Eleventh Circuit Rules Probation Sentence “Clear Error of Judgment” for Tricare Fraudster
Last Monday, the Eleventh Circuit ruled that the Middle District of Florida’s sentence of probation for former physician Nicole Bramwell in a $4.4 million Tricare fraud case was substantively unreasonable. The district court’s original sentence of probation, with one year to be served in home detention, was a significant downward departure from the guideline range of 78 to 97 months in prison for her offenses. Both the original sentence of probation and the appellate reversal are notable—neither are common occurrences.
Bramwell went to trial with two other defendants charged with a kickback scheme that involved Bramwell writing prescriptions for costly compounded creams, which were filled by another defendant’s pharmacy. The third defendant recruited patients for the scheme. The trial lasted five days and the jury verdict was returned in four hours. Although both other defendants received multi-year prison sentences, Bramwell received only probation, despite an adjusted loss amount of $3.5 million adding 18 levels to the guideline calculation, and two additional levels for abuse of trust in her position as a physician. While the district court acknowledged that the government made a “very compelling” argument for a sentence in the guideline range, the district court departed downward to probation because of Bramwell’s lack of criminal history, contrition, support of character witnesses, and other factors. This sentence, the Eleventh Circuit found, was a “clear error of judgment.”
Sentences must be reasonable, and the sentencing court must consider certain statutory factors and weigh those factors reasonably. Bramwell could not be both the “driving force” of a “serious crime” and the beneficiary of probation. The criminal conduct lasted more than one year and resulted in a substantial loss to Tricare.
This case and the Eleventh Circuit’s ruling regarding Bramwell’s sentence are instructive for several reasons. First, health care fraud continues to be a priority for the government. Second, individuals involved in health care fraud will be prosecuted and punished. Third, white collar sentences will likely include prison time when the conduct is repetitive and the dollar loss substantial. Fourth, a victory at sentencing may not be the end of the road—circuit courts will examine probationary sentences for reasonableness, especially when the probation sentence is a significant downward departure from the guidelines range.