United States v. Nicole R. Bramwell

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 18-11602
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY B. HOWARD,
RAYMOND L. STONE,
Defendants-Appellants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00143-PGB-DCI-1
____________________
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2 Opinion of the Court 18-11602
____________________
No. 18-12395
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee- Cross Appellant,
versus
NICOLE R. BRAMWELL,
Defendant-Appellant-Cross Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 6:17-cr-00143-PGB-DCI-2
____________________
Before BRANCH, LUCK, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
Like bears to honey, white collar criminals are drawn to bil-
lion-dollar government programs. An example is Tricare, which
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provides health care insurance benefits for active and retired
members of the military and their families. At last count, the Tri-
care program had around nine million beneficiaries and paid out
to health care providers about fifty billion dollars a year. 1 Most of
those providers have been honest.
Some have not been. See, e.g., United States v. Chalker,
966 F.3d 1177, 1182 (11th Cir. 2020) (pharmacist convicted of con-
spiring to submit “false and fraudulent claims” to Tricare); United
States v. Grow, 977 F.3d 1310, 1313 (11th Cir. 2020) (marketer
convicted of “conspiring to commit healthcare and wire fraud,
committing healthcare fraud, conspiring to receive and pay kick-
backs, receiving kickbacks, and money laundering,” all of which
were related to Tricare payments for compounded prescriptions);
United States v. Ruan, 966 F.3d 1101, 1120 (11th Cir. 2020) (medi-
cal doctors convicted of numerous crimes, including conspiracies
to commit health care fraud and mail or wire fraud and to receive
kickbacks related to the Tricare program and other medical bene-
fit programs), cert. granted, 142 S. Ct. 457 (2021); United States v.
Shah, 981 F.3d 920, 922 (11th Cir. 2020) (medical doctor convicted
of participating in a “kickback conspiracy that involved writing
prescriptions for compounded drugs” paid for by the Tricare pro-
gram).
1Def. Health Agency, Evaluation of the TRICARE Program: Fiscal Year 2021
Report to Congress 31 (2021).
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In addition to the defendants in those cited cases, others
who have violated federal law to enrich themselves off the Tricare
program include the three appellants in this case. Nicole Bram-
well 2 was a physician, Larry Howard was a pharmacist, and Ray-
mond Stone is a veteran who retired from the Navy before the
events in this case. The three were convicted of crimes involving
the millions of dollars that Tricare paid Howard for filling com-
pounded cream prescriptions for patients. Bramwell wrote the
vast majority of those prescriptions, and Stone helped in recruit-
ing some of the patients for whom Howard filled prescriptions.
Federal law forbids paying or receiving kickbacks, or conspiring to
do so, in connection with federal health care programs. The three
of them were convicted for paying or receiving kickbacks and
conspiring to do it. Howard was also convicted of laundering
some of the proceeds.
2 Bramwell was a physician at the time of the events in this case, but after she
was convicted and sentenced, she surrendered her medical license. That fact
is not included in the record, but we can take judicial notice of it as a publicly
available state agency record. See Fla. Dep’t of Health, https://mqa-
internet.doh.state.fl.us/MQASearchServices/HealthcareProviders/LicenseV
erification?LicInd=63666&Procde=1501&org=%20 (last visited Jan. 6, 2022);
K.T. v. Royal Caribbean Cruises, Ltd., 931 F.3d 1041, 1047–48 (11th Cir.
2019) (Carnes, C.J., concurring) (explaining that we may take judicial notice
of publicly available agency records); Fed. R. Evid. 201(b), (d); Terrebonne v.
Blackburn, 646 F.2d 997, 1000 n.4 (5th Cir. 1981) (en banc) (“Absent some
reason for mistrust, courts have not hesitated to take judicial notice of
agency records and reports.”).
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I. PROCEDURAL HISTORY
Bramwell, Howard, and Stone were tried on a seven-count
indictment. Count One charged all three of them with a multi-
object conspiracy to defraud the United States and to offer, pay,
solicit, and receive health care kickbacks to submit claims to Tri-
care for prescription compounded drugs, in violation of 18 U.S.C.
§ 371. Counts Two and Three charged Bramwell and Stone with
receiving health care kickbacks, in violation of 42 U.S.C. § 1320a-
7b(b)(1)(A). Counts Four and Five charged Howard with paying
those kickbacks to the two of them, in violation of 42 U.S.C. §
1320a-7b(b)(2)(A). Counts Six and Seven also charged Howard
with money laundering related to the funds he derived from the
kickback scheme, in violation of 18 U.S.C. § 1957.
After a five-day joint trial, the jury deliberated just over
four hours before finding each defendant guilty of all the charges
against that defendant. The district court held separate sentence
hearings for each of them. The court sentenced Howard to 160
months in prison; Stone to 24 months in prison; and Bramwell to
no imprisonment at all, only 36 months of probation, with one
year of it to be served in home detention. (The home detention
condition allowed Bramwell to “leave, for example, for work-
related needs or medical treatment, that sort of thing.”)
Every party appeals. All three defendants challenge their
convictions based on the sufficiency of the evidence. Howard al-
so contends that the government constructively amended his in-
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dictment.3 And the government has cross-appealed, contending
that Bramwell’s sentence is unreasonably lenient.
II. THE SUFFICIENCY OF THE EVIDENCE
We review de novo the sufficiency of the evidence to sup-
port the jury verdict finding each defendant guilty of each crime
with which that defendant was charged. In conducting our re-
view, we view the evidence in the light most favorable to the ver-
3 Bramwell and Stone also contend that their convictions must be vacated
because the underlying health care kickback statute is unconstitutional. The
argument deserves little attention, much less discussion. Cf. United States v.
Iriele, 977 F.3d 1155, 1165 n.6 (11th Cir. 2020). They base the argument on a
federal district court decision from Texas. See Texas v. United States, 340 F.
Supp. 3d 579 (N.D. Tex. 2018). That decision does not bind us, its reasoning
does not apply to this case, and it has been vacated. See California v. Texas,
141 S. Ct. 2104, 2120 (2021).
Additionally, Stone appealed his sentence, contending that the dis-
trict court erred in refusing to apply a two-level minor role reduction when
calculating his sentencing guidelines range. During the course of this appeal,
however, Stone finished serving the parts of his sentence that could be af-
fected by a minor role reduction, including both his term of imprisonment
and his term of supervised release. Stone concedes that his completion of
those parts of his sentence moots his appeal of it, the government agrees, and
so do we. See, e.g., North Carolina v. Rice, 404 U.S. 244, 248 (1971); United
States v. Stevens, 997 F.3d 1307, 1310 n.1 (11th Cir. 2021) (“A challenge to an
imposed term of imprisonment is moot once that term has expired, but
where a defendant is still serving other aspects of his sentence, e.g., paying a
fine or serving a term of supervised release, any appeal related to that aspect
of his sentence is not moot.”) (citations omitted); United States v. Farmer,
923 F.2d 1557, 1568 (11th Cir. 1991).
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dict and draw all reasonable inferences and make all credibility
choices in favor of the verdict. United States v. Iriele, 977 F.3d
1155, 1168 (11th Cir. 2020). We must affirm if “after viewing the
evidence in the light most favorable to the prosecution, any ra-
tional [finder] of fact could have found the essential elements of
the crime beyond a reasonable doubt.” United States v. Hernan-
dez, 433 F.3d 1328, 1335 (11th Cir. 2005) (quotation marks omit-
ted). “A guilty verdict cannot be overturned if any reasonable
construction of the evidence would have allowed the jury to find
the defendant guilty beyond a reasonable doubt.” Iriele, 977 F.3d
at 1168 (quotation marks omitted). And because a jury can freely
choose among reasonable constructions of the evidence, “it is not
necessary that the evidence exclude every reasonable hypothesis
of innocence or be wholly inconsistent with every conclusion ex-
cept that of guilt.” Id. (quotation marks omitted).
In considering the sufficiency of the evidence supporting
their convictions, we keep in mind what the substantive convic-
tions were not based on and did not involve. This is not a tradi-
tional health care fraud case in which the prescriptions were al-
leged to have been medically unnecessary, although there is rea-
son to believe many may have been. And it is not a medical or
pharmaceutical malpractice case. The issues are not whether the
prescriptions involved were legitimate or medically necessary or
good or bad for the patient.
None of that matters to the sufficiency of the evidence be-
cause the substantive kickback convictions were based entirely on
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whether there were kickbacks: In return for Bramwell writing
prescriptions that Howard’s pharmacy filled, did Howard pay and
did Bramwell accept payments? And in return for Stone recruit-
ing potential patients for whom prescriptions could be written
that Howard’s pharmacy would fill, did Howard pay and did
Stone accept payments? The conspiracy convictions can be sus-
tained based solely on evidence sufficient to support the kick-
backs conspiracy without regard to any evidence of fraud. See
United States v. Medina, 485 F.3d 1291, 1301–02 (11th Cir. 2007)
(evidence sufficient to prove any one of the charged objectives of
a multi-object § 371 conspiracy is sufficient to sustain the convic-
tion). And Howard’s challenge to his two money laundering con-
victions is based solely on his challenge to the sufficiency of the
evidence to convict him of paying kickbacks.
A. Tricare, Compounded Creams, and the Investigation
We begin with the evidence providing background infor-
mation about Tricare and the type of medications that led to the
kickback charges in this case.
Among the benefits that Tricare provides its members and
beneficiaries is a program that pays participating retail pharmacies
for prescriptions they fill for Tricare members. The program’s
coverage includes a number of compounded drugs. Unlike a tra-
ditional prescription that is filled from a pre-made formulation al-
ready on the shelves, a prescription for a compounded drug re-
quires a pharmacist to mix multiple ingredients together to meet
a specific patient’s special needs. The particular kinds of com-
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pounded drugs involved in this case are creams prescribed as
treatments for pain and scarring.
Until May 2015, Tricare reimbursed pharmacies in exorbi-
tant amounts for compounded creams, paying them thousands of
dollars for filling or refilling each prescription. The large pay-
ments generated a flood of prescriptions, which resulted in huge
payouts to some pharmacies. The volume of claims and the glory
days of payouts for participating pharmacies peaked in April 2015.
That was when, to stem the flood of claims and the tidal wave of
payouts, Tricare announced policy changes that would take effect
the next month. The policy changes were designed to lower Tri-
care’s payments for compounded cream prescriptions by substan-
tially reducing the amount it would pay for some ingredients or
categories of ingredients used in the creams. The new policy
achieved its goal; it drastically reduced the total amount of money
Tricare paid each month to pharmacies for filling compounded
cream prescriptions. Tricare’s monthly payouts plummeted 98
percent, from $480 million to $10 million.
At about the same time, the government started looking
into why Tricare had experienced such a dramatic increase in
claims for compounded creams and the payouts for them before
the policy change. A team within the Defense Health Agency
searched Tricare databases for pharmacies whose claims had devi-
ated significantly from those of the typical pharmacy. The yellow
flags that the team looked for were: the total dollar amount in
compounded cream prescriptions; a sudden growth in claims
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within a few months; filling prescriptions from only one or a few
doctors instead of many; filling exclusively, or nearly exclusively,
compounded drug prescriptions; and filling a large proportion of
the prescriptions for patients who were not geographically close
to the pharmacy. The team’s search resulted in a list of pharma-
cies to be investigated. With every one of those yellow flags fly-
ing over Larry Howard’s pharmacy, it easily made the list, and the
investigation led to the indictment in this case.
B. The Elements of the Crimes
Howard was convicted of two counts of paying health care
kickbacks in violation of 42 U.S.C. § 1320a-7b(b)(2)(A). One of
those counts was for paying kickbacks to Bramwell, and the other
one was for paying kickbacks to Stone. For those two of How-
ard’s convictions to stand, the government must have presented
evidence from which a jury could reasonably find beyond a rea-
sonable doubt that Howard: “(1) knowingly and willfully, (2) paid
money, directly or indirectly, to [Bramwell and Stone], (3) to in-
duce [them] to refer individuals to [Howard’s pharmacy] for the
furnishing of [compounded drugs], (4) paid for by [Tricare].”
United States v. Vernon, 723 F.3d 1234, 1252 (11th Cir. 2013).
Bramwell and Stone were each convicted of one count of
receiving those kickbacks from Howard, in violation of 42 U.S.C.
§ 1320a-7b(b)(1)(A). For the conviction of each of them to stand,
the government must have presented evidence from which a jury
could reasonably find beyond a reasonable doubt that the defend-
ant: “(1) knowingly and willfully (2) solicited or received money
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(3) for referring individuals to [Howard’s pharmacy] (4) for the
furnishing of services to be paid by [Tricare].” United States v.
Nerey, 877 F.3d 956, 968 (11th Cir. 2017).
All three defendants were convicted of conspiring to pay or
receive health care kickbacks, in violation of 18 U.S.C. § 371. For
those convictions to stand, the government must have presented
evidence from which a jury could reasonably find beyond a rea-
sonable doubt that: (1) a conspiracy existed; (2) the defendant
knew about it; and (3) the defendant, with knowledge, voluntarily
joined it. United States v. Sosa, 777 F.3d 1279, 1290 (11th Cir.
2015). A defendant can be convicted of conspiracy even if he did
not play a major role in the scheme, did not directly interact with
the other co-conspirators, did not participate in every stage of the
conspiracy, and did not know all of the details. United States v.
Reeves, 742 F.3d 487, 497–98 (11th Cir. 2014).
Conspiracy convictions do require proof that the defendant
knew the essential unlawful object of the conspiracy and agreed
to it. United States v. Dixon, 901 F.3d 1322, 1335 (11th Cir. 2018).
But that proof may be circumstantial, and we have “made clear
that, because the crime of conspiracy is predominantly mental in
composition, it is frequently necessary to resort to circumstantial
evidence to prove its elements.” Sosa, 777 F.3d at 1290 (alteration
adopted and quotation marks omitted). It bears noting again that
although the indictment in this case alleged multiple objects of
the conspiracy, only one of those objects needed to be proven to
support the conspiracy convictions, meaning it is enough if the
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defendants conspired to pay or receive kickbacks, even if there
was no fraud. See Medina, 485 F.3d at 1301.
For each of Howard’s two 18 U.S.C. § 1957 money launder-
ing convictions to stand, the government must have presented ev-
idence from which a jury could reasonably find beyond a reason-
able doubt that he “knowingly engage[d] in a monetary transac-
tion in criminally derived property of a value greater than $10,000
that is derived from [the kickback scheme].” United States v. Toll,
804 F.3d 1344, 1358 (11th Cir. 2015) (cleaned up).
C. The Evidence that the Jury Heard
Howard was a pharmacist and operated Fertility Pharmacy
in Winter Springs, Florida. He had owned it at least since 2010,
when, as the name suggests, it was focused on fertility related
drugs. But starting in 2014 Fertility’s focus changed to non-
fertility services and prescriptions, and by early 2015 Fertility was
entirely out of the fertility field. From 2014 until June 2015, the
vast majority of the prescriptions filled at Fertility Pharmacy were
for compounded creams for patients covered by Tricare. Accord-
ing to one person who worked there during that time, com-
pounded creams were “almost 90 percent of ” the prescriptions
that Fertility filled.
Howard told an employee who worked at Fertility and who
later testified at trial that the reason he changed his business plan
from fertility drugs to compounded creams was because of “the
pay.” He could make more for filling them than he had ever made
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filling prescriptions related to fertility. The compounded creams
were extremely lucrative for Fertility Pharmacy. According to
that employee, Howard told him that Tricare regularly paid Fertil-
ity between $14,000 and $18,000 each time it filled a compounded
cream prescription, and according to one of Fertility’s pharmacy
technicians, Tricare would pay anywhere from $9,000 to $23,000
per prescription. 4
It is unclear how much net profit Fertility made from filling
prescriptions for the compounded creams because the record does
not show what Fertility’s costs were. But the record does show
that the revenue Fertility received was substantial. During the pe-
riod of only 14 months between April 2014 and May 2015, Tricare
paid Fertility a total of $4,399,697 for filling compounded drug
prescriptions, almost all of which were for compounded creams.
