In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 16-3996

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JEFFREY ROTHBARD,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:14-cr-00089-RLY-DML—Richard L. Young, Judge.

____________________

ARGUED FEBRUARY 17, 2017 — DECIDED MARCH 17, 2017

____________________

Before WOOD, Chief Judge, and BAUER and POSNER, Circuit 

Judges.

WOOD, Chief Judge. Jeffrey 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 
2 No. 16-3996

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. 

Perhaps, 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 judgment.

I

Rothbard’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 
No. 16-3996 3

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.

II

The key 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).

Before 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 be-
4 No. 16-3996

havior (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.

Rothbard 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 certain procedures. 

Based 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 comments: 

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 necessary. The BOP has 
No. 16-3996 5

six Medical Referral Centers [including] Butner, North 

Carolina.

Rothbard was later designated to Butner, although it appears 

that he will need a re-designation after this appeal is resolved.

Dr. Harvey’s answer to the question whether Rothbard 

would be able to continue with his successful course of nilotinib was a qualified “yes.” He conceded that nilotinib is not 

on the National Drug Formulary, but he said that BOP permits 

a medical provider to “submit a non-Formulary request and 

prescribe the requested medication pending approval of the 

request.” He also noted that an expedited approval process 

exists, and when it is used, a decision on the request is generally made within 24 hours. (The need for such approval is the 

reason we describe the “yes” as qualified.) Finally, Dr. Harvey

said that nilotinib had been “approved for inmates with medical conditions similar to Mr. Rothbard’s.” 

The district court considered Rothbard’s leukemia as it 

considered what sentence to impose, but it was unpersuaded 

that Rothbard’s medical condition justified a noncustodial 

sentence. It relied on Dr. Harvey’s representation that BOP 

could provide whatever care was necessary. Turning to the 

other side of the balance, it noted several facts that pointed 

toward a sentence including imprisonment. Calling Rothbard’s scheme a “crime of pure greed,” the court referred to 

the need to protect the public and the fact that Rothbard had 

brazenly committed this crime while on probation for the forgery offense. The judge commented that the crime was sufficiently troublesome, in his view, that he “never really seriously considered probation.” Instead, he opted to accommodate Rothbard’s medical needs by “point[ing] out to the Bureau of Prisons that the defendant does have leukemia that’s 
6 No. 16-3996

in remission by medication and request[ing] that the Bureau 

of Prisons take special note of that medication and make sure 

that he receives that medication for treatment of that condition so that it remains in remission.” 

Because of the grave nature of his medical condition and 

the risk that a deprivation of nilotinib might cause a serious 

recurrence of his disease, Rothbard moved for a stay of his 

report date pending his appeal in this court. The district court 

denied the stay, but this court granted it and expedited the 

appeal. In addition, because we were unsure how effectively 

the procedures described by Dr. Harvey operate, we ordered 

the parties to provide additional information about what 

Rothbard might expect if he were to go to a BOP facility. It is 

unusual, we concede, to supplement the record on appeal on 

such a critical point, but the stakes are high, and so we 

thought this step was justified.

When a new inmate shows up at BOP, the inmate goes 

through a comprehensive medication review as part of his intake screening. For purposes of continuity of care, the government represents, BOP policy allows for the continuation of 

most medications—including non-formulary drugs—for a 

period of time pending review and approval of anything that 

is not on the Formulary. Rothbard appears to agree with that, 

in part. He presents an updated affidavit from Philip Wise, 

the former Assistant Director of BOP with responsibility for 

health care. (This too is new on appeal; we grant Rothbard’s 

February 8, 2017, motion to supplement the record with 

Wise’s Declaration.) Wise states that non-formulary drugs 

may be continued for four days upon arrival. After that, according to Wise, there are no guarantees. Relying on this, 
No. 16-3996 7

Rothbard argues that this means for him that there is no assurance that he will be able to continue with his nilotinib after 

the four-day period expires. The government responds that 

Wise himself concedes that BOP has the ability to process urgent requests within hours, if medically necessary. It also reports that there have been ten requests for nilotinib since 2010, 

and all ten requests have been approved for the same condition as Rothbard has. 

We were also interested in the qualifications of the people 

who are responsible for these approvals. The government informs us that approval authority resides with a Central Office 

Physician, and that the final decision over non-formulary 

drug requests is made by either a pharmacist or a physician. 

