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

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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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18-11602 Opinion of the Court 59

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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18-11602 Opinion of the Court 61

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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18-11602 Opinion of the Court 63

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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18-11602 Opinion of the Court 71

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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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 pre

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