Before Howard could generate that much revenue, he had
to have enough compounded cream prescriptions to fill. And the
more the better for him. To increase the number of compounded
cream prescriptions that came to Fertility, Howard took several
4 Our review of the record suggests an average reimbursement amount of
about $9,400 for filling or refilling a compounded cream prescription. That
average is based on the number of those prescription claims that Fertility
submitted to Tricare during a fourteen-month period (468), and the total
amount Tricare paid Fertility for them ($4,399,697). The $9,400 per prescrip-
tion was only an average. Tricare paid Fertility more than $19,000 for com-
pounded cream prescriptions on some occasions.
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steps. One thing he did is create a company he named “Tricare
Wellness,” which had no actual affiliation with Tricare. To pro-
mote it, he mailed a flyer advertising the “Tricare Wellness Pro-
gram” and claiming to offer several “free evaluations” for a variety
of health or wellness issues: increasing testosterone and treating
erectile dysfunction; weight loss, nutrition, and physical fitness;
bioidentity hormone replacement; and treating pain, wounds, and
scars. The flyer did not identify Fertility Pharmacy anywhere on
it, but instead directed people to call a phone number.
Calls to that number were routed to a center that Howard
had set up, where the caller would speak to someone who would
see if the caller could be written any compounded cream pre-
scriptions. The call center workers Howard employed would ask
the caller, among other things, if he had scars, wanted to lose
weight, and was active or retired military. Questions about mili-
tary service were important because active or retired members of
the military would likely have Tricare insurance, presenting the
potential for prescription payouts, each one for thousands of dol-
lars.
As a pharmacist Howard couldn’t write prescriptions, he
could only fill them. Information about Tricare eligible patients
wouldn’t do him any good unless he had a doctor who would
write the prescriptions and see that they came to Fertility Phar-
macy. That’s where Bramwell came in.
After a caller was identified by Howard’s call center em-
ployees as a potential patient who was eligible for Tricare, the
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employee entered the information on a worksheet, which was ei-
ther faxed or hand delivered to Bramwell. Always to her, never to
any other doctor. Howard was adamant about that. One em-
ployee, who worked as a pharmacy technician but also sometimes
helped with the call center, testified that it was something that
was “grilled in us, in all of us, all the time” –– that they “need[ed]
to get those [worksheets] over to Dr. Bramwell.”
Once Bramwell received a worksheet, she did not wait for
the potential patient to call her. She made the call, conducted a
phone evaluation, and then either faxed or hand-delivered one or
more compounded cream prescriptions for that patient to Fertility
–– without asking the patient for their pharmacy preference. A
witness who had worked at Fertility Pharmacy testified about a
time that Bramwell came into the pharmacy with a stack of at
least 20 prescriptions and took them into Howard’s office. After
she left the prescriptions with him, Howard was excited and
“smiling from ear to ear and he was very, very jovial at the time.”
Howard proclaimed to those who were there that it was a “really,
really good day that we had today” because he was “going to get
paid.”
Not only did Bramwell write the compounded cream pre-
scriptions that generated most of Fertility Pharmacy’s revenue,
she also did her part to bring in more patients for whom the lu-
crative prescriptions could be written and sent to the pharmacy.
One thing she did was appear in a video advertising Howard’s
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“Tricare Wellness Program,” which had the purpose of recruiting
compounded cream prescription patients.
Another thing that Bramwell did was run a free six-to-
eight- week weight loss program under the auspices of Howard’s
“Tricare Wellness Program,” even though Tricare doesn’t pay for
weight loss. The free weight loss program did provide some legit-
imate health benefits. Bramwell met with participants weekly
and gave them a packet of pills, a shot in the arm, and instruc-
tions about how to count calories. But weight loss was not the
only, or the primary, thing the program generated. It also gener-
ated more compounded cream prescriptions for Bramwell to
write, which in turn generated more revenue for Fertility Phar-
macy.
The weekly meeting of the weight loss program took place
in the back offices of Fertility Pharmacy itself. Bramwell would
weigh the participants, but that’s not all she would do. She would
also talk about pain management with some of the people and
offer to prescribe compounded creams for them. When she pre-
scribed the creams, she didn’t ask participants which pharmacy
they normally used or where they wanted their prescriptions to
be filled. Without asking the patient, she sent the prescriptions
straight to Fertility Pharmacy.
Bramwell also generated prescriptions for Fertility to fill in
other ways. She saw people who were not in her weight loss pro-
gram and persuaded them to let her write compounded cream
prescriptions for them. One of those patients stands out as a par-
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ticularly striking example of how far Bramwell went to gin up the
number of those prescriptions and the resulting revenue for Fertil-
ity. Sometime in early 2015, that patient had received a flyer that
had “a statement about pain management.” Because he had
chronic pain from injuries he had suffered during his 20 years of
service in the Army, he called the number listed on the flyer. As
far as the patient remembered, the person he spoke with asked
only whether he had Tricare insurance, and “[s]omething about a
water filtration system.” He was given an appointment to see
Bramwell in the middle of February 2015.
On the scheduled day, the patient arrived at the address he
had been given, which was located in what he described as “a
small strip mall-like” building that “didn’t seem like a doctor’s of-
fice,” but instead seemed “like some cleaning [company] of some
sort.” As he walked into the office, he noticed that “it was odd for
a clinic or a medical facility.” Even the back of the office, where
he met with Bramwell, “didn’t look like a medical office” and
didn’t have “any . . . medical equipment of any sort.” Though this
patient could not recall the name of the place he went, his de-
scription of it matched other witnesses’ descriptions of Fertility
Pharmacy. And other witnesses testified that Bramwell met with
patients at Howard’s Fertility Pharmacy.
When this patient met with Bramwell, she asked him
about the issues he had with pain and scarring, including how
long he had experienced the pain and where it was. As far as he
remembered, she didn’t do a physical exam — it was “just verbal.”
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She also asked him questions about his wife and “her medical
conditions and whatnot,” and questions similar to the ones she
had asked the patient about himself, including whether his wife
had pain and whether she had any scars.
At the end of the appointment, the patient was not given
anything: “no papers, no prescription, nothing whatsoever.” He
was told that he would soon receive “creams for [his] pain man-
agement and scarring.” But he wasn’t told those would be pre-
scription creams and was never given a prescription for them. He
didn’t pay a copay for his visit with Bramwell, and he didn’t pay a
copay for the creams.
Even so, about two weeks later, the patient received by
hand delivery a box containing eight or nine bottles of com-
pounded creams that Bramwell had prescribed for him. The pa-
tient recalled the name of the pharmacy that filled the prescrip-
tions for the creams as something about fertility.
He was surprised to see that some of the creams in the box
had been prescribed for his wife. That surprised him because
Bramwell had never seen or spoken to her, and no one had asked
Bramwell to prescribe the compounded creams or anything else
for her. Bramwell did so without authorization or permission.
The man’s wife also testified at trial, confirming her husband’s
testimony that she had never asked for the creams and had never
seen or spoken to Bramwell about anything.
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The man and his wife received several more shipments of
the creams, anywhere from “seven to nine” more boxes, which
was three months’ worth for the two of them. They stopped re-
ceiving the compounded creams around the end of April 2015,
which was right at the time Tricare’s policy changed to curtail the
exorbitant payouts to pharmacies for the creams. See supra at 10.
At no time did either Bramwell or anyone at Fertility
Pharmacy ever follow up with this man or his wife. The whole
process was, the man testified, “not the norm.” For example, he
explained, “[u]sually Tricare won’t do nothing, won’t do any med-
ical care for a patient unless you have a referral from your primary
care physician.” But he had been told when he visited Bramwell:
“Don’t worry about the referral,” and “don’t worry about the [co-
pays]. We will take care of all of that.” The man was so dis-
turbed by how strange his experience had been that he eventually
complained about it to Tricare.
For filling three months’ worth of the compounded cream
prescriptions that Bramwell wrote for this man and delivered di-
rectly to Fertility Pharmacy, Tricare paid the pharmacy
$73,757.91. And Tricare paid it $57,810.58 more for filling the pre-
scriptions for compounded creams that Bramwell, unsolicited,
had written for the man’s wife, whom she had never even seen or
talked with. In all, Tricare paid Fertility Pharmacy $131,568.49 for
the three months’ worth of compounded cream prescriptions for
this one married couple.
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The couple’s story is only some of the evidence of how ag-
gressive Bramwell was in generating compounded cream pre-
scriptions for Fertility Pharmacy, and it alone, to fill. She was
nothing if not prolific. In the 14 months between April 2014 and
May 2015, Bramwell wrote 394 prescriptions for compounded
medications, most or all of which were for creams, that were
filled by Fertility. During that entire period, she wrote 81 percent
of the total compounded drug prescriptions that Fertility filled
and charged to Tricare. The prescriptions that she wrote in that
14-month period resulted in Tricare paying Fertility a total of
$3,560,804. (Seven other doctors wrote the remaining 19 percent
of compounded drug prescriptions that Fertility filled. The one of
those seven other doctors who wrote the most compounded
cream prescriptions accounted for only approximately $331,000 of
Tricare payments to Fertility. At least some of those other doc-
tors were unindicted co-conspirators.)
It is not as if Bramwell also wrote a lot of other types of
prescriptions during that 14-month period, or even a moderate
amount of them. During the entire time she was writing $3.5
million worth of compounded cream prescriptions for Fertility
Pharmacy, she wrote only $16 worth of other types of prescrip-
tions, which made Fertility virtually nothing by comparison. She
devoted herself with obsessive exclusivity to the narrow type of
prescriptions that were most lucrative for Fertility Pharmacy, al-
most never prescribing any other type of medication.
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18-11602 Opinion of the Court 21
And Bramwell did not restrict her efforts to the State of
Florida, where she was licensed to practice. Far from it. Sixty-one
percent, or $2,184,635 of the total dollar amount, of compounded
cream prescriptions she wrote were prescriptions filled for people
who were not even residents of Florida, but lived in 16 other
states. Some lived as far away as Arizona, Oklahoma, New Jersey,
and New York. There was no evidence that she had physically ex-
amined or even seen any of those distant patients.
One might wonder why a physician would go to such
lengths to bestow so much business and so much revenue and
profit on one particular pharmacy. The answer, a jury could rea-
sonably infer from the evidence, as the jury in this case did, is that
Howard paid Bramwell to send all of those compounded cream
prescriptions to him. In the 14-month period between October
27, 2014, and December 16, 2015, Howard paid Bramwell
$138,500.
And the way he paid her is telling. He wrote her 34 differ-
ent checks ranging in amount from $1,000 to $10,000. And he
usually wrote Bramwell more than one check on the same day.
For example, he wrote her two checks on January 27, two on Feb-
ruary 11, two on February 27, and two more on November 4,
2015; he wrote her three checks on March 18, three on April 1,
and three more on June 3, 2015; and he wrote her four checks on
April 20, and four more on September 25, 2015. The memo lines
on the checks included notes such as “Weight Loss Seminar,”
“Seminar & Training,” “Weight Loss Class,” “Seminar for Pa-
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22 Opinion of the Court 18-11602
tients,” “Seminar,” “C.E. Seminar,” and sometimes various ini-
tials: “B.M/MH”; “JT & HM”; “SM R.M.” Those initials were
never identified or explained, but the jury could reasonably have
inferred that the initials “B.M./MH” corresponded to two people
for whom Bramwell had written compounded cream prescrip-
tions because two of them had those initials.
There was no evidence explaining why Howard would pay
Bramwell for conducting a weight loss seminar or class. Nor was
there any evidence of any legitimate reason why he paid her
$138,500 in 34 different checks over 14 months, which largely cor-
responded with the time she was sending him millions of dollars’
worth of prescriptions to fill.
The variation in the amounts that Howard paid Bramwell
correlated with the variation in payments Fertility received from
Tricare. Starting in October 2014, Fertility’s payments from Tri-
care jumped from $21,227 the previous month to $93,919, more
than four times as much. That October had been the first month
that Howard paid Bramwell; he paid her $2,000 then. After that,
it was off to races for both of them. Fertility’s monthly Tricare
reimbursements never dropped below $100,000 until June 2015,
when they abruptly dropped to $0 after the program’s policy
changes.
In the period from October 2014 until June 2015, Fertility’s
monthly payments to Bramwell generally increased alongside
Howard’s increasing payments from Tricare. For example, in Feb-
ruary 2015 Bramwell received $15,700, and by the peak month of
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18-11602 Opinion of the Court 23
April 2015, when Fertility received $1,562,931 from Tricare, How-
ard paid Bramwell $32,800 — his largest payment to her coincided
with his largest payment from Tricare. Howard did send Bram-
well several more payments after June 2015, including $25,000 in
July 2015 and a final $5,000 check in December 2015. (The evi-
dence does not indicate what the time lag was between Bramwell
writing a prescription and sending it to Fertility; the pharmacy fill-
ing it and filing a claim with Tricare; and the pharmacy being paid
by Tricare for filling it.)
As the district court observed at sentencing: “[Y]ou can
trace the spike in compensation by Tricare with the prescriptions
being written by Dr. Bramwell and the payments to her by Mr.
Howard. As the reimbursement [to the pharmacy] goes up, the
payments go up to Dr. Bramwell. As reimbursement goes down,
the payments go down.” That’s what kickbacks do.
We should not overlook Raymond Stone. The indictment,
evidence at trial, and jury verdict didn’t overlook him. His role in
the scheme was to recruit Tricare eligible patients to receive com-
pounded cream prescriptions. Those patients were in addition to
the ones generated by Howard’s and Bramwell’s own efforts.
To do his part, Stone used email marketing and went to
events that current and past members of the military were likely
to attend, such as meetings for submarine veterans. In his emails
to potential patients and at events, he would introduce himself as
“Lieutenant Commander Ray Stone,” a disabled submarine veter-
an. Although he was a disabled Navy veteran, Stone was neither a
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24 Opinion of the Court 18-11602
submarine veteran nor had he ever been a Lieutenant Command-
er. Far from it. When he was discharged from the Navy, his rank
was “disbursing clerk, seaman apprentice,” an enlisted position
with the second lowest pay grade in the Navy.
At the time of the kickback scheme, Stone was a vendor for
a company that sold alkaline water machines. 5 He used those
machines as a hook to generate interest in the compounded
creams. At the meetings Stone attended, he told potential pa-
tients that their status as veterans, disabled veterans, or Tricare
beneficiaries meant they could get the alkaline water machines
for free. Stone also marketed the machines by email, telling peo-
ple that “retired military” could receive the water system as an
“amazing gift,” or “at NO COST – NO STRINGS and BE PAID
TO USE IT!” He told some people that the offer would “expire”
on April 30, 2015, which, though he didn’t say it, corresponded to
the date that Tricare’s compounded cream prescription payment
policies were set to change to the detriment of pharmacies.
Stone’s statements about the alkaline water machines being
free were as accurate as his resume, which is to say not very. The
water systems were not free to anyone, veteran or not, retired or
5The machines could be used to produce alkaline water, which is water with
a pH above 7. Drinking alkaline water is purportedly good for a person’s
health, although the record does not specify how, other than possibly for
helping with weight loss; nor was the question of whether drinking it had
any beneficial effect relevant to any issue at trial.
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18-11602 Opinion of the Court 25
not, disabled or not. And Tricare did not pay any part of their
cost. A single machine cost between $1,480 and $3,980, and each
one was paid for either by Stone himself or by Howard. The
source of the payment did not affect the commission Stone got
from the company for each sale. Regardless of who paid for one
of the machines, even if he did so personally, Stone still received a
commission of about $1,000 to $1,400 a machine, depending on
the model. The more machines he sold, the more money he was
paid by the company that was marketing the machines through
him.
Along with pushing the alkaline water machines, Stone
pushed the Tricare members he recruited toward compounded
cream prescriptions. He did that by referring them to doctors, in-
cluding Bramwell. The doctors would evaluate the veterans for
pain and scars, among other things, prescribe compounded
creams, and send the prescriptions to Fertility, which would be
paid by Tricare for filling them.