Wise wrote that when he was in charge, denials were based 

on one of two possible reasons: either the requested drug was 

not medically necessary, or that there was a therapeutic equivalent medication available on the formulary. In this case, the 

government does not argue that either of those reasons would 

apply. 

One might worry that BOP would have an incentive to be 

sparing with its orders for particularly expensive non-formulary drugs, such as nilotinib. There is no evidence, however, 

that it has done so, and in Rothbard’s case, there is less reason 

to fear a secret economic motive. Rothbard’s health care is already being billed to the public, because he is using government-provided health insurance. More importantly, the record shows that BOP has ordered nilotinib itself on ten other 

occasions, evidently in recognition of the fact that it might be 

essential (as it apparently is for Rothbard). Indeed, the high 

price of nilotinib suggests that it has no adequate substitutes: 

whether it is being used for prisoners or the public at large, a 
8 No. 16-3996

drug that faces several therapeutic alternatives in the market 

will not command as high a price. 

In the final analysis, this case boils down to the fact that 

BOP is not willing or able to pre-commit to nilotinib for Rothbard, before he has gone through the intake examination at 

the prison medical center. Although it might be sensible in 

cases such as this one for BOP to have some way of examining 

people before they report, that is not its practice and we are 

not persuaded that the lack of a pre-report examination is independently actionable. In addition, we cannot find fault with 

BOP’s reservation of the right to conduct its own medical examination. While Rothbard’s case might be an easy one, there 

will be other entering inmates who are subjectively convinced 

that they need one particular medication, but for whom an 

alternative or more conservative treatment may be medically 

acceptable. BOP would be acting irresponsibly if it did not 

make an independent decision, based on a thorough and professional examination of the new inmate and his medical history. 

III

We conclude that this is not a case in which the only substantively reasonable sentence would have been one that kept 

Rothbard out of prison. The district court was faced with evidence supporting a noncustodial punishment—Rothbard’s 

trouble-free record for the last several years, and the assurance of continuity of his successful treatment at the hands of 

Dr. Cripe—as well as evidence supporting some time in 

prison—the nature of his crime, the fact that he committed it 

while on probation, and the factual finding that BOP would 

be able to serve his medical needs. We find no clear error in 

any of those findings of fact. And with this much established, 
No. 16-3996 9

we have no reason to find Rothbard’s sentence of 24 months 

(which fell within the recommended Guidelines range) substantively unreasonable.

We close, however, with a caveat. If Rothbard shows up at 

a BOP facility and discovers that the responsible people are 

dragging their feet in a way that deprives him for any significant time of his nilotinib, or if the BOP evaluator (contrary to 

all of the evidence we have seen) takes the position that a 

medically suitable alternative from the formulary exists, 

Rothbard is free to use the BOP’s grievance procedures to 

complain about any such problem. On that understanding, 

we AFFIRM the judgment of the district court. 
10 No. 16-3996

POSNER, Circuit Judge, dissenting. The defendant pleaded 

guilty to wire fraud in violation of 18 U.S.C. § 1343. The 

district judge sentenced him to 24 months in federal prison 

and also ordered him to pay restitution to the victims of the 

fraud—but that aspect of the sentence is not involved in his 

appeal. Because of the defendant’s very poor health—he 

suffers from a rare form of leukemia (called imatinibresistant chronic myelogenous leukemia), compounded by 

bipolar disorder with manic episodes, chronic arthritis, 

hypertension, and asthma—the probation service had 

recommended that the judge impose in lieu of a prison 

sentence a sentence of 3 years’ probation, including 12 

months of home confinement and 12 months of confinement 

in a halfway house, because it would be easier to provide for 

his medical needs in such locations. He is not violent; he was 

on pretrial release for two and a half years after his arrest 

and committed no crimes during that period.

