty-one, and after factoring in her criminal his-
tory category of I, we arrive at a guideline range of 108 to 135
months’ imprisonment. Thus, to determine whether Dr. Ger-
meil’s sentence was unreasonable under Keene, we assume her
guideline range was 108 to 135 months’ imprisonment and ask
whether her total sentence of 210 months was substantively rea-
sonable under section 3553(a). Id. at 19.
We decide “whether [a] sentence is substantively reasonable
under the totality of the circumstances.” United States v. Tome,
611 F.3d 1371, 1378 (11th Cir. 2010). A defendant’s sentence must
“adequately (1) ‘reflect the seriousness of the offense,’ (2) ‘promote
respect for the law,’ (3) ‘provide just punishment,’ (4) ‘afford ade-
quate deterrence,’ (5) ‘protect the public from further crimes of the
defendant,’ and (6) provide the defendant with any needed training
and treatment in the most effective manner.” United States v.
Rosales-Bruno, 789 F.3d 1249, 1253–54 (11th Cir. 2015) (quoting 18
U.S.C. § 3553(a)(2)).
Determining a sentence is “a holistic endeavor.” Id. at 1254.
“To arrive at an appropriate sentence, the district court must
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consider all of the applicable [section] 3553(a) factors”: “the nature
and circumstances of the offense,” “the defendant’s history and
characteristics,” “the kinds of sentences available,” “the applicable
sentencing guidelines range,” “pertinent policy statements of the
Sentencing Commission,” “the need to provide restitution to any
victims,” and “the need to avoid unwarranted sentencing dispari-
ties.” Id. (citing 18 U.S.C. § 3553(a)). But “[t]he decision about how
much weight to assign a particular sentencing factor is committed
to the sound discretion of the district court.” Id. (quotation omit-
ted). A district court “abuses its considerable discretion and im-
poses a substantively unreasonable sentence only when it (1) fails
to afford consideration to relevant factors that were due significant
weight, (2) gives significant weight to an improper or irrelevant fac-
tor, or (3) commits a clear error of judgment in considering the
proper factors.” Id. at 1256 (quotation omitted). “Because that
rarely happens, it is only the rare sentence that will be substantively
unreasonable.” Id. (quotation omitted).
“Additionally, although the district court has discretion to
impose a sentence outside of the guideline range, a major variance
requires a more significant justification than a minor one.”
Grushko, 50 F.4th at 20. But “we do not presume that a sentence
outside of the guideline range is unreasonable and give deference
to the district court’s decision that the [section] 3553(a) factors sup-
port its chosen sentence. Further, a sentence imposed below the
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statutory maximum penalty is an indicator of a reasonable sen-
tence.” Id.
Looking at the record as a whole, Dr. Germeil hasn’t shown
that her total sentence is substantively unreasonable. Indeed, the
district court had significant justification for the sentence it im-
posed. Dr. Germeil was convicted of prescribing opioids without
medical necessity eleven times, of failing to appear at her sentence
hearing, and of being in contempt of court. These offenses are se-
rious ones. See 18 U.S.C. § 3553(a)(1)–(2) (nature and circum-
stances of the offense, the need to reflect the seriousness of the of-
fense). The drug convictions show that Dr. Germeil posed a recur-
ring danger to her community, and the other counts show her lack
of respect for the justice system. Although she did not have a crim-
inal history, she has a history of refusing to accept responsibility for
her actions, as seen in her attempts to shift the blame to her hus-
band and in her fugitive flight from the country between convic-
tion and sentencing. See id. (need to promote respect for the law,
characteristics of the defendant, provide just punishment, deter
criminal conduct, and protect the public). And contrary to Dr. Ger-
meil’s contention, the record shows that the district weighed her
flight as just one factor, among many others, in deciding a 210-
month sentence was justified.
Regarding the sentences available, the statutory maximum
term of imprisonment for each of the eleven drug convictions was
240 months, see 21 U.S.C. § 841(b)(1)(C); the maximum for the
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failure to appear was 120 months, see 18 U.S.C. § 3146(b)(1)(A)(i),
to run consecutively to the drug sentence, see id. § 3146(b)(2); and
punishment for contempt of court was left to the district court’s
discretion, see id. § 401(3); United States v. Cohn, 586 F.3d 844, 849
(11th Cir. 2009) (describing contempt of court as a unique offense
for which a “wide range of sentences . . . may be imposed”). Dr.
Germeil’s 188-month sentence for her conviction under §
841(b)(1)(C) was below the statutory maximum of 240 months, and
her 22-month sentence under § 3146(b)(1)(A)(i) was below the stat-
utory maximum of 120 months. Grushko, 50 F.4th at 20 (“[A] sen-
tence imposed below the statutory maximum penalty is an indica-
tor of a reasonable sentence.”).
Under the totality of these circumstances, Dr. Germeil’s sen-
tence is not the “rare” substantively unreasonable one. See
Rosales-Bruno, 789 F.3d at 1256. Thus, even if we assume that the
district court erred in calculating drug quantity, that error is harm-
less under Keene.
CONCLUSION
In sum, we discern no abuse of discretion in the district
court’s admission of Dr. Hoch’s opinion testimony nor its refusal
to give a “good faith” jury instruction. We find that the district
court properly denied the motion for judgment of acquittal and
that the jury had more than enough evidence to support Dr. Ger-
meil’s drug convictions. And we conclude that the district court
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19-14942 Opinion of the Court 39
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properly exercised its discretion to impose a reasonable sentence
under the totality of the circumstances.
AFFIRMED.