Although none of the patients Stone recruited testified that
they believed they had to get compounded creams in order to be
given a “free” water machine, at least one of them testified that
Stone told him he needed to go to a doctor to get a prescription
for the machine. That was not true. And instead of that patient
going to his usual doctor, Stone set up a doctor’s appointment for
him and told the man that he “might even get some ointments for
joint pain.” That patient never actually obtained a water machine,
but he did get prescriptions for compounded creams. The pa-
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26 Opinion of the Court 18-11602
tient’s prescriptions were filled by Fertility Pharmacy after the
doctor who prescribed them “turned it in” to Fertility. Tricare
paid the pharmacy $27,585.43 for filling that patient’s prescrip-
tions.
Stone was a skilled recruiter. As a way of making sure that
Howard knew which patients he had recruited, Stone would fax
Fertility lists of the patients he had recruited, lists that often end-
ed up including “at least four new patients a week.” (Despite the
testimony at trial that Stone recruited four patients a week, at sen-
tencing he was held accountable for only 16 patients.) He was so
good at recruiting patients that, as one Fertility employee testi-
fied, Howard “was constantly upset because [his other employees]
couldn’t bring in patients, and Ray Stone was bringing in all these
patients.” Once Howard directed two of his employees to go
with Stone to a Veterans Administration hospital or medical cen-
ter so Stone could “show [them] how he was bringing in pa-
tients.” They met Stone there, and he immediately began in-
structing them how to recruit patients.
Howard kicked back to Stone in two ways. He did so di-
rectly through checks and also indirectly by paying for alkaline
water machines that Stone “sold” to other people, which earned
Stone commissions from the company that was marketing them.
Howard told one of his pharmacy employees why he was
paying Stone: he said that Stone “was getting paid for each patient
that he’d bring in.” Howard paid Stone a total of $20,528.40 in
direct payments during the three-month period between April 14,
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18-11602 Opinion of the Court 27
2015, and June 8, 2015. The payments to Stone came in the form
of six checks from companies that Howard owned or operated,
and they ranged in amount from $557.70 to $5,115.40. The
checks had the following memo lines: “Finder Fee, RT”; “Finder
Fee, SF”; “Finder Fee RH”; “Donation”; “Donation”; and
“Equipment Sales.” Stone also received commissions on at least
six water systems that Howard personally paid for.
As with Howard’s payments to Bramwell, there was no ev-
idence offered that the money he paid to Stone was for anything
other than generating patients to receive prescriptions that were
filled at Fertility and billed to Tricare. After Tricare’s policy
change in May 2015, Stone stopped sending lists of patients to
Fertility and Howard quit paying Stone.
D. The Evidence Was Sufficient to Prove All of the Charges
1. Howard Paid, and Bramwell Received, Kickbacks and They
Conspired to Do So
Bramwell contends that the evidence was insufficient to
convict her of receiving and conspiring to receive kickbacks from
Howard. And Howard contends the evidence was insufficient to
convict him of paying and conspiring to pay kickbacks to her.
They are both wrong.
Bramwell argues in her brief that the “government’s theo-
ry of prosecution fails to consider numerous legal reasons why
there might be a flow of traffic coming from Dr. Bramwell’s office
to Fertility Pharmacy including the fact some of their salesmen
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28 Opinion of the Court 18-11602
people like Mr. Stone could be referring potential patients to Dr.
Bramwell.” Initial Brief of Appellant Bramwell at 4–5. She uses
the word “including,” but her Stone-caused-me-to-do-it theory is
the only one she offers to explain why she wrote so many com-
pounded cream prescriptions that were being filled by Fertility
Pharmacy.
Her theory is plainly unconvincing for two reasons. First,
even if there were a plausible innocent explanation for her ex-
treme efforts to ensure that Fertility Pharmacy got the largest
number of compounded cream prescriptions that she could write,
the law is settled that the prosecution does not have to rule out
every innocent explanation for the conduct that supports a finding
of guilt. See Iriele, 977 F.3d at 1168 (noting that because a jury
can freely choose among reasonable constructions of the evi-
dence, “it is not necessary that the evidence exclude every reason-
able hypothesis of innocence or be wholly inconsistent with every
conclusion except that of guilt”); accord Grow, 977 F.3d at 1320;
United States v. Cabezas-Montano, 949 F.3d 567, 595 n.27 (11th
Cir. 2020). The reason that the evidence need not exclude every
hypothesis of innocence or be inconsistent with every conclusion
but guilt is that “the issue is not whether a jury reasonably could
have acquitted but whether it reasonably could have found guilt
beyond a reasonable doubt.” United States v. Campo, 840 F.3d
1249, 1258 (11th Cir. 2016) (quotation marks omitted).
Second, even if a reasonable hypothesis of innocence were
enough to bar conviction, Bramwell’s attempt to blame Stone is
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18-11602 Opinion of the Court 29
not a reasonable hypothesis of innocence anyway. Her theory as-
sumes that no more than one person could be receiving kickbacks
from Howard at any given time, which is not a valid assumption.
And even if Stone brought her every one of all of those patients
for whom she wrote 394 prescriptions that gained her kickbacks,
she is still guilty. That Stone, too, received kickbacks does not ex-
onerate her.
Not only that, but there is no evidentiary basis for her the-
ory that Stone was the cause of it all. The evidence overwhelm-
ingly proved that Bramwell played a far more significant role in
the scheme than Stone did. She, and not Stone, wrote the com-
pounded cream prescriptions that were critical to the operation of
the scheme. She, and not Stone, made sure that her prescriptions
went to Fertility Pharmacy and nowhere else. She, and not Stone,
sent the pharmacy enough of the prescriptions during a 14-month
period that Tricare paid it more than $3.5 million dollars. The en-
tire scheme was centered on compounded cream prescriptions
and Bramwell, not Stone, was the one who wrote them and saw
that they went to Fertility Pharmacy. That is why she received
nearly seven times more in kickbacks than Stone.
Bramwell’s unconvincing attempt to blame Stone for all of
the compounded cream prescriptions that she wrote for Fertility
Pharmacy to fill does nothing to explain why Howard paid her
$138,500 in 34 different checks that largely corresponded with the
period in which she was the lynchpin in the scheme that was mak-
ing him wealthy. Nor does it explain why some of those checks
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30 Opinion of the Court 18-11602
came in multiples on the same day. Nor does it explain why some
of her checks from Howard had implausible or unexplained nota-
tions on their memo lines designed to hide what the payments
were for. As the district court put it, “Those checks were dis-
guised.” False notations were put on them “to make it appear
that it was for some other service.” No wonder the jury found
beyond a reasonable doubt that Bramwell conspired to and did
receive kickbacks from Howard for sending Tricare-covered com-
pounded cream prescriptions to Fertility Pharmacy. And no won-
der the district court volunteered at sentencing that it agreed with
the jury’s verdict.
Of course, the same evidence that proves Bramwell re-
ceived kickbacks from Howard for writing compounded cream
prescriptions that his pharmacy filled also proves that Howard
paid her those kickbacks for doing it. Howard argues, as he tried
to convince the jury, that those 34 checks to Bramwell totaling
$138,500 were not to pay her for sending him $3.5 million dollars’
worth of Tricare prescription business; that was merely a coinci-
dence. The real reason he paid Bramwell all of that money in all
of those checks was, or conceivably could have been, to reward
her for assisting veterans. Maybe he was just being indirectly
charitable toward veterans, through her, because he was deeply
appreciative of their service to the country. The jury did not buy
that theory, nor did the district court, nor do we.
As we have already pointed out, the government is not re-
quired to disprove every reasonable hypothesis of innocence ––
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18-11602 Opinion of the Court 31
the jury can choose between different theories. And the govern-
ment certainly is not required to disprove an unreasonable hy-
pothesis of innocence with no evidence to support it. There is no
evidence that Bramwell was assisting veterans, except indirectly as
part of a scheme to enrich Howard and herself at the expense of
Tricare.
Remember what she was doing during the 14-month peri-
od when Fertility Pharmacy was raking in $3,560,804 from Tricare
for filling her compounded cream prescriptions, and Howard was
sending her checks. She was writing that type of prescription to
the virtual exclusion of every other kind. In the same 14-month
period between April 2014 and May 2015, Bramwell wrote 394
prescriptions for compounded medications, most or all of which
were for creams, that she made sure were filled by Fertility. She
wrote 81 percent of the total compounded drug prescriptions that
Tricare paid Fertility $3,560,804 to fill. During that same period
she wrote a grand total of only $16 worth of the far less expensive
other types of prescriptions for which Tricare paid Fertility only a
pittance by comparison. (And we do mean pittance by compari-
son: $3,560,804 is 222,550 times more than $16.)
As we have mentioned, when it came to writing prescrip-
tions Bramwell devoted herself almost exclusively to the type that
was most lucrative for Fertility Pharmacy. See supra at 16, 21–22.
It would not be reasonable to assume that virtually all of a doc-
tor’s patients who were prescribed medication required only a rel-
atively rare type of prescription medication that just happened to
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32 Opinion of the Court 18-11602
be extremely lucrative for a pharmacy whose owner just hap-
pened to be paying the doctor a substantial amount of money
during the same period of time.
It would be especially unreasonable to make such an un-
supported assumption in light of the abrupt change in Bramwell’s
actions in June of 2015. That is the first month after the Tricare
policy changes drastically cut the payments that Fertility Pharma-
cy and others were receiving for filling compounded cream pre-
scriptions. The compounded cream medications themselves did
not change, nor is there any suggestion that the medical needs of
Bramwell’s patients changed. Yet her prescribing actions changed
drastically when the monetary interest of Howard’s pharmacy
did. The Tricare policy change caused Fertility Pharmacy’s pay-
ments for filling compounded cream prescriptions to go from
$930,352 in May 2015 to $0 in June 2015.
As Fertility’s compounded cream revenue plummeted, so
did Bramwell’s interest in the medications. She suddenly went
from being a compounded cream prescription writing machine to
being a doctor who seemed unaware of the existence of that type
of medication. During the four months before the Tricare policy
change, she had written more than $500,000 worth of com-
pounded cream prescriptions monthly, all to be filled at Fertility
Pharmacy, and then she turned on a dime to writing none at all.
When that type of prescription would no longer bring in millions
of dollars of revenue for Howard and result in him favoring her
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18-11602 Opinion of the Court 33
with a steady stream of kickback payments, she lost all interest in
writing them.
And she also apparently lost interest in the well-being of
the patients for whom she had already written compounded
cream prescriptions. There is no evidence that she continued to
prescribe those special medications or followed up with any of
her patients to see if they needed a new prescription for them.
Nor is there any reason to believe that the pain and scars of all of
the patients for whom she had prescribed the compounded
creams disappeared, and that new patients with those problems
quit appearing, all at the same time that opportunities to make
big money from compounded cream prescriptions vanished.
As the district court noted, “on the issue of medical neces-
sity, patients stopped needing the creams, contemporaneous with
the change in reimbursements by Tricare, which indicates, at least
one indication, that it was not medically necessary.” Bramwell
wrote the compounded cream prescriptions because Howard was
making a lot of money off of them and kicking some of it back
to her, and she stopped writing the prescriptions when that was
no longer possible. Patient welfare was not enough to motivate
her to write them; $138,500 under the table was.
The timing of Howard’s 34 payments to Bramwell also
supported a reasonable inference of both defendants’ guilt be-
cause the frequency and amounts of Howard’s checks to Bram-
well roughly correlated with Fertility’s Tricare reimbursements.
The first month that Howard paid Bramwell was the month when
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34 Opinion of the Court 18-11602
Fertility’s reimbursements from Tricare more than quadrupled
from $21,227 to $93,919. And in April 2015, when Fertility re-
ceived $1,562,931 in reimbursements from Tricare — nearly three
times the amount it had received from Tricare in any previous
month — Howard paid Bramwell $32,800, which was nearly
twice the amount he had paid her in any previous month.
The evidence was sufficient to show that Howard paid, and
Bramwell received, kickbacks for prescriptions she wrote and his
pharmacy filled, and that they conspired to do so, as charged in
the indictment.
2. Howard Paid, and Stone Received, Kickbacks and They Con-
spired to Do So
Stone argues that the money Howard gave him “involved
bona fide, good-faith, arm’s length dealings that were far outside
the arena of and had nothing to do with Dr. Bramwell’s prescrip-
tions.” He also argues that the evidence did not show that “he
had knowledge of and participated in a conspiracy by improperly
recruiting patients to defraud Tricare.”
Stone’s arguments are conclusory and contrary to the evi-
dence. The evidence was essentially undisputed that Stone’s re-
cruiting efforts led to Howard’s pharmacy being paid a substantial
amount of money by Tricare for filling compounded cream pre-
scriptions that it would not have had an opportunity to fill but for
Stone. As a result of Stone’s recruiting skills and efforts, Tricare
paid Fertility Pharmacy at least $393,328.15 for filling compound-
ed cream prescriptions. And Howard kicked back to Stone some
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18-11602 Opinion of the Court 35
of those Tricare payments. He did so indirectly through the pur-
chase of alkaline water machines from Stone, which resulted in
the manufacturer paying commissions to Stone. See supra at 27–
28.
Howard also paid Stone more directly through a series of
checks. During one three-month period, he gave Stone six checks
ranging in amounts from $557.70 to $5,115.40. The memo lines
of those checks were telling. One of them stated “Equipment
Sales,” and two stated cryptically “Donation,” but there was never
any explanation for why Howard was “donating” the money to
Stone or what equipment he had sold Howard. Even more telling
were the memo lines on each of the other three checks. They
stated less cryptically that each of those three payments was a
“Finder Fee.” The only thing the evidence shows that Stone ever
“found” for Howard was Tricare beneficiaries who could be used
by a cooperating doctor, like Bramwell, to write prescriptions that
Howard’s pharmacy could fill in order to obtain payments from
Tricare. All part of the kickback scheme.
Not only did the checks Howard wrote prove his and
Stone’s guilt, but so did Howard’s words. One of Howard’s em-
ployees testified that he had told her that Stone “was getting paid
for each patient that he’d bring in.” That is an admission by
Howard that he was paying Stone kickbacks. The same witness
also testified that Howard was upset because others he employed
were not recruiting patients as well as Stone and he wanted Stone
to teach her and another employee how to recruit more patients
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36 Opinion of the Court 18-11602
for compounded cream prescriptions. The witness described for
the jury how Howard had directed her and a coworker to accom-
pany Stone to a Veterans Administration hospital or medical cen-
ter so that he could “show [them] how he was bringing in pa-
tients.” When the two employees met with Stone, as directed, he
“already knew why [they] were there” and “[h]e start[ed] telling
[them] what do” to recruit more patients for the prescriptions.
The jury could reasonably find, as it obviously did, that Stone and
Howard were working together to boost the number of com-
pounded cream prescriptions coming into Fertility Pharmacy,
which would benefit both of them — Howard through greater
Tricare payments, and Stone through kickbacks from Howard.
Also telling is the effect that the end of large payments for
compounded cream prescriptions had on Stone’s patient recruit-
ment efforts. He had averaged bringing in four new compounded
cream patients a week while the higher pay policy was in effect.
But after Tricare stopped paying pharmacies outrageous amounts
for filling compounded cream prescriptions, Stone stopped trying
to find new patients. When filling this type of prescription was
no longer in Howard’s interest, it was no longer in Stone’s interest
to find patients for whom the prescriptions could be written. The
kickbacks ended. Between April 14, 2015, and June 8, 2015, How-
ard had written Stone six checks totaling $20,528.50. After the
Tricare policy changes had their effect, there were no more
checks. In a kickback conspiracy, the kickbacker and kickbackee
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18-11602 Opinion of the Court 37
work together and profit together. When the profits end, the
kickbacks end as well. That is what happened here.
All of that evidence supported the jury’s finding that Stone
knew he was receiving kickbacks: he knew the essential unlawful
object of the conspiracy, and he knew Howard was paying him for
his role in it. Which was enough to find him guilty of both the
substantive crime of receiving kickbacks and conspiracy to receive
health care kickbacks. The same evidence supports Howard’s
convictions for paying Stone kickbacks and conspiring with him
to do so.