In appealing the judge’s sentence he argues that the 

Bureau of Prisons can’t guarantee that he will receive 

adequate medical attention in a prison. He is right. The drug 

that he’s been receiving for his leukemia is called nilotinib 

(trade name Tasigna). It is very expensive—more than 

$100,000 for a year of treatment. Perhaps because of its cost, 

it is not currently listed on the National Drug Formulary of 

the Bureau of Prisons. (A drug formulary is a list of 

prescription drugs that is used by practitioners to identify 

drugs that offer the greatest overall value.) The Bureau has 

sometimes provided nilotinib for prisoners suffering from 

ailments such as the kind of leukemia that the defendant 

suffers from, but it has refused to commit to providing it to 

this defendant. A letter sent by a doctor employed by the 
No. 16-3996 11

Bureau to one of the prosecutors in the case states that 

“while nilotinib is not included in the National Formulary, 

this medication has been approved for inmates with medical 

conditions similar to Mr. Rothbard’s.” But how similar the 

other inmates’ conditions are to Rothbard’s—whether for 

example they require as frequent dosages of nilotinib as he 

does—is nowhere indicated. In addition the Bureau has 

refused to allow the defendant’s need for the drug to be 

determined by a medical examination prior to his 

imprisonment, even though the results of such an 

examination might both vindicate the probation service’s 

recommendation for nonprison confinement and resolve the 

question of his need to continue taking nilotinib.

The defendant’s bipolar disorder with manic episodes 

(bipolar disorder used to be called manic depression) should 

also be examined before he’s imprisoned, because it’s a 

disorder that might be difficult to treat effectively in a prison 

without placing the defendant in a cell by himself (perhaps 

even solitary confinement), as manic episodes might upset 

and alarm cellmates and even prison staff, though it is now 

believed that solitary confinement is detrimental to a 

prisoner’s mental health. See, e.g., PBS Frontline, “What Does 

Solitary Confinement Do To Your Mind?,” www.pbs.org/

wgbh/frontline/article/what-does-solitary-confinement-doto-your-mind/ (visited March 17, 2017, as were the other 

websites cited in this opinion).

Essentially the prosecution, the district court, and now 

my colleagues, ask that the Bureau of Prisons be trusted to 

give the defendant, in a federal prison, the medical 

treatment that he needs for his ailments. Yet it is apparent 

from the extensive literature on the medical staff and 
12 No. 16-3996

procedures of the Bureau of Prisons (a literature ignored by 

my colleagues) that the Bureau cannot be trusted to provide 

adequate care to the defendant. The defendant’s expert, 

Phillip Wise, who has extensive experience with the medical 

care provided to federal prisoners—he has served as the 

Assistant Director of the Federal Bureau of Prisons, with 

responsibility for health care, as the Warden of the Federal 

Medical Center (a Bureau of Prisons facility) in Rochester, 

Minnesota, and as the vice president of a company that 

provides medical care to federal prisoners—tells us “there is 

no assurance that nilotinib will, in fact, be provided for Mr. 

Rothbard,” and the fact “that nilotinib has been approved 

for some inmates in the past is not an assurance that it will 

be provided for Mr. Rothbard without some delay as the 

request is evaluated or some other medication is tried first.” 

Wise also points to “the very real difficulty the BOP has in 

recruiting and maintaining medical staff for its facilities,” 

which he says “may lead to delays in care as well as 

provision of essential medical care by lower level medical 

staff.”

A national survey of inmates in federal, state, and local 

prisons found that “among inmates with a persistent 

medical problem, 13.9% of federal inmates, 20.1% of state 

inmates, and 68.4% of local jail inmates had received no 

medical examination since incarceration. More than [20 

percent of] inmates were taking a prescription medication ... 

when they entered prison or jail; of these, 7232 federal 

inmates (26.3%), 80,971 state inmates (28.9%), and 58,991 

local jail inmates (41.8%) stopped the medication following 

incarceration. Prior to incarceration slightly more than [14 

percent of] inmates were taking a prescription medication 

for an active medical problem routinely requiring 
No. 16-3996 13

medication ... . Of these, 20.9% of federal inmates, 24.3% of 

state inmates, and 36.5% of local jail inmates stopped the 

medication following incarceration. Andrew P. Wilper, et al., 

“The Health and Health Care of US Prisoners: Results of a 

Nationwide Survey,” 99 Am. J. Public Health 666, 669 (2009), 

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2661478/. 

The authors conclude that “many inmates with a serious 

chronic physical illness fail to receive care while 

incarcerated.” Id. at 666.

