In United States v. Howard, Case No. 18-11602 (Mar. 7, 2022) (Branch, Luck, Ed Carnes), the Court affirmed in part, and vacated and remanded in part, a case involving Tricare, a government program that provides health care insurance benefits for active and retired members of the military and their families.

This case involved the actions of Nicole Bramwell, a physician, Larry Howard, a pharmacist, and Raymond Stone, a retired Navy veteran.  They were convicted of crimes involving the millions of dollars Tricare paid Howard for filling compounded cream prescriptions for patients.  Bramwell wrote the prescriptions and Stone helped to recruit patients.  All three were convicted for paying or receiving kickbacks and conspiring to do so, in violation of 18 U.S.C. § 371, 42 U.S.C. § 1320a-7b(b)(1)(A), and 42 U.S.C. § 1320a-7b(b)(2)(A).  Howard was also convicted of laundering some of the proceeds, in violation of 18 U.S.C. § 1957.  Howard was sentenced to 160 months in prison; Stone to 24 months in prison; and Bramwell to 36 months of probation, with one year to be served in home detention.

All three challenge their convictions based on the sufficiency of the evidence.  Howard also contends that the government constructively amended his indictment.  The government cross-appealed, contending that Bramwell’s sentence was unreasonably lenient.

As to the sufficiency of the evidence challenges, the Court first noted that it did not matter whether the prescriptions involved were legitimate or medically necessary or good or bad for the patients, because the substantive kickback convictions were based entirely on whether there were kickbacks paid.  Additionally, the conspiracy convictions could be sustained based solely upon evidence sufficient to support the kickback conspiracy without regard to any evidence of fraud.  The Court also reaffirmed that in a case alleging multiple objects of the conspiracy, only one of those objects needs to be proven to support the conspiracy conviction.  With that in mind, the Court found the evidence sufficient to support all convictions.

As to the constructive amendment argument, Count 4 charged Howard with paying one $5000 kickback to Bramwell on a specific date, but the government presented evidence that he wrote two different $5000 checks to her on that date.  Howard argued that the evidence presented at trial constructively amended the indictment.  The Court disagreed.  Evidence that there were two $5000 checks did not alter the essential elements of the offense charged because the amount of the kickback paid was not an element of the offense.

As to the government’s cross-appeal of Bramwell’s sentence of probation, the Court agreed with the government that the sentence was substantively unreasonable.  The PSI calculated an advisory Guidelines’ range of 78 to 97 months imprisonment for Bramwell.  But at sentencing, the district court characterized Bramwell as something of a victim of Howard, and after extensively considering the § 3553 factors, varied downwards to zero months imprisonment.  In reversing the district court, the Court found that the district court had abused its discretion in three ways–failing to afford consideration to relevant factors (seriousness of the offense, the need to promote respect for the law, the need to provide just punishment for the offense, and general deterrence); giving significant weight to an improper factor (loss of professional license, convicted felon status, and the temptation and opportunity to commit the crime); and committing a clear error of judgment in considering proper factors and the weight they were due.  The Court did not find the district court’s explanation for its variance sufficiently compelling to support the degree of variance.  As such, the Court vacated and remanded the part of the judgment involving Bramwell’s sentence to the district court for further proceedings, with instructions that a sentence of probation is unreasonable.

***The Court engaged in an extensive discussion of sentencing and when a sentence may be substantively unreasonable.  Though its analysis resulted in a reversal of too-lenient sentence here, the language/analysis might be useful for the challenges we make to sentences moving forward.***