3. Howard Laundered Money
As for Howard’s money laundering convictions, his chal-
lenge rests entirely on his contention that the kickback convic-
tions must be vacated. In light of our decision to affirm Howard’s
kickback convictions, his attack on his money laundering convic-
tions necessarily fails.
III. THERE WAS NO CONSTRUCTIVE AMENDMENT
Count Four charged Howard with paying one $5,000 kick-
back to Bramwell on April 1, 2015, but the government presented
evidence that he wrote two different $5,000 checks to her on that
date. Howard contends that amounted to a constructive amend-
ment of the indictment. The government argues that the indict-
ment was not constructively amended because it “charged How-
ard with paying a $5,000 illegal kickback on April 1, 2015, and the
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38 Opinion of the Court 18-11602
evidence established the same thing.” We agree with the gov-
ernment.
The Fifth Amendment’s Due Process Clause guarantees
that a defendant can be convicted only of crimes charged in an
indictment. See United States v. Ward, 486 F.3d 1212, 1226 (11th
Cir. 2007). “A constructive amendment occurs when the essential
elements of the offense contained in the indictment are altered to
broaden the possible bases for conviction beyond what is con-
tained in the indictment.” United States v. Holt, 777 F.3d 1234,
1261 (11th Cir. 2015) (quotation marks omitted).
Howard’s indictment was not constructively amended. Ev-
idence that there were two $5,000 checks that Howard paid to
Bramwell on April 1, 2015 did not alter the essential elements of
the offense charged in Count Four of the indictment to “broaden
the possible bases for [Howard’s] conviction.” Id. (quotation
marks omitted). It didn’t because the amount of the kickback
paid is not an element of the offense. Instead, the essential ele-
ments of the offense charged are that Howard “(1) knowingly and
willfully, (2) paid money, directly or indirectly, to [Bramwell], (3)
to induce her to refer individuals to [Fertility] for the furnishing of
[compounded drugs], (4) paid for by [Tricare].” Vernon, 723 F.3d
at 1252. That the amount of the kickback Howard paid Bramwell
on April 1, 2015 was twice as large as the indictment alleged does
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18-11602 Opinion of the Court 39
not alter those elements, much less broaden them. There was no
constructive amendment. 6
IV. THE SUBSTANTIVE UNREASONABLENESS OF BRAM-
WELL’S SENTENCE
The government’s cross-appeal contends that because the
district court did not properly consider or weigh the 18 U.S.C. §
3553(a) factors, Bramwell’s sentence –– a sentence of probation ––
is substantively unreasonable. We agree.
A. The PSR and Sentence Hearing
The PSR calculated an advisory guidelines range of 78 to
97 months imprisonment for Bramwell. That range was the
product of her total offense level of 28 and her criminal history of
I; neither of those components is questioned by either party in
this appeal. The PSR’s offense level calculation recommended a
$4,399,697 loss amount. The district court eventually found that
the loss amount was approximately $900,000 lower. The revised
figure of $3,500,000 is the amount Tricare paid Fertility Pharmacy
for filling the prescriptions Bramwell wrote. That reduction in
the loss amount does not, however, affect the guidelines range.
6 Howard’s initial brief argued only constructive amendment, but the gov-
ernment preemptively addressed a variance argument in its brief. Howard
then argued variance in his reply brief, but that was too late to properly raise
the issue. See, e.g., United States v. Evans, 473 F.3d 1115, 1120 (11th Cir.
2006) (“[A]rguments raised for the first time in a reply brief are not properly
before a reviewing court.”).
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40 Opinion of the Court 18-11602
See generally U.S.S.G. § 2B1.1(b)(1)( J) (adding 18 levels to the of-
fense level when the loss amount is more than $3,500,000 and less
than $9,500,000).
The PSR also recommended, and the court applied, a two-
level increase under U.S.S.G. § 3B1.3 for abusing a position of pub-
lic or private trust. The PSR did not recommend any offense level
decrease for acceptance of responsibility, and the court did not
award any because Bramwell never accepted responsibility.
Before us, neither Bramwell nor the government questions
the final advisory guidelines range of 78 to 97 months. The gov-
ernment asked the court to impose a sentence within that range,
Bramwell asked for a downward variance to probation.
In support of her request for a 78-month downward vari-
ance, Bramwell presented more than 50 letters addressed to the
judge from relatives, friends, colleagues, and acquaintances who
attested to her good personal history, kind acts, and many virtues.
And at the sentence hearing, five of the people who had written a
letter and two other people made oral statements on her behalf.7
The seven who made oral statements were her husband, her
7 In some places in the record and the briefs on appeal the statements of
those seven people at the hearing are referred to as “testimony,” but they are
not that. The court gave defense counsel the option of having the seven
people sworn in as witnesses on Bramwell’s behalf, but he elected not to
have that done. Their statements are only statements.
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18-11602 Opinion of the Court 41
mother, her sister, her pastor, two of her childhood friends, and
the mother of a former patient. Through all the letters and oral
statements, the district court heard a great deal about Bramwell’s
background, character, career, and good deeds occurring from her
childhood up to her trial and sentencing in this case.
Bramwell also personally addressed the court at sentenc-
ing. She told the court that she “still do[esn’t] know some of
what happened” but that she “need[ed] to take responsibility for
what [she] need[ed] to learn from this.” She stated that through
the “ordeal” she had “learned many lessons” and “built such im-
mense faith.” She added: “I, again, apologize for what has hap-
pened and for the burden that this has caused, but I have never
done anything except for help people. That is what I was born to
do.”
Bramwell told the court that if she “could do this all over,
obviously, in hindsight, [she] would do things differently, so [she
was] asking [the court] now for mercy and leniency and [to] allow
[her] to be there for [her] family.” She pleaded with the court that
her elderly mother, her daughter, and her husband needed her
around to care for them.
In deciding upon her sentence, the district court pointed
out to Bramwell that prescribing compounded cream prescrip-
tions for a “number of patients you had from out of state who
you did not see in Florida” was “not a normal, customary way for
a doctor to issue a prescription, that is not having some personal
contact with the patient.” It noted that her “volume of prescrip-
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42 Opinion of the Court 18-11602
tions” for compounded creams was high “compared to the uni-
verse of prescriptions”; that the checks she received from Howard
and his companies had their nature “if not concealed, obscured by
reference to weight loss seminars”; and that she had stopped writ-
ing the prescriptions once Tricare changed its policy, which is “at
least one indication that it was not medically necessary, at least
the need that was generated through the marketing” which “was
turned off when reimbursement changed.” In other words,
Bramwell was motivated to write compounded cream prescrip-
tions not for the welfare of her patients but to generate revenue
for Howard’s pharmacy, which would result in Howard paying
her kickbacks.
Still, the district court also characterized Bramwell as
something of a victim of Howard. It noted that she had left a
hospital job to start her own business, which “is really tough,” and
“[t]hat coincided with [her meeting] Mr. Howard, a gentleman
who has virtually no redeeming value and is manipulative and
preys on people. And he found a person who was in need, that is,
[Bramwell], and he, I would imagine, presented it initially as a
perfectly legitimate, no-problem process.” The court believed
that, if Bramwell had stayed in her hospital job, she would not
have committed any crime.
The court then turned to the question of “what sentence is
sufficient, but not greater than necessary to comply with the stat-
utory purposes of sentencing.” It felt that the government had
made “a very compelling argument that any number of ways that
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18-11602 Opinion of the Court 43
[you] look[ed] at the calculation of sentencing to compare
[Bramwell] to Mr. Howard or to compare [her] with Mr. Stone
indicate[d] in favor of an incarceration sentence.” But the court
thought that a variety of factors overcame the government’s
“very compelling argument” for sentencing Bramwell to “an in-
carceration sentence.”
One of those factors, which the court gave great weight,
was Bramwell’s personal history and characteristics. The court
said it had “looked very closely at the letters” from professional
colleagues, patients, friends, and family that Bramwell had sub-
mitted and that it had “read every single one.” Those letters, and
the statements of her witnesses at the sentence hearing, all “por-
tray[ed Bramwell] as a truly remarkable person throughout [her]
life.”
The court also found that a term of imprisonment, which
the guidelines recommended, would provide no deterrence at all.
As to specific deterrence, it said that Bramwell had no criminal
history and that she had “lived an exemplary life throughout [her]
entire life,” except, the court must have meant, until she became
what the court itself described as “the driving force” in a signifi-
cant criminal enterprise. Regardless, the court reasoned that she
was not likely to commit another crime. (“I look at the need for
future deterrence for you. I don’t suspect there is any.”)
The court reasoned away general deterrence entirely based
on its stated belief that “a physician who is involved in this partic-
ular type of crime who loses their license and becomes a felon, if
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44 Opinion of the Court 18-11602
they’re going to choose to follow that path, then no sentence [the
court] impose[s] will deter them.” In other words, there would be
no general deterrent value in sentencing Bramwell — and by nec-
essary implication, any physician, pharmacist, attorney, or other
professional license holder — to a term of imprisonment.
The court also addressed the gravity of the crime. It initial-
ly said that Bramwell’s was “a serious crime,” and that the evi-
dence “indicate[d] that she was the driving force, at least in terms
of writing the prescriptions” in a criminal scheme that was a “sig-
nificant enterprise.” But it also differentiated her crime from oth-
er types of health care fraud that it found more serious. The
court compared Bramwell’s crimes to those where “prescriptions
are written for procedures not performed, for services not neces-
sary, and that are just pure out and out fraud. That is not this
case. This one’s different.” The court believed that Bramwell’s
crime was “somehow uniquely different than an outright fraud for
which a prescription is necessary” because hers “was more a mat-
ter of generating an interest, generating a client base and then
writing the prescriptions to capitalize on that which ended when
reimbursement rates changed.” Apparently, the court meant it
was done to capitalize on a large enough revenue flow that
Bramwell could be paid tens of thousands of dollars in kickbacks.
The court addressed the need for Bramwell’s sentence to
be proportionate to those of her two co-defendants. As for How-
ard, it noted that he was “the architect” of the scheme, had
“showed no remorse,” and had even attempted to get a witness to
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18-11602 Opinion of the Court 45
change testimony. The court said “there’s no comparing [Bram-
well] to him.” The court also distinguished her from Stone. It
said Stone “was involved in pure solicitation” and that “[h]e trad-
ed on his knowledge of the military and his professed rank as a
submarine commander to compel people to seek the benefits that
Tricare had to offer.” Stone also had “no history of good
works . . . just simply none.”
After discussing all of those factors, the court announced
the sentence. It found that the guidelines range of 78 to 97
months imprisonment overrepresented the seriousness of Bram-
well’s offense. It varied all the way down from the 78 months at
the bottom of the range to zero months imprisonment. It sen-
tenced Bramwell to three years of probation with one of those
years to be served in home detention (with permission to leave for
work, medical appointments, and that type of thing), and no fine,
though restitution was ordered later.
The court explained to Bramwell her sentence: “It is a vari-
ance and the variance is for the reasons I’ve identified, which is
the lack of your criminal history, the fact that you have collateral
consequences that are significant — you will likely lose your li-
cense, you’ll be a convicted felon going forward –– and the fact
that this seems to be aberrant.” About her criminal conduct be-
ing aberrant, the court acknowledged that her crime “was not a
one-time instance” and was committed over a “lengthy period of
time” but concluded that it was “nonetheless, aberrant behavior
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46 Opinion of the Court 18-11602
from the way you’ve lived your life.” The government objected
that the sentence was substantively unreasonable.
B. Analysis
When sentencing a criminal defendant, district courts are
required to consider the advisory guidelines range and the factors
set forth in 18 U.S.C. § 3553(a). See United States v. Rosales-
Bruno, 789 F.3d 1249, 1253–54 (11th Cir. 2015). “The district
court’s task is to impose a sentence that will adequately (1) ‘reflect
the seriousness of the offense,’ (2) ‘promote respect for the law,’
(3) ‘provide just punishment,’ (4) ‘afford adequate 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.” Id. (quoting 18 U.S.C. § 3553(a)(2)).
“The task is a holistic endeavor that requires the district court to
consider a variety of factors: (1) the nature and circumstances of
the offense, (2) the defendant’s history and characteristics, (3) the
kinds of sentences available, (4) the applicable sentencing guide-
lines range, (5) pertinent policy statements of the Sentencing
Commission, [(6)] the need to provide restitution to any victims,
and [(7)] the need to avoid unwarranted sentencing disparities.”
Id. at 1254 (citing 18 U.S.C. § 3553(a)).
The court is not required to give all of the § 3553(a) sen-
tencing factors equal weight. Id. In its sound discretion, the court
may give “great weight to one factor over others,” id., but only if
it is reasonable to do so. And though the sentencing guidelines
are only advisory, a major variance from the guidelines range
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18-11602 Opinion of the Court 47
“should be supported by a more significant justification than a
minor one,” and a court must “consider the extent of the devia-
tion and ensure that the justification is sufficiently compelling to
support the degree of the variance.” Gall v. United States, 552
U.S. 38, 50 (2007); see also United States v. Irey, 612 F.3d 1160,
1196 (11th Cir. 2010) (en banc) (“Although there is no proportion-
ality principle in sentencing, a major variance does require a more
significant justification than a minor one . . . .”).
We review only for an abuse of discretion the substantive
reasonableness of a sentence. Irey, 612 F.3d at 1188–91. But
“[l]ooking at sentencing decisions through the prism of discretion
is not the same thing as turning a blind eye to unreasonable ones.”
Id. at 1191. As we have emphasized, “the district court’s choice of
sentence is not unfettered.” United States v. Pugh, 515 F.3d 1179,
1191 (11th Cir. 2008). “The fetters on a district court’s sentencing
discretion are the requirement of reasonableness and the exist-
ence of appellate review to enforce that requirement. While
those fetters are loosened by the substantial discretion we afford
district courts in sentencing, at the boundaries of reasonableness
the fetters do fetter.” Irey, 612 F.3d at 1191. The Supreme Court
has succinctly described our role in sentence review: “At times,
[district courts] will impose sentences that are unreasonable. Cir-
cuit courts exist to correct such mistakes when they occur.” Rita
v. United States, 551 U.S. 338, 354 (2007).
“A district court abuses its discretion [in sentencing] when it
(1) fails to afford consideration to relevant factors that were due
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48 Opinion of the Court 18-11602
significant weight, (2) gives significant weight to an improper or
irrelevant factor, or (3) commits a clear error of judgment in con-
sidering the proper factors.” Irey, 612 F.3d at 1189 (quotation
marks omitted). A court “commits a clear error of judgment
when it considers the proper factors,” but “weighs those factors
unreasonably, arriving at a sentence that does not ‘achieve the
purposes of sentencing as stated in § 3553(a).’” Id. (quoting Pugh,
515 F.3d at 1191). We will vacate a sentence on that ground if,
and only if, we “are left with the definite and firm conviction that
the district court committed a clear error of judgment in weigh-
ing the § 3553(a) factors by arriving at a sentence that lies outside
the range of reasonable sentences dictated by the facts of the
case.” Id. at 1190 (quoting Pugh, 515 F.3d at 1191).
We are left with that definite and firm conviction here. Of
the three general ways we’ve articulated that a district court could
abuse its discretion when sentencing — failing to afford considera-
tion to relevant factors, giving significant weight to an improper
factor, and committing a clear error of judgment in considering
proper factors and the weight they were due — the court engaged
in each one in this case.
1. The Failure to Properly Consider the Relevant Factors of the
Seriousness of the Offense, the Need to Promote Respect for the
Law, and the Need to Provide Just Punishment for the Offense
At the sentence hearing, the district court acknowledged
that Bramwell’s criminal conduct was serious, noting that “she
was the driving force [of the scheme], at least in terms of writing
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18-11602 Opinion of the Court 49
the prescriptions,” and that the evidence indicated Bramwell’s
“awareness that this was a significant enterprise that was being
undertaken.” The court recounted the details of her extensive
role, including that she had appeared in a promotional video for
Howard and the several ways in which the prescriptions she
wrote were of a questionable nature. The court also acknowl-
edged that she had written 394 prescriptions, which amounted to
more than $3,500,000 in loss to Tricare.
