February 17, 2017
from the United States District Court for the Southern
District of Indiana, Indianapolis Division. No.
l:14-cr-00089-RLY-DML - Richard L. Young, Judge.
Wood, Chief Judge, and Bauer and Posner, Circuit Judges.
Rothbard pleaded guilty to one count of wire fraud in
connection with his participation in a scheme to defraud
companies that were interested in obtaining loans for
environmentally friendly upgrades to their facilities. He
committed this offense, which yielded more than $200, 000 for
him, while he was on probation for a felony forgery
conviction in Indiana. The district court sentenced him to 24
months' imprisonment, despite the fact that Rothbard is
an older man with serious health problems and the Probation
Office thought that incarceration was not necessary. On
appeal, Rothbard urges us to find that his sentence is
substantively unreasonable, both because he has stayed out of
trouble for nearly three years and because he fears that the
Bureau of Prisons (BOP) may be unable to furnish the
medication on which his health critically depends.
had we been the sentencing judges, we would have accepted his
arguments. But the district court here gave sound reasons for
its chosen sentence. In addition, both the evidence in the
record before the district court, and supplemental
information that we requested about BOP's ability to
provide appropriate care, satisfy us that the nominal
24-month sentence will not, in reality, spell doom for
Rothbard. We therefore affirm the district court's
offenses date back to at least 2010, when he installed some
check designer programs on an office computer and used them
to forge two checks, amounting to $7, 700, to his wife. He
was convicted in state court for that offense and placed on
probation. While on probation, he launched the scheme that
underlies his present conviction. When all was said and done,
he had defrauded 17 victims of $211, 658.53, acting as the
registered agent of "GreenCity Finance." The scheme
was relatively simple: GreenCity would purport to arrange for
financing for energy savings upgrades, but it would require a
deposit to process the loan. The clients paid the deposits,
but the money went straight to Rothbard's pocket. He used
it on personal items, including to attend a PGA golf
tournament and to buy his son a vehicle. Ultimately he was
caught and charged with wire fraud in violation of 18 U.S.C.
§ 1343; he waived indictment and pleaded guilty. His
appeal pertains exclusively to his sentence.
fact behind Rothbard's sentencing challenge relates to
his health. In 2005, well before the time he instituted the
GreenCity scheme, he was diagnosed with imatinib-resistent
chronic myeloid leukemia-a particularly virulent form of that
cancer. His doctor, Larry Cripe, prescribed the drug
nilotinib, which is one of three possible drugs recognized
for the treatment of Rothbard's type of leukemia. All
three are extremely expensive: the Journal of Clinical
Oncology reported in 2013 that the annual price of nilotinib
is $115, 000 to $124, 000; the price of the other two drugs,
dasatinib and ponatinib, appears to be comparable. Hagop M.
Kantarjian et al., Cancer Drugs in the United
States: Justum Pretium - The Just Price, 31 J.
Clinical Oncology 3600, 3601 (2013).
sentencing, the Probation office prepared its usual
Presentence Investigation Report (PSR), in which it
calculated an adjusted offense level of 16 and a criminal
history of II, which translates into a range of 24 to 30
months' imprisonment. Because of Rothbard's health,
however, Probation recommended a more lenient sentence: 12
months' detention at a halfway house and another 12
months' home confinement, in lieu of prison. It suggested
that this would offer adequate deterrence and would assure
that Rothbard's medical needs were properly met.
Probation then revised the recommendation to three years'
probation, noting that although Rothbard seemed to need a
harsher penalty to deter future criminal behavior (because he
had committed the fraud while on probation), it seemed unfair
to burden the taxpayers with the exorbitant cost of
Rothbard's medication in prison.
filed a pre-sentencing memorandum in which he urged that a
custodial sentence would be unreasonable, because (he
asserted) BOP could not guarantee that he would
receive the medical care he needed in one of its facilities.
The reason for the lack of a guarantee relates to the way in
which BOP manages prescription drugs. It maintains a
formulary of drugs that its physicians are permitted to
prescribe without further ado. That does not mean, however,
that non-formulary drugs are impossible to obtain. To the
contrary, if a doctor believes that a patient needs a
non-formulary drug, the doctor may prescribe it by following
primarily on the nature of Rothbard's crime and the fact
that he committed it while on probation, the district court
rejected Probation's recommendations and imposed a
Guidelines sentence of 24 months in the custody of BOP,
followed by two years' supervised release. In so doing,
it did not ignore Rothbard's medical situation. It took
into account a letter that the government had obtained from
Dr. Paul Harvey, the Regional Medical Director for BOP's
North Central Region. Dr. Harvey reviewed Rothbard's
records and a letter from Dr. Cripe, and offered these
CARE Level 4 inmates require services available at a Medical
Referral Center (MRC) and may require daily nursing care. The
MRC facilities have clinical staff available in-house,
24-hours per day, and have contracts with community
specialists for additional review and/or care, if clinically