Even though the court did state that Bramwell had com-
mitted “a serious crime,” it also diminished the seriousness of
her health care crimes (receiving kickbacks and conspiring to do
so), comparing them to another type, which involves prescrip-
tions written for unperformed procedures and unnecessary ser-
vices “that are just pure out and out fraud.” The court stated:
“That is not this case. This one’s different.” What Bramwell did,
the court reasoned, was “more a matter of generating an inter-
est, generating a client base and then writing the prescriptions to
capitalize on that which ended when reimbursement rates
changed.” That description of her conduct leaves out the fact
that she received $138,500 in kickbacks for writing the prescrip-
tions.
Along those lines, the court asked the prosecutor how what
Bramwell did was different from ophthalmologists who advertise
Lasik eye surgery. Why, the court wanted to know, did Bram-
well’s conduct not amount to meeting people’s medical needs
with medications that they had not known existed? The prosecu-
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50 Opinion of the Court 18-11602
tor answered that ophthalmologists who advertise Lasik services
are not running a significant multi-million-dollar criminal enter-
prise based on health care kickbacks. They are not conspiring to
commit, and are not committing, federal crimes.
Not only that, but as the district court itself seemed to rec-
ognize elsewhere in its remarks, Bramwell and her co-
conspirators were not driven by their desire to serve medical
needs. See supra at 34. Any idea that Bramwell was acting pri-
marily to meet the medical needs and best interest of her pa-
tients –– which would not have been a defense to violating the
anti-kickback statute –– is refuted by one loud fact. After 14
months of promoting and writing prescriptions for compounded
creams at an average rate of about one a day, Bramwell abruptly
stopped when Tricare stopped paying pharmacies exorbitant
amounts to fill those prescriptions. See supra at 33–35. When
the source of revenue Howard used to pay Bramwell kickbacks
dried up, the kickbacks did too, and so did the flow of prescrip-
tions from her.
Bramwell was motivated by the $138,500 in illegal pay-
ments she received from Howard for the 394 compounded cream
prescriptions she sent his pharmacy over a period of 14 months.
The district court implicitly recognized as much when it ex-
pressed the belief that Bramwell would not have joined the con-
spiracy if she had not been in financial difficulty and needed the
kickbacks. And those kickbacks came in the form of 34 checks
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18-11602 Opinion of the Court 51
“disguised” (to use the district court’s word) to look as though
they were for legitimate purposes.
The district court’s decision to sentence Bramwell to pro-
bation evidences its failure to give sufficient weight to the seri-
ousness of her crimes. We have held that a sentence of proba-
tion with some home detention is a substantively unreasonable
sentence for other defendants who have committed white-collar
crimes, even when those defendants’ crimes didn’t last as long or
result in as much loss as Bramwell’s did. For example, when a
defendant pleaded guilty to one count of making a false state-
ment for the purpose of receiving credit from a bank, in violation
of 18 U.S.C. § 1014, we said the scheme “was a serious one.”
United States v. Crisp, 454 F.3d 1285, 1286, 1290 (11th Cir. 2006);
see id. at 1287–88, 1292 (vacating as substantively unreasonable a
sentence of five hours of imprisonment and five years supervised
release with 12 months of it to be served in home detention).
That scheme extended over a period of approximately 8 months
and the loss amount of the victim bank totaled less than a half
million dollars. Id. at 1290.
Bramwell’s crime, by contrast, continued for more than a
year and inflicted a loss that was seven times greater than the one
in the Crisp case. Bramwell’s crime also caused more loss than in
United States v. Kuhlman, 711 F.3d 1321 (11th Cir. 2013), a health
care fraud case where we rejected as substantively unreasonable a
non-incarceration sentence. Id. at 1324, 1330 (vacating a proba-
tion and community service sentence as substantively unreason-
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52 Opinion of the Court 18-11602
able when the loss amount was $2,944,883); see also United
States v. Hayes, 762 F.3d 1300, 1302 (11th Cir. 2014) (vacating as
substantively unreasonable a sentence of probation with six to
twelve months of home detention where the defendant paid
$600,000 in bribes and made $5,000,000 in profit).
What we said in the Crisp case applies here as well: “For
such a serious offense, however, [Bramwell] did not receive so
much as a slap on the wrist — it was more like a soft pat.” 454
F.3d at 1291; cf. Kuhlman, 711 F.3d at 1328 (“He stole nearly $3
million and ‘did not receive so much as a slap on the wrist—it
was more like a soft pat.’”) (quoting Crisp, 454 F.3d at 1291).
White collar medical crimes like Bramwell’s are serious be-
cause they can disrupt health care markets. See Kuhlman, 711
F.3d at 1328. Even if every prescription she wrote were medical-
ly appropriate and Bramwell was only ginning up patients for
whom she could write non-fraudulent prescriptions in return for
payments from a pharmacist, that kind of criminal conduct
skews the health care market by distorting its incentive structure.
Congress has determined that medical necessity and the best in-
terest of the patient should be the only reason for a physician to
write a prescription; kickbacks provide a baser, non-medical rea-
son: making unauthorized money and lots of it. A physician
who is paid under the table by a pharmacy for writing prescrip-
tions that it fills has an incentive to write more prescriptions, or
more costly ones, than she would if acting only in the best medi-
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18-11602 Opinion of the Court 53
cal interests of her patients. There is no medical necessity excep-
tion to the law forbidding kickbacks. See 42 U.S.C. § 1320a-7b(b).
Anti-kickback laws exist to prevent the perversion of incen-
tives, to ensure that actors, such as those in the health field, act
for the proper reasons, to avoid a conflict of interest when it
comes to the exercise of medical judgment. See United States v.
Patel, 778 F.3d 607, 617 (7th Cir. 2015) (“[T]he prospect of a kick-
back gave [the defendant] an increased incentive to charge Medi-
care for these services — exactly the type of incentive that Con-
gress sought to eliminate by passing the Anti-Kickback Statute.”);
cf. United States ex rel. Obert-Hong v. Advocate Health Care, 211
F. Supp. 2d 1045, 1050 (N.D. Ill. 2002) (“The Stark and Anti–
Kickback statutes are designed to remove economic incentives
from medical referrals . . . .”).
The sentence of probation with some home detention that
the district court imposed does not reflect the seriousness of the
offense, does not promote respect for the law, and does not pro-
vide just punishment. See 18 U.S.C. § 3553(a)(2)(A).
2. The Failure to Properly Consider the Relevant Factor of Gen-
eral Deterrence
In “determining the particular sentence to be imposed,” a
sentencing court is required to consider, among other factors,
“the need for the sentence imposed . . . to protect the public from
further crimes of the defendant,” id. § 3553(a)(2)(C), and “to af-
ford adequate deterrence to criminal conduct,” id. § 3553(a)(2)(B).
Those sentencing factors cover both specific deterrence and gen-
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54 Opinion of the Court 18-11602
eral deterrence. See Irey, 612 F.3d at 1210–13. As for specific de-
terrence, the court found that there was little or no likelihood that
Bramwell would commit the same or similar crimes again. The
government does not dispute that finding.
The problem is with general deterrence. The district court
reasoned away the statutory command that it consider the need
for Bramwell’s sentence to have a general deterrent effect, as
completely as if it had erased that requirement from the Sentenc-
ing Act. To justify its decision not to give that factor any role in
sentencing doctors who commit health care crimes, the court
stated that if the prospect of losing their medical license and be-
coming a felon is not enough to deter doctors from committing
such crimes, the threat of a prison sentence could not deter them
from committing the crimes either. Its exact words were: “I think
a physician who is involved in this particular type of crime who
loses their license and becomes a felon, if they’re going to choose
to follow that path, then no sentence I impose will deter them.”
Therefore, the reasoning goes, general deterrence may be, and
should be, disregarded entirely when the criminal or would-be
criminal is a doctor. Which is what the court did.
The court’s reasoning would mean that not just doctors,
but also pharmacists, and lawyers, and all other professionals who
hold licenses, cannot be deterred by the threat of a prison sen-
tence from committing a crime that will result in loss of their li-
cense anyway. And for that reason, in these kinds of cases it
would mean § 3553(a)(2)(B)’s command that sentencing courts
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18-11602 Opinion of the Court 55
factor in the need for general deterrence can be skipped where
the defendant was a professional who used or abused her license
to commit the crime.
If the district court’s ruling were approved, it would effec-
tively blue pencil out of the United States Code for professionally
licensed defendants an imperative that Congress wrote into it. It
would tell judges not to consider general deterrence when sen-
tencing any criminals who used their professional license or privi-
lege to commit their crime. Anyone with a license to practice a
profession could abuse the privileges that come with that license
to commit crimes without fear of being sent to prison in order to
deter others from using their licenses to commit similar crimes.
That cannot be right, and it isn’t right.
Congress, the United States Sentencing Commission, and
this Court have all decided that general deterrence is a critical fac-
tor that must be considered and should play a role in sentencing
defendants, including those who wear white collars and practice a
profession. See, e.g., United States v. Martin, 455 F.3d 1227, 1240
(11th Cir. 2006) (“[T]he Congress that adopted the § 3553 sentenc-
ing factors emphasized the critical deterrent value of imprisoning
serious white collar criminals, even where those criminals might
themselves be unlikely to commit another offense[.]”); see gener-
ally Kuhlman, 711 F.3d at 1328–29 (collecting cases that have held
non-incarceration sentences for white-collar crimes to be substan-
tively unreasonable). We have emphasized that “[p]lainly, general
deterrence is one of the key purposes of sentencing.” United
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56 Opinion of the Court 18-11602
States v. McQueen, 727 F.3d 1144, 1158 (11th Cir. 2013) (cleaned
up); see also Irey, 612 F.3d at 1193 (“General deterrence is one of
the key purposes of sentencing, and the district court abused its
discretion when it failed to give that matter its proper weight.”)
(quoting United States v. Camiscione, 591 F.3d 823, 834 (6th Cir.
2010)).
General deterrence is more apt, not less apt, in white collar
crime cases. The reason is that “economic and fraud-based crimes
are more rational, cool and calculated than sudden crimes of pas-
sion or opportunity,” which makes them “prime candidates for
general deterrence.” Kuhlman, 711 F.3d at 1329 (quoting Martin,
455 F.3d at 1240). White collar criminals “often calculate the fi-
nancial gain and risk of loss” of their crimes, and an overly lenient
sentence sends the message “that would-be white-collar criminals
stand to lose little more than a portion of their ill-gotten gains
and practically none of their liberty.” Martin, 455 F.3d at 1240; see
also United States v. Brown, 880 F.3d 399, 405 (7th Cir. 2018)
(agreeing with the “widely accepted principle” that white collar
crimes are “prime candidates for general deterrence”).
As we said of the defendant in the Martin case: “The fact
that [his] guidelines range was 108–135 months’ imprisonment
evinces Congress’s attempt to curb judicial leniency in the area of
white collar crime. The district court’s 7-day sentence not only
fails to serve the purposes of § 3553, but even worse, undermines
those purposes.” 455 F.3d at 1240. The same is true in this case.
The fact that Bramwell’s guidelines range was 78 to 97 months
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18-11602 Opinion of the Court 57
evinces Congress’ purpose to curb judicial leniency in white collar
crime cases, and it shows that her sentence of no jail time at all
interferes with that purpose. Leniency undermines general deter-
rence, and the extreme leniency of a probation sentence under-
mines it extremely. See Kuhlman, 711 F.3d at 1329. It sends the
wrong message and sends it loudly and clearly.
What is true of white collar crimes generally is no less true
of health care crimes in particular. Just as “[i]nsurance companies
must rely on the honesty and integrity of medical practitioners in
making diagnoses and billing,” id. at 1328, the government must
rely on them when it’s administering health care programs like
Tricare. As one Navy Captain from the Defense Health Agency
testified in this case, because Tricare doesn’t want to put red tape
in the way of veterans getting the care that they need, “the sys-
tem is based on trust.” We’ve also noted that “health care fraud is
so rampant that the government lacks the resources to reach it
all,” id., and the same is no less true of crimes involving govern-
ment health care programs like Tricare. That is apparent from
the Tricare compounded cream craze and the facts of this case.
See supra at 3–5, 9–10.
All of those considerations establish that “when the gov-
ernment obtains a conviction” in a health care kickback prosecu-
tion, “one of the primary objectives of the sentence is to send a
message” to others who contemplate such schemes that their
crime is a serious one “that carries with it a correspondingly seri-
ous punishment.” Kuhlman, 711 F.3d at 1328. A sentence of pro-
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58 Opinion of the Court 18-11602
bation, whether or not coupled with a period of home detention,
is insufficient. As we have explained: “The threat of spending
time on probation simply does not, and cannot, provide the same
level of deterrence as can the threat of incarceration in a federal
penitentiary for a meaningful period of time.” Id. (quotation
marks omitted). “In awarding [Bramwell] probation . . . the dis-
trict court disregarded the importance of delivering” the message
to other health care providers that her crime was a serious one.
Id.
In writing off general deterrence as a sentencing purpose
when it comes to doctors who commit health care crimes, the dis-
trict court undermined “one of the primary objectives of the sen-
tence” in such a case. Id. That fundamental error contributed to
the unreasonable sentence the court imposed.
3. The Decision to Give Weight to the Improper Factors of
Loss of Professional License, Convicted Felon Status, and
the Temptation and Opportunity to Commit the Crime
a. Loss of Professional License
The district court gave significant weight to the fact that
Bramwell would — as she ultimately did — lose her medical li-
cense. Although the court did not specify which § 3553(a) sen-
tencing factor the loss of license was relevant to, it apparently had
in mind the factor of “just punishment for the offense.” See 18
U.S.C. § 3553(a)(2)(A). The theory appears to have been that loss
of her medical license was a collateral effect of Bramwell’s con-
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viction, which serves to punish her, thereby lessening the need to
use imprisonment as punishment.
One concern that arises from discounting the need for (or
length of ) a prison term when the defendant loses a professional
license upon conviction is that the only defendants who benefit
from a lesser sentence on that ground are those who have a pro-
fessional license to lose. And there is some correlation between
professional licenses and socio-economic standing, which poses
the risk of building in lower sentences for those in higher socio-
economic groups. That would not be a good revision of the
guidelines.
“The Sentencing Guidelines authorize no special sentenc-
ing discounts on account of economic or social status.” Kuhlman,
711 F.3d at 1329. We have held that it is “decidedly inappropriate”
for a district court to rely “on the defendant’s chosen profession
and status in the community” to justify a large downward vari-
ance. Id. (quotation marks omitted). Such lenient sentences “are
typically unavailable to defendants of lesser means who are con-
victed of economic crimes.” Id. We have “encourage[d] our dis-
trict court colleagues to keep in mind” that “[c]riminals who have
the education and training that enables people to make a decent
living without resorting to crime are more rather than less culpa-
ble than their desperately poor and deprived brethren in crime.”
Id. (quotation marks omitted). And the distribution of profes-
sional licenses correlates with education and training.
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60 Opinion of the Court 18-11602
We are aware of the Supreme Court’s decision in Koon v.
United States, 518 U.S. 81 (1996). That was a pre-Booker (pre-
variance era) case involving police officers convicted for violating
the civil rights of a suspect by using excessive force. Id. at 88.
The district court had departed downward on the ground that the
defendants would lose their employment and tenure as police of-
ficers and not be able to work in law enforcement again. Id. at
109. The Supreme Court rejected the argument that a downward
departure could never be appropriate based on the conviction’s
impact on the defendant’s career. It said: “[A] defendant’s career
may relate to his or her socioeconomic status, but the link is not
so close as to justify categorical exclusion of the effect of convic-
tion on a career.” Id. at 110 (emphasis added). The Court added
that “socioeconomic status and job loss are not the semantic or
practical equivalents of each other.” Id.Although the Supreme Court did reject the downward de-
parture in the Koon case on other grounds, see id. at 110–11, 113–
14, the import of the words we have quoted from its opinion is
that in some circumstances it may be proper to consider in sen-
tencing the effect that the conviction will have on the defendant’s
position and career. But what circumstances?
We faced that question the next year in a case with facts
much closer to the present one than the facts in the Koon case
are. The defendant in our Hoffer case was a physician who lost
his medical license because he was convicted of felonies that re-
sulted from use of his prescription writing authority. United
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States v. Hoffer, 129 F.3d 1196, 1198–99 (11th Cir. 1997). He had
pleaded guilty to conspiring to illegally dispense controlled sub-
stances and to tampering with a witness. Id. at 1199. One of the
conditions of the plea bargain was that he surrender his medical
license and agree to never apply to be a physician again. Id. At
sentencing, the district court departed downward four levels
based in part on the defendant’s “loss of the privilege to practice
medicine.” Id. at 1199, 1205. That’s close to what we have here.
In deciding whether that downward departure in
Hoffer was proper, we assessed the Koon decision and the Su-
preme Court’s statement that the effect of a conviction on a de-
fendant’s career is not categorically excluded from consideration
in sentencing. This is what we said:
The clear implication of the Supreme Court’s state-
ment is that collateral employment consequences
could, under some set of circumstances, serve as a
basis for a departure from the sentencing guidelines.
The Court did not specify what those circumstances
were. We will not speculate about all of the possibil-
ities, either. It is enough for present purposes that
the Koon Court did not indicate that the loss of an
employment or career position could be a basis for
departure where that loss was the direct result of the
defendant abusing the trust inherent in that very po-
sition, an abuse of trust for which the guidelines re-
quire an enhancement.
Id. at 1204.
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62 Opinion of the Court 18-11602
Because the defendant’s base offense level in Hoffer had
been enhanced under U.S.S.G. § 3B1.3 for using his special skills as
a physician to facilitate the commission of his crimes and abusing
his position of trust as a physician, we held that the downward
departure for loss of his medical license was improper. Id. The
way Hoffer had abused his position of trust and his privileges as a
physician is similar to the way Bramwell abused hers:
Hoffer betrayed society’s trust by using his prescrip-
tion writing privileges to distribute controlled sub-
stances outside the legitimate practice of medicine.
It was because Hoffer was a physician, and was en-
trusted as a physician with prescription writing au-
thority, that he was able to commit the crimes for
which he was convicted.
Id. Bramwell did not unlawfully distribute controlled substances,
but she did “betray[] society’s trust by using [her] prescription
writing privileges to” fuel a kickback scheme. Id. As in Hoffer, it
was only “because [Bramwell] was a physician, and was entrusted
as a physician with prescription writing authority, that [she] was
able to commit the crimes for which [she] was convicted.” Id.
And Bramwell, like Hoffer, had her offense level enhanced be-
cause she abused her position of trust as a physician to commit
her crimes.
In our Hoffer opinion we looked to the background notes
to U.S.S.G. § 3B1.3, which were relevant because:
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The Commission, in § 3B1.3, stated that circum-
stances such as these warrant a sentence enhance-
ment. In the background notes to § 3B1.3, the
Commission explained that persons who abuse their
positions of trust or use their special skills to facili-
tate or conceal the commission of a crime “generally
are viewed as more culpable.” Yet, the district
court’s treatment of the position of trust Hoffer en-
joyed, his medical license and physician status, net-
ted out to a lesser sentence for him. The court gave
Hoffer a four-level downward departure for losing
his position of trust, which more than wiped out the
two-level enhancement mandated by § 3B1.3 for
Hoffer’s abuse of that position of trust.
Society, employers, and licensing authorities usually
view abuse of a position of trust to commit or facili-
tate crimes as misconduct warranting loss of that
position of trust. As a result, in virtually every case
in which a § 3B1.3 enhancement is warranted, there
will also be a loss of a position of trust. The two
sanctions or results are inextricably intertwined. Al-
lowing downward departures for loss of professional
or employment position in cases in which that loss
flows from an abuse of trust that warrants a § 3B1.3
enhancement would nullify the mandate of § 3B1.3.
The Commission cannot have intended such a result.
Id. at 1204–05. There has been no material change in the guideline
or the background notes since we wrote that in the Hoffer deci-
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64 Opinion of the Court 18-11602
sion, apart from the fact that the guidelines are no longer manda-
tory. See U.S.S.G. § 3B1.3 cmt. background.
While Hoffer dealt with a downward departure and this
case involves a downward variance, similar principles come into
play. It would not make sense to prescribe the § 3B1.3 upward
enhancement in the offense level for abuse of a position of trust
through misuse of a medical or other professional license, and
then allow that enhancement and the reason for it to be wiped
out (or more) solely because of the resulting revocation of that
same license. Whatever circumstances may weigh in favor of a
downward variance because of the impact the conviction has on a
defendant’s career prospects, loss of a professional license that
was abused in the course of committing the crime is not one of
them.
As Hoffer illustrates, the reasoning behind § 3B1.3 is that
defendants who abuse a position of trust deserve more severe
punishment, not less. Cf. United States v. Mateos, 623 F.3d 1350,
1366, 1369 (11th Cir. 2010) (affirming a substantial upward vari-
ance in sentencing a doctor for health care fraud crimes because
of several “compelling justifications,” one of which was that “a
doctor should be punished more severely than other participants
because the doctor is breaching a position of trust and an ethical
obligation to put the patient’s interest first”). Applying that rea-
soning behind § 3B1.3 to medical doctors is also consistent with
Congress’ command to the Sentencing Commission to review the
guidelines and policy statements for Federal health care offenses
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18-11602 Opinion of the Court 65
to “ensure that the Federal Sentencing Guidelines and policy
statements . . . reflect the serious harms associated with health
care fraud and the need for aggressive and appropriate law en-
forcement action to prevent such fraud.” Patient Protection and
Affordable Care Act of 2010, Pub. L. No. 111–148, §
10606(a)(3)(A), 124 Stat. 119, 1007 (March 23, 2010). Granting
doctors a downward variance because they lose the medical li-
cense they abused to commit their health care crimes would be in
serious tension with that congressional command.
A district court may sometimes “vary from the guidelines
based solely on its judgment that the policies behind the guide-
lines are wrong.” Irey, 612 F.3d at 1212; see also Kimbrough v.
United States, 552 U.S. 85, 105–09 (2007) (holding that variances
can sometimes be based on the sentencing judge’s disagreement
with whether a guideline properly reflects the § 3553(a) factors);
Spears v. United States, 555 U.S. 261, 264 (2009) (“[Kimbrough
recognized] district courts’ authority to vary from the crack co-
caine Guidelines based on [a] policy disagreement with them, and
not simply based on an individualized determination that they
yield an excessive sentence in a particular case.”). But a variance
based on “such a disagreement is permissible only if a District
Court provides sufficiently compelling reasons to justify it.” Irey,
612 F.3d at 1211 (quotation marks omitted).
That restriction applies because the Sentencing Commis-
sion and the district court have “different strengths [that] affect
the amount of respect due a court’s decision to vary from the
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66 Opinion of the Court 18-11602
guidelines range.” Id. at 1188. The Commission “has the capacity
courts lack to base its determinations on empirical data and na-
tional experience, guided by a professional staff with appropriate
expertise.” Kimbrough, 552 U.S. at 109 (quotation marks omit-
ted). Generally, its “recommendation of a sentencing range will
reflect a rough approximation of sentences that might achieve
§ 3353(a)’s objectives.” Id. (quotation marks omitted). “The sen-
tencing judge, on the other hand, has greater familiarity with the
individual case and the individual defendant before him than the
Commission or the appeals court.” Id. (quotation marks and el-
lipsis omitted). That familiarity puts the district court “in a supe-
rior position to find facts and judge their import under § 3353(a)
in a particular case.” Id. (quotation marks omitted).
The result of those “discrete institutional strengths” is that
“a district court’s decision to vary from the advisory Guidelines
may attract greatest respect when the sentencing judge finds a
particular case outside the heartland to which the Commission
intends individual Guidelines to apply.” Id. (quotation marks
omitted). By contrast, “closer review may be in order when the
sentencing judge varies from the Guidelines based solely on the
judge’s view that the Guidelines range fails properly to reflect §
3553(a) considerations even in a mine-run case.” Id. (quotation
marks omitted) That is what we have here.
By varying downward because Bramwell lost her license to
practice medicine, the district court expressed its disagreement
with the guidelines policy of imposing greater sentences on de-
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18-11602 Opinion of the Court 67
fendants who misuse their professional license. As we recognized
in Hoffer, “in virtually every case in which a § 3B1.3 enhancement
is warranted, there will also be a loss of a position of trust.” 129
F.3d at 1205. The district court’s theory — that the loss of her
medical license was a collateral effect of Bramwell’s conviction,
which serves to punish her, thereby lessening the need to use im-
prisonment as punishment — would apply in every case in which
a defendant with a professional license abuses a position of trust
bestowed by that license. This case, and the multitude of others
like it, is squarely within the heartland of cases to which § 3B1.3
applies. Cf. Irey, 612 F.3d at 1203 (“The district court’s reliance on
the theory that pedophiles have reduced volition, applying as it
does to virtually all crimes involving sexual abuse of children,
does not take this case outside the heartland to which the Com-
mission intended the guidelines relating to sexual offenses against
children to apply.”).
The district court’s decision to vary downward based in
part on Bramwell’s loss of the medical license and privilege that
she abused in committing the crime does not stand up to the
“closer review” that Kimbrough authorizes in a mine-run case like
this one. In Kimbrough, the district court varied downward from
the guidelines range for crack cocaine offenses, under which a
crack cocaine dealer was “subject to the same sentence as one
dealing in 100 times more powder cocaine.” 552 U.S. at 91. The
government argued that the sentencing court lacked the discre-
tion to deviate from that 100-to-1 sentencing ratio because it was
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68 Opinion of the Court 18-11602
mandatory. See id. at 101–02, 111. The Supreme Court rejected
that argument, pointing out that the Commission itself had taken
the “consistent and emphatic position that the crack/powder dis-
parity [was] at odds with § 3553(a).” Id. at 111. Under the cir-
cumstances, the Court held that it was not an abuse of discretion
for the district court to impose a substantial downward variance.
Id. at 110, 111.
By contrast, in Irey the district court’s “conclusory state-
ment of personal belief ” about pedophilia did not provide a “suf-
ficiently compelling reason[] to justify” a downward variance. 612
F.3d at 1211–12 (quotation marks omitted). We concluded that
the “district court made a clear error of judgment in downplaying
the importance of deterring [sex crimes against children].” Id. at
1212. We also rejected as unreasonable “the district court’s view
that the guidelines involving sex crimes against children are too
harsh in a mine-run case because pedophiles have impaired voli-
tion.” Id. at 1203; see also Pugh, 515 F.3d at 1201 n.15 (rejecting a
probation-only sentence that was based on the district court’s pol-
icy disagreement with the guidelines because the guidelines sen-
tences for child pornography crimes “do not exhibit the deficien-
cies the Supreme Court identified [in the crack cocaine guide-
lines] in Kimbrough”).
The district court did not provide a sufficiently compelling
reason to justify a downward variance based on Bramwell’s loss of
her medical license. It stated only that losing a medical license is a
“collateral consequence[] that [is] significant.” That conclusory
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18-11602 Opinion of the Court 69
statement does not justify rejecting the Sentencing Commission’s
policy determination that a criminal who abuses a position of
trust to facilitate the commission of her crime should be subject
to a guidelines enhancement. See U.S.S.G. 3B1.3 cmt. background
(“This adjustment applies to persons who abuse their positions of
trust or their special skills to facilitate significantly the commis-
sion or concealment of a crime.”); Cf. Hoffer, 129 F.3d at 1204–05.
That is especially true with medical licenses given the congres-
sional command regarding health care crimes that we have al-
ready discussed. See supra at 65–66.
Exercising the review permitted by Kimbrough, “we reject
as unreasonable and a clear error in judgment the district court’s
view that the guidelines involving [the abuse of a medical license]
are too harsh in a mine-run case” simply because the doctor will
lose her license as a result of her felony conviction. Irey, 612 F.3d
at 1203.
As we held in Hoffer, we also hold here: “the district court
abused its discretion by granting [Bramwell] a downward [vari-
ance] based upon loss of [her] privilege to practice medicine.”
129 F.3d at 1206; accord United States v. Steele, 178 F.3d 1230,
1239 (11th Cir. 1999) (holding that it was an abuse of discretion
for the district court to grant a downward departure based on the
loss of a pharmacist license when that departure would negate an
enhancement imposed for the defendant’s abuse of his position as
a pharmacist); see also United States v. Musgrave, 761 F.3d 602,
608 (6th Cir. 2014) (holding it was impermissible for a court in
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70 Opinion of the Court 18-11602
sentencing a defendant for bank fraud to consider collateral con-
sequences such as “the likely loss of his CPA license”); cf. Mateos,
623 F.3d at 1366.
b. Convicted Felon Status
In urging the court to give Bramwell a sentence of proba-
tion, defense counsel argued that: “The Court can also consider
all the other collateral consequences that she will have to live with
for the rest of her life as a convicted felon, as a basis for granting a
downward departure or variance.” The court accepted that invi-
tation. In the list of reasons it gave Bramwell for varying all the
way down to a sentence of probation for her, the court included
the fact that she would “be a convicted felon going forward.”
The problem with using felon status to support a down-
ward variance is that all but a tiny percentage of those to whom
the sentencing guidelines are applied will be “a convicted felon
going forward.” Bramwell was sentenced in May of 2018. Of the
68,664 defendants who were sentenced under the guidelines that
fiscal year, 65,724 or 95.7% were sentenced for committing felo-
nies. See U.S. Sent’g Comm’n, 2018 Annual Report and Source-
book of Federal Sentencing Statistics 42 (2019). A factor that ex-
ists in more than nineteen out of twenty cases is not a proper ba-
sis for varying upward or downward from the guidelines range. It
is just an expected, ordinary, everyday fact of life for defendants
sentenced under the guidelines.
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c. Temptation and Opportunity to Commit the Crime
The district court also appears to have given weight to an-
other improper factor in deciding to vary from the guidelines
range of 78 to 97 months all the way down to zero months. The
court was of the view that Bramwell was a victim of Howard,
who preyed on her in a time of financial need. As we have men-
tioned, the court pointed out Bramwell was in a “really tough”
position financially, having left a hospital job to start her own
business. She met Howard, whom the court characterized as “a
gentleman who has virtually no redeeming value and is manipula-
tive and preys on people.” The court speculated (saying “I would
imagine”) that Howard initially presented the kickback scheme
“as a perfectly legitimate, no-problem process” to Bramwell, who
was a person “in need.” If only Bramwell had stayed in her hospi-
tal job, the court believed, she would not have needed the kick-
back money and would not have committed any crime.
We accept as fact that Bramwell would not have commit-
ted the crimes of conspiring to take and of taking kickbacks if she
had not needed money. But that hardly sets her apart from others
who have been convicted of financial crimes in the health care
world or elsewhere. We also accept that she would not have giv-
en in to temptation if the temptation had not existed and an op-
portunity had not been presented. But the same can be said gen-
erally of many, if not most, criminals, especially white collar ones.
Oscar Wilde advised that, “The only way to get rid of a
temptation is to yield to it.” Oscar Wilde, The Picture of Dorian
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72 Opinion of the Court 18-11602
Gray and Selected Stories 35 (Signet Classic 1962) (1891). That
witticism may contain enough ironic truth to prompt a smile, but
it is not a principle that has a home in the Sentencing Act or in
binding precedent. A major downward variance to a sentence of
probation cannot be justified by the fact that Bramwell was
tempted by financial need and was given an opportunity to com-
mit the crime.
4. The Unwarranted Disparity Between Bramwell’s Sentence and
that of Stone and Defendants in Other Cases Convicted of Similar
Crimes
Among the factors that a sentencing court must consider is
“the need to avoid unwarranted sentence disparities among de-
fendants with similar records who have been found guilty of simi-
lar conduct.” 18 U.S.C. § 3553(a)(6). We’ve identified the factor
of unwarranted disparities as “a particularly important one when
reviewing the substantive reasonableness of a sentence because
one of the primary purposes of appellate review of sentences is
to iron out differences in order to avoid undue disparity.” Irey,
612 F.3d at 1219.
Co-defendant Stone had a guidelines range of 33 to 41
months. The court varied downward nine months to sentence
him to 24 months imprisonment. Yet the court sentenced Bram-
well, who had a guidelines range of 78 to 97 months, to 0 months
imprisonment. The court varied downward the full 78 months
for Bramwell, but only 9 months for Stone. The court sentenced
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18-11602 Opinion of the Court 73
Stone, a wheel-chair bound, disabled veteran, to serve two years
in prison. It sentenced Bramwell to serve not a single day.
This disparity is unwarranted and all the more glaring
when the objective metrics of their criminal conduct are com-
pared. The duration of criminal behavior, the loss amount inflict-
ed, and the ill-gotten gains obtained all point in one direction, but
the substantial difference in the sentences the court imposed runs
in the opposite direction. Comparing the duration of their crimi-
nal behavior, the court found that Stone was involved in the crim-
inal scheme for four months. Bramwell was involved in it for 14
months –– three-and-a-half times longer. Comparing the loss
amount they inflicted, Stone was involved in $393,328 or 9 percent
of the total loss, Bramwell was involved in $3,560,804 or 81 per-
cent of the total loss –– nine times more. See Crisp, 454 F.3d at
1291 (noting that “along with other relevant factors under the
guidelines, loss serves as a measure of the seriousness of the of-
fense and the defendant’s relative culpability”) (quoting U.S.S.G. §
2B1.1 cmt. background). Comparing their ill-gotten gains, Stone
received $20,528 in kickbacks, while Bramwell received $138,500 –
– nearly seven times more. The sentencing guidelines took those
substantial differences into account, which is why Bramwell’s
guidelines range was more than twice as high as Stone’s. Bram-
well’s wrongdoing dwarfed Stone’s. But the court sent Stone, and
not Bramwell, to prison.
It is true that a difference in sentences is not unwarranted if
meaningful differences in the co-defendants’ conduct and situa-
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74 Opinion of the Court 18-11602
tions justify it. See, e.g., United States v. Duperval, 777 F.3d 1324,
1338 (11th Cir. 2015). There are differences between Bramwell
and Stone, but most of them actually weigh heavily against
Bramwell receiving a dramatically lighter sentence than Stone did.
As we have just described, the significant differences in their in-
volvement in the criminal scheme — measured by how long they
participated, how much loss they inflicted, and how much money
they made from the criminal conduct –– all point toward a longer
sentence for Bramwell than for Stone.
Consider also the district court’s own, accurate finding
about Bramwell’s role in the criminal enterprise. The court found
that “she was the driving force [of the scheme], at least in terms
of writing the prescriptions.” And, of course, writing the pre-
scriptions was at the core of the criminal enterprise. The enter-
prise couldn’t have happened, at least not near the level it did,
without the role she played as the driving force. And she energet-
ically performed that critical role for 14 months, writing 394 com-
pounded cream prescriptions, which amounted to 81 percent of
the enterprise’s total. And Tricare paid Fertility Pharmacy
$3,560,804 to fill the prescriptions she wrote.
Unlike Bramwell, Stone didn’t write any prescriptions; he
couldn’t. He was just a recruiter, and he was one for only four
months. He was held accountable for recruiting only sixteen of
the patients for whom Fertility filled compounded cream pre-
scriptions.
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18-11602 Opinion of the Court 75
Even though the district court recognized that Bramwell
was the driving force behind the criminal scheme, it still thought
she deserved a lighter sentence than Stone. The court pointed
out that Stone “was involved in pure solicitation” and “traded on
his knowledge of the military and his professed rank as a subma-
rine commander to compel people to seek the benefits that Tri-
care had to offer.” The use of the term “compel” is inaccurate in
this context. There is no evidence that Stone compelled any Tri-
care beneficiary to go to Bramwell or any other physician for a
compounded cream prescription. He was in no position to com-
pel anyone. Stone did persuade and influence people to obtain
those prescriptions, just as Bramwell influenced and persuaded
many of them to let her write them. But persuasion is not com-
pulsion.
In addition to being the criminal enterprise’s driving force
as prescription-writer-in-chief, Bramwell also did her part in re-
cruiting patients. She appeared in a promotional video for How-
ard’s deceptively named “Tricare Wellness Program.” She also
used her own weight loss program to proselytize about com-
pounded creams, which have nothing to do with weight loss. She
called Tricare-eligible patients that Howard’s call center employ-
ees had identified as prospects and, even though they were not
her patients, she persuaded some to let her write compounded
cream prescriptions for them.
The district court pointed out that Stone “traded on his
knowledge of the military and his professed rank . . . to compel
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76 Opinion of the Court 18-11602
people.” But even if persuasion through knowledge and position
amounts to compulsion, Bramwell did the same, using her
knowledge of medicine and her trusted position as a doctor to get
people to let her write them compounded cream prescriptions.
Not only that, but she wrote the prescriptions for one woman
whom she had never seen or spoken with. See supra at 19–20.
That instance goes beyond the district court’s definition of com-
pulsion, and way beyond solicitation. Solicitation of prospective
patients cannot serve as a basis for justifying a harsher sentence
for Stone than for Bramwell.
The district court was moved by what Bramwell’s support-
ers said on her behalf at the sentence hearing and by the large
number of letters it received from her family members, friends,
neighbors, former colleagues, and others, all attesting to Bram-
well’s reputation, virtues, community service, and history of
good works. The content of those statements is impressive. Rely-
ing on them, the court contrasted her with Stone, who it said had
“no history of good works . . . just simply none.” The court was
mistaken.
To be sure, the number of people who came forward for
Stone did not approach the number who came forward for
Bramwell. But two people did make statements in support of
Stone at his sentence hearing, and the court received letters from
one of those people and from four other people attesting to his
good character, kindness, and work ethic.
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One of those letters was from Stone’s fiancée, a nurse, who
told the court about the extraordinary way Stone had helped her
through the process of adopting a baby. She described how he
“was very supportive every step of the way” and “was there hold-
ing [her] together when things got rough, and overwhelming.”
After the baby boy was born, Stone made a two-and-a-half-hour
trip to visit him every day of the week he was in the neonatal in-
tensive care unit. Because the adoptive mother was a nurse work-
ing three twelve-hour shifts every weekend and had no family in
the area, Stone stepped up to take care of her baby so that she
could work to support her child and herself.
As she put it, “[t]his man was living in a hotel room in a
wheelchair caring for a newborn baby, so his mama can work to
provide for her child.” To her, that was “very honorable of him[,]
something he did not have to do, but he did.” And she added, “so
many men today don’t even take care of their naturally born chil-
dren, and here is a man who sacrificed for a child who was not
even his.” The district court did not find that the woman wasn’t
credible, and it would have been hard pressed to do so. Her
statements were corroborated at the sentence hearing by a friend
of Stone’s who had witnessed how he had looked after the child
so the mother could work. The same friend described how Stone
had also served as his caregiver. Apparently, the court simply
overlooked the good works and kindness of Stone that were re-
counted in the woman’s letter and the man’s statements at Stone’s
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78 Opinion of the Court 18-11602
sentence hearing. The court’s belief that Stone had no history of
good works, “simply none,” was mistaken.
Regardless, the court abused its discretion in imposing a
sentence on Bramwell that was so far out of line with the sen-
tence it had imposed on Stone. The “history and characteristics
of the defendant” is an important factor in sentencing. See 18
U.S.C. § 3553(a)(1). But it should not be the single-minded focus
to the detriment of all other factors. See Crisp, 454 F.3d at 1292(“The district court focused single-mindedly on the goal of resti-
tution to the detriment of all of the other sentencing factors. An
unreasonable approach produced an unreasonable sentence.”).
That is what happened here and what caused the district court to
impose a sentence on Bramwell that was so out of line with the
one it imposed on Stone. Cf. Irey, 612 F.3d at 1221 (“The disparity
arises not because the defendants in the cited cases were denied a
downward variance they should have received and were sentenced
too harshly, but because [the defendant in this case] was given a
downward variance he should not have received and was sen-
tenced too leniently.”).
Not only is Bramwell’s sentence of probation substantially
out of line with the sentence imposed on Stone, our precedent
establishes that it would be substantively unreasonable even if it
were not unduly out of line with Stone’s. See United States v.
Hall, 965 F.3d 1281, 1299 n.5 (11th Cir. 2020) (comparing the de-
fendant’s sentence to the sentences of defendants in other cases
who had similar records and were found guilty of similar con-
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18-11602 Opinion of the Court 79
duct) (citing 18 U.S.C. § 3553(a)(6)); Duperval, 777 F.3d at 1337–38
(considering the defendant’s argument that “his sentence is unrea-
sonable because defendants in similar cases received lower sen-
tences”). We’ve already discussed how our precedent emphasizes
the need for general deterrence in financial crime cases and how
our decisions have vacated sentences of probation, or probation
with some period of home detention, for white collar criminals.
See supra at 56–59.
Some of that precedent involves sentences in financial
crime cases that we vacated as unreasonably lenient even though
the defendants had so readily and thoroughly cooperated with the
government that they received downward departures under
U.S.S.G. § 5K1.1 for substantial assistance. See Hayes, 762 F.3d at
1307–08, 1310–11 (vacating a probation sentence that included
home confinement); Martin, 455 F.3d at 1237–42 (vacating a sen-
tence of seven days in custody after previously vacating a sen-
tence of probation that included home confinement); Crisp, 454
F.3d at 1287–89 (vacating a sentence of five hours imprisonment
and five years supervised release with 12 months of it in home
confinement); see also United States v. Livesay, 587 F.3d 1274,
1277–79 (11th Cir. 2009) (vacating, for the third time, a probation
sentence); cf. Kuhlman, 711 F.3d at 1325–26, 1330 (vacating a pro-
bation sentence as substantively unreasonable when the defendant
had not received a § 5K1.1 departure but had paid full restitution
and had logged 391 hours of community service before his sen-
tence hearing).
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80 Opinion of the Court 18-11602
Those decisions show that the probationary sentence im-
posed on Bramwell, who did not render any assistance, is unrea-
sonably lenient and out of line with other sentences imposed in
similar cases. Unlike the defendants in the Hayes, Martin, Crisp,
and Livesay cases, Bramwell did not qualify for a § 5K1.1 substan-
tial assistance reduction. Far from it. She did not even qualify for
an acceptance of responsibility reduction.
And after she was convicted and was facing the judge at
sentencing, Bramwell still couldn’t quite face up to the fact that
she had committed a crime. She stated that she “still d[id]n’t know
some of what happened.” She acknowledged that she “need[ed]
to take responsibility for what [she] need[ed] to learn from this,”
and apologized “for what has happened and for the burden that
this has caused,” but she insisted that she had “never done any-
thing except for help people,” which “is what [she] was born to
do.” As the prosecutor summed up Bramwell’s attitude: She’s
“not a person who has accepted responsibility to her community,
to her family and to her loved ones; [she’s] a person who still
thinks she hasn’t done anything wrong.”
Because she refused to accept responsibility or cooperate,
Bramwell’s sentence of probation is even more unreasonable than
the probation sentences we vacated in the Hayes, Crisp, and Live-
say white collar crime cases. In each of those three cases the de-
fendants did accept responsibility and rendered substantial assis-
tance to the government. Cf. United States v. Docampo, 573 F.3d
1091, 1101 (11th Cir. 2009) (“[D]efendants who cooperate with the
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18-11602 Opinion of the Court 81
government and enter a written plea agreement are not similarly
situated to a defendant who provides no assistance to the gov-
ernment and proceeds to trial.”); Duperval, 777 F.3d at 1338
(holding that a defendant was not similarly situated to, and thus
could receive a much higher sentence than, a co-defendant who
had “cooperated with the government and pleaded guilty”).
5. The Clear Error of Judgment When Weighing Bramwell’s Pre-
Crime History and Characteristics Against Her Serious and Pro-
longed Criminal Conduct
The Sentencing Act provides that courts can and should
consider “the history and characteristics of the defendant.” 18
U.S.C. § 3553(a)(1). But that history cannot be considered in isola-
tion and without regard to the criminal conduct for which the
defendant has been convicted and the characteristics it reveals. All
of the circumstances and applicable factors must be considered
and given weight. A sentencing court may give one factor sub-
stantially more weight than others. Rosales-Bruno, 789 F.3d at
1254. But only if it is reasonable to do so and only to the extent
that it is justified. See Crisp, 454 F.3d at 1292 (noting that “a dis-
trict court’s unjustified reliance upon any one § 3553(a) factor is a
symptom of an unreasonable sentence”) (cleaned up).
The letters and oral statements of her supporters that
Bramwell presented are strong and relevant evidence of her pre-
criminal personal history and of her personal characteristics. The
court was correct to consider them. But in light of the totality of
the circumstances, that factor cannot reasonably be held to out-
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82 Opinion of the Court 18-11602
weigh all of the other § 3553 factors in this case. See Pugh, 515
F.3d at 1194 (holding a “non-custodial sentence” unreasonable and
noting that the district court “minimized—and in some instances,
ignored—many . . . important Section 3553(a) concerns”).
“[S]ignificant reliance on a single factor does not necessarily ren-
der a sentence unreasonable,” Kuhlman, 711 F.3d at 1327 (empha-
sis added), but a court’s “unjustified reliance upon any one
§ 3553(a) factor is a symptom of an unreasonable sentence,”
Crisp, 454 F.3d at 1292 (cleaned up).
In the Hayes case, the district court varied from an adjusted
guidelines range of 41 to 51 months to a sentence of probation
for a 67-year-old, white collar defendant with no prior criminal
history who “was genuinely remorseful, was not likely to commit
further crimes, and was not a risk to the public.” See 762 F.3d at
1302, 1305, 1308. But we held that the 41-month downward vari-
ance to probation was substantively unreasonable and noted those
specified factors “are usually present in most white-collar cases
resulting in a guilty plea.” Id. at 1308, 1310–11. And that is, if any-
thing, even more true in health care fraud cases. See U.S. Sent’g
Comm’n, The Criminal History of Federal Offenders 4–6 (2018);
U.S. Sent’g Comm’n, Quick Facts, Health Care Fraud Offenses
(2018) (“The majority of health care fraud offenders had little or
no prior criminal history (86.8% of these offenders were assigned
to Criminal History Category I).”). Our holding in Hayes is at
least as apt here because Bramwell, unlike the defendant in Hayes,
did not accept responsibility and plead guilty, did not provide sub-
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18-11602 Opinion of the Court 83
stantial assistance to the government, was not elderly, and was not
in deteriorating physical health. 762 F.3d at 1302–05.
In this case, the district court gave far more weight to the
§ 3553(a)(1) history and characteristics factor than to any other
factor — more weight than it gave to all of the other factors com-
bined. Its sentencing decision was based primarily on the good
deeds Bramwell had performed and the characteristics she had
demonstrated before she became what the court itself found to be
“the driving force” in a significant criminal enterprise that operat-
ed with her energetic participation for more than a year, that re-
sulted in a multi-million dollar loss, and that ended only when the
source of revenue funding the illegal payments was cut off.
To say the district court was moved by the supporting
words of Bramwell’s many friends, relatives, and co-workers is an
understatement. The court was so moved by them that it allowed
those reports about Bramwell’s non-criminal history and deeds to
outweigh six factors that strongly favored a greater than mere
probation sentence. To recap, those six factors are: the nature and
circumstances of the offense, 18 U.S.C. § 3553(a)(1); the serious-
ness of it, id. § 3553(a)(2)(A); the need to promote respect for the
law, id.; the need to provide for just punishment, id.; the need to
afford adequate deterrence, id. § 3553(a)(2)(B); and “the need to
avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct,”
id. § 3553(a)(6).
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84 Opinion of the Court 18-11602
The court decided that the combined weight of those six
factors were outweighed by the single factor of Bramwell’s pre-
crime life and characteristics as described in the letters and state-
ments supporting her. And it decided that the combined heft of
those six factors was outweighed by enough of a margin to justify
not only a downward variance but an extraordinary downward
variance –– from an imprisonment range of 78 to 97 months to a
sentence of zero months, zero weeks, and zero days in custody.
Before varying down from six-and-a-half years to proba-
tion, the court stated that it was “fully . . . aware of the fact that
[§] 3553 factors would support a period of incarceration.” And it
told Bramwell that the prosecutor had made “a very compelling
argument that any number of ways that [it] look[ed] at the calcu-
lation of sentencing to compare [her] to Mr. Howard or to com-
pare [her] with Mr. Stone indicates in favor of an incarceration
sentence.”
In discussing the letters and statements that supported
Bramwell and swayed it, the court said this:
I sincerely hope when the sentence I’m about to
pronounce is reviewed by the Court of Appeals that
they take the time to [r]ead the letters, that they take
the time to listen to the [unsworn supporting state-
ments] I heard, because there is a level of inherent
goodness that’s portrayed about you that I can’t just
ignore. It’s something that is real. You can tell it
from the people who write about you who know
what you did. I disagree that your community
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18-11602 Opinion of the Court 85
doesn’t know. I don’t imagine that they know every-
thing, but they — people writing to me knew that
you had been convicted, they didn’t debate the mer-
its of that conviction, and they still had to say about
you what they said about you.
Doc. 280 at 84–85 (emphasis added).
It is apparent from the part of the quoted remarks we have
emphasized that the letters supporting Bramwell made a greater
impression on the court because it thought the letter writers did
not quarrel with the fact that Bramwell was, as the jury found,
guilty of committing serious crimes. See id. (explaining its view
that the letter writers “know what [she] did” and “didn’t debate
the merits of [her] conviction”). The court’s thought being, we
suppose, that it’s easier to vouch for someone as honest and mor-
ally upright after she’s been convicted of a serious crime involving
moral turpitude if you believe she is innocent of that crime and
was wrongly convicted. But if you accept that she’s guilty of a
serious crime and you are still convinced she is a good person,
that is really something.
As the district court hoped, we did read all of the letters, as
well as the transcript of the oral statements made on Bramwell’s
behalf at the sentence hearing. Which is why we know that the
district court was mistaken. At least a dozen of the letter writers
insisted Bramwell was not guilty, some of them fervently. Each of
these quotations is taken from a different letter:
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86 Opinion of the Court 18-11602
• “Finally, while I am unaware of the specific charges against
Dr. Bramwell, I remain convinced that she did nothing
wrong . . . and that allegations to the contrary are false.”
Doc. 207 at 21 (Catherine Lamprecht).
• “To believe anything dishonest, cruel, prideful[] or greedy
about Nicole Bramwell is to not know her at all.” Id. at 28
( Jeanne Cates).
• “I’d stake my reputation on the fact that Dr. Nicole didn’t
and wouldn’t conspire to defraud anyone knowingly. She’s
just not that kind of person. Hard working, yes! Loyal, Yes!
Faithful, Yes! Integrity, Yes, Yes! A Great Doctor, Yes! Hon-
est, Yes! Giving, Yes! A conspirator, No Way! A Crook, No
Way! A Thief, No way!” Id. at 36 (Pastor Kevin Craig).
• “I am deeply hurt by the charges against Dr. Bramwell and
believe she has been falsely accused.” Id. at 41 (Kyria
Dukes).
• “As an experienced clinical scientist, I listened hard [at the
trial] for information that would prove my assessment of
her to be wrong. I did not hear it. I am not a fool who
would continue to support a physician whom I believe to
be dishonoring my profession.” Id. at 51 ( Janice Howell).
• “Ethically, her standards are second to none. It is such a
tragedy that she has been associated with such a heinous
event. I am positive without any doubt that she would not
knowingly participate in any questionable activities that
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18-11602 Opinion of the Court 87
would compromise her career, her family, herself, or her
ethics.” Id. at 62 (Adria Jackson).
• “I believe in her innocence . . . .” Id. at 72 (Kimberly May).
• “I know that Dr. Bramwell is innocent of these charges.”
Id. at 79 (Wanda Muhammad).
• “Knowing her personality, I know she would not intention-
ally break the law.” Id. at 90 (Carolyn Ramsey).
• “I was startled to hear of her present legal difficulties and
very much doubt that Dr. Bramwell purposely violated any
laws.” Id. at 91 (Douglas Short).
• “At no time, would Nicky knowingly accept money, or oth-
er rewards, that she didn’t earn honestly! . . . There has
been absolutely no sign that she has been receiving any-
thing, as a kickback. Nicky has worked hard to earn money
from legal jobs, and would not jeopardize her reputation;
her as well as her family’s future and well-being; or go
against her values; for money from kickbacks!” Id. at 97–98
(Maxine Thames-Parchment).
• “I am deeply saddened and hurt by the outcome of the ini-
tial verdict, and perplexed by how or why she’s even having
to go through this at all. . . . Your Honor, if there is any-
thing legally within your power that you can do to right
this wrong against my sister, I thank you . . . .” Id. at 106–
07 (Danielle Jeanine Bramwell).
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88 Opinion of the Court 18-11602
Unfortunately, the letter-writing supporters listed and
quoted above, and other people who were convinced that Bram-
well was incapable of dishonesty and was innocent of the crimes
that she was convicted of committing, were mistaken. The evi-
dence, much of which was undisputed, overwhelmingly proved
that Bramwell was guilty of being an essential part of a multi-
million dollar criminal enterprise that operated for more than a
year, and might still be operating if not for a change in govern-
ment policy. See supra at Part II.D.1. The jury found beyond a
reasonable doubt that Bramwell was guilty and the district court
agreed.
The supporting letters and unsworn statements at the sen-
tence hearing had a powerful effect on the court. Their impact
was enough to overcome the court’s being, as it said, “fully . . .
aware of the fact that [§] 3553 factors would support a period of
incarceration” and its being aware that “[t]his is a serious crime.”
And their impact was enough to persuade the court not to act on
what it called the “very compelling argument” that Bramwell
should receive “an incarceration sentence.” Despite all of the
compelling reasons it should have sentenced Bramwell to some
imprisonment, her supporters convinced the court that Bramwell
should not serve a single day in jail.
Addressing Bramwell, the court stated that what her sup-
porters had written and said about her was the reason she was not
going to serve any time. The court told her it was convinced
“there is a level of inherent goodness that’s portrayed about [her]
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18-11602 Opinion of the Court 89
that [it] can’t just ignore. It’s something that is real.” The court
complimented Bramwell, saying she had “lived an exemplary life
throughout [her] entire life” and had been “a truly remarkable
person.” At the same time, the court noted that Bramwell’s
crimes were “not a one-time instance,” but in fact continued over
“a lengthy period of time.” And it acknowledged that her criminal
conduct was serious but concluded “it is, nonetheless, aberrant
behavior from the way [she had] lived [her] life, and that simply
has to be considered.”
To be sure, the way someone has lived her life before she
decided to become the driving force in a significant, long-running,
multi-million dollar criminal enterprise should be considered.
Section 3553(a)(1) says the history and characteristics of the de-
fendant must be considered. The district court was correct to
consider that factor, and it can justify some of the difference be-
tween Stone’s and Bramwell’s sentences, but not the difference
between two years and probation. It was not reasonable to give
Bramwell’s history and characteristics so much emphasis that the
factor outweighed all of the factors strongly indicating that some
imprisonment was needed to serve the goals of sentencing.
It was unreasonable for the court to let that factor over-
come what it told Bramwell was “a very compelling argument
that any number of ways that [it] look[ed] at the calculation of
sentencing to compare [her] to Mr. Howard or to compare [her]
with Mr. Stone indicates in favor of an incarceration sentence.” It
was unreasonable to give that factor so much weight that it re-
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90 Opinion of the Court 18-11602
sulted in a 100 percent downward variance of 78 months.
See Gall, 552 U.S. at 50 (“[A] major [variance] should be supported
by a more significant justification than a minor one.”); Irey, 612
F.3d at 1196 (“Although there is no proportionality principle in
sentencing, a major variance does require a more significant justi-
fication than a minor one. . . .”).
After announcing the sentence, the court stated:
It is a variance and the variance is for the reasons I’ve
identified, which is the lack of your criminal history,
the fact that you have collateral consequences that
are significant –– you will likely lose your license,
you’ll be a convicted felon going forward –– and the
fact that this seems to be aberrant.
Doc. 280 at 90.
Bramwell’s lack of criminal history had already been fac-
tored into her criminal history score, which resulted in a lower
guidelines range than if she had a criminal history. See Martin,
455 F.3d at 1239 (“While the district court emphasized [the de-
fendant]’s lack of a criminal record and viewed his fraudulent
conduct as an ‘aberration’ in his otherwise outstanding life, [the
defendant]’s criminal history category of I already takes into ac-
count his lack of a criminal record.”). And, as we’ve already dis-
cussed, the two collateral consequences of Bramwell losing her
medical license and becoming a convicted felon are not proper
bases for a downward variance. See supra at Part IV.B.3.
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18-11602 Opinion of the Court 91
That brings us to the court’s reliance on its view of Bram-
well’s criminal behavior as “aberrant.” Use of that term is accu-
rate if we close our eyes to the scope and length of her eager and
energetic participation in the multi-million-dollar criminal enter-
prise that began in April 2014. From that date forward she was
the driving force in a $3.5 million kickback scheme spread out
over more than a year, during which she wrote 394 prescriptions
in return for 34 different kickback checks disguised to cover up
the crimes. As the prosecutor pointed out, “for approximately 14
months . . . , more than once a day on average, she was making
the absolute decision to engage in this scheme. That’s not aberra-
tional conduct. That’s not an isolated incident. That is repetitive,
repetitive conduct.”
At the beginning of her criminal career, Bramwell’s con-
duct was enough of a change in her previous law-abiding behav-
ior that the first few compounded cream prescriptions she wrote
and the first few kickback checks she accepted could be called ab-
errant conduct. But somewhere during the fourteen-month dura-
tion of her repetitive criminal conduct, while she was taking near-
ly three dozen kickback checks for writing compounded cream
prescriptions over and over until she had written 394, her criminal
conduct ceased being aberrant and became normal for her, part
of her way of life, a regular source of income.
And it is not as if Bramwell stopped participating in the
kickback scheme because of a change of heart, or because she
had a moral epiphany and suddenly realized the wrongness of her
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92 Opinion of the Court 18-11602
ways, or because the “inherent goodness” that the district court
saw in her had finally taken charge. Instead, Bramwell stopped
committing kickback crimes only when a major policy change by
Tricare cut off the revenue source that had fueled the criminal
conspiracy. Once that happened, the criminal enterprise Bram-
well had been the driving force in could no longer be driven.
There is no reason to doubt that but for the change in the Tricare
payment policy, she would still be driving it along, writing com-
pounded cream prescriptions and accepting kickbacks, with her
inherent goodness in the backseat.
6. Summary
It is our duty to vacate a sentence as substantively unrea-
sonable if we “are left with the definite and firm conviction that
the district court committed a clear error of judgment in weigh-
ing the § 3553(a) factors by arriving at a sentence that lies outside
the range of reasonable sentences dictated by the facts of the
case.” Irey, 612 F.3d at 1190 (quoting Pugh, 515 F.3d at 1191). A
sentencing court commits a clear error of judgment, even if it
considers all of the proper factors, when it “weighs those factors
unreasonably, arriving at a sentence that does not ‘achieve the
purposes of sentencing as stated in § 3553(a).’” Id. at 1189 (quot-
ing Pugh, 515 F.3d at 1191). The error is even more apparent
when the court not only does not consider all of the proper §
3553 factors, but also considers some factors that are inapplicable
in the case before it. That is what happened here.
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18-11602 Opinion of the Court 93
In varying downward from the bottom of the guidelines
range by six-and-a-half years, or 100 percent, to arrive at a sen-
tence of probation, the district court diminished the seriousness
of the offense, did not promote respect for the law, and did not
provide just punishment for the offense. See supra at Part IV.B.1.
It gave no weight at all to the need to impose a sentence that will
deter other doctors from committing criminal conduct of this
kind. See supra at Part IV.B.2. And it improperly relied on
Bramwell’s loss of her medical license, her convicted felon status,
and the fact that she was tempted and had an opportunity to
commit the crime. Because of her position of trust as a medical
doctor, she had many opportunities to violate the law and she did
so, over and over again. There is no evidence at all that she ever
declined to write a prescription that would help get her a kick-
back. See supra at Part IV.B.3.
The district court also unreasonably allowed Bramwell’s
exemplary pre-criminal life and her good qualities, as attested to
by her relatives, friends, and acquaintances, to outweigh the com-
bined force of all of the factors warranting a sentence of impris-
onment. See supra at Part IV.B.5; see also Irey, 612 F.3d at 1193(“At the substantive stage of reasonableness review, an appellate
court may consider whether a factor relied on by a sentencing
court can bear the weight assigned to it.”) (citation and quotation
marks omitted); Pugh, 515 F.3d at 1194 (“[A] sentence may be un-
reasonable if it is grounded solely on one factor, relies on imper-
missible factors, or ignores relevant factors. At the end of the day,
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94 Opinion of the Court 18-11602
the sentence in this case is unreasonable, and the district court’s
analysis suffers from many of these ‘symptoms.’”) (citation omit-
ted). Bramwell’s pre-criminal history and characteristics is a fac-
tor that can bear considerable weight, but not all of the weight
the court put on it.
Finally, by sentencing Bramwell to no time in custody, the
court created an unwarranted disparity between her sentence and
the 24 months of imprisonment that the court imposed on her co-
conspirator Stone. He was involved in the criminal enterprise for
much less time than Bramwell, played a far less important role
than she did, and profited only a fraction as much. See supra at
Part IV.B.4; see also Shah, 981 F.3d at 923–24 (affirming the con-
viction of a doctor who wrote 209 compounded cream prescrip-
tions during one six-month period of a yearlong conspiracy; who
received a total of $55,350.43 in kickbacks, which cost Tricare
“more than a million dollars”; and who was sentenced to 36
months imprisonment).
For all of these reasons, we “are left with the definite and
firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sen-
tence that lies outside the range of reasonable sentences dictated
by the facts of the case.” Irey, 612 F.3d at 1190 (quoting Pugh, 515
F.3d at 1191). The court’s explanation for its major variance from
the guidelines range is not sufficiently compelling to support the
degree of the variance. See id. at 1196 (“Although there is no pro-
portionality principle in sentencing, a major variance does require
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18-11602 Opinion of the Court 95
a more significant justification than a minor one . . . .”). While
we review only for an abuse of discretion, our “review of the to-
tality of the circumstances in this case through the lens of abuse
of discretion yields the conclusion that [Bramwell’s probation]
sentence is substantively unreasonable.” Pugh, 515 F.3d at 1192.
We vacate and remand the part of the judgment involving
Bramwell’s sentence to the district court for further proceedings
consistent with this opinion. As we said in our Livesay decision,
“[n]ot only do we hold that the particular sentence imposed be-
low is unreasonable, but we also hold that any sentence of proba-
tion would be unreasonable given the magnitude and seriousness
of [Bramwell]’s criminal conduct.” 587 F.3d at 1279.
We are not holding that any downward variance would be
unreasonable. Nor are we specifying a particular custodial sen-
tence that would be reasonable. What we are holding is that giv-
en the totality of the facts and circumstances in this case, proba-
tion is not a reasonable sentence. A reasonable sentence in this
case should include, at the least, a non-token period of incarcera-
tion. See Hayes, 762 F.3d at 1311; Livesay, 587 F.3d at 1279; see
also Martin, 455 F.3d at 1237–42.
V. CONCLUSION
The judgments are AFFIRMED, except that the sentence
component of the judgment in Bramwell’s case is VACATED and
REMANDED for further proceedings consistent with this opin-
ion.
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96 Opinion of the Court 18-11602
AFFIRMED in part, VACATED and REMANDED in part.