These problems have been documented by federal 

agencies. A 2016 report by the Justice Department’s Office of 

the Inspector General on the BOP’s medical staffing 

concluded—echoing Wise’s concerns—that “recruitment of 

medical professionals is one of the BOP’s greatest challenges 

and staffing shortages limit inmate access to medical care, 

result in an increased need to send inmates outside the 

institution for medical care, and contribute to increases in 

medical costs,” and that “recruitment and retention of 

medical professionals is a serious challenge for the BOP, in 

large part because the BOP competes with private employers 

that offer higher pay and benefits. We further found that the 

BOP has not proactively identified and addressed its 

medical recruiting challenges in a systemic way. Rather, it 

has attempted in an uncoordinated fashion to react to local 

factors influencing medical recruiting at individual 

institutions.” Office of the Inspector General, U.S. 

Department of Justice, “Review of the Federal Bureau of 

Prisons’ Medical Staffing Challenges,” pp. i–ii, March 2016, 

https://oig.justice.gov/reports/2016/e1602.pdf.

A 2008 report by the same office on medical care in the 

BOP concluded that “each of the BOP institutions we tested 
14 No. 16-3996

did not always provide recommended preventive health 

care to inmates. Our audit found that for almost half of the 

preventive health services we tested, more than 10 percent of 

the sampled inmates did not receive the medical service. ... 

The BOP (1) did not develop agency-wide guidance to 

correct apparent systemic problems found during medicalrelated internal reviews and external audits; (2) did not 

provide health care providers with current authorization to 

practice medicine on BOP inmates through privileges, 

practice agreements, or protocols; (3) had not performed 

required initial and renewal peer reviews for providers; and 

(4) had not implemented an effective performance 

measurement system related to the provision of health care 

at BOP institutions.” Office of the Inspector General, U.S. 

Department of Justice, “The Federal Bureau of Prisons’ 

Efforts to Manage Inmate Health Care,” p. iii, Feb. 2008, 

https://www.oig.justice.gov/reports/BOP/a0808/final.pdf.

These are long-standing problems. A GAO report on 

health care in the BOP, published in 1994, concluded that 

“inmates with special needs, including women, psychiatric 

patients, and patients with chronic illnesses, were not 

receiving all of the health care they needed at the three 

medical referral centers we visited. This situation was 

occurring because there were insufficient numbers of 

physician and nursing staff to perform required clinical and 

other related tasks. ... As a result, some patients’ conditions 

were not improving and others were at risk of serious 

deterioration.” U.S. General Accounting Office, “Bureau of 

Prisons Health Care: Inmates’ Access to Health Care is 

Limited by Lack of Clinical Staff,” p. 2, Feb. 1994, www.gao.

gov/assets/220/219296.pdf.
No. 16-3996 15

The problems of BOP health care may soon become even 

more serious, given the decision by the new Attorney 

General, Jeff Sessions, to continue confining some federal 

prisoners in privately owned prisons. See Eric Tucker, “U.S. 

will continue use of privately run prisons, Attorney General 

says,” Feb. 23, 2017, PBS Newshour, The Rundown, www.

pbs.org/newshour/rundown/u-s-will-continue-use-privatelyrun-prisons-attorney-general-says/. The bad reputation of 

those prisons had caused the previous Administration to 

begin phasing out confinement of federal prisoners in them. 

See Memorandum from Sally Q. Yates, Deputy Attorney 

General, to the Acting Director, Federal Bureau of Prisons 

(Aug. 18, 2016), www.justice.gov/archives/opa/file/886311/

download; Office of the Inspector General, U.S. Department 

of Justice, “Review of the Federal Bureau of Prisons’ 

Monitoring of Contract Prisons,” Aug. 2016, https://

oig.justice.gov/reports/2016/e1606.pdf.

I am mindful that if Rothbard is denied nilotinib in 

prison he can invoke the BOP’s grievance process. But how 

long will that take? We’re not told, and Dr. Cripe, 

Rothbard’s physician, warns that any “prolonged 

interruption” in Rothbard’s access to nilotinib will endanger 

his health.

To conclude, my inclination would be to reverse the 

judgment of the district court with directions to impose the 

sentence recommended by the probation service. But I 

would be content to reverse and remand with instructions 

that the district judge appoint neutral expert witnesses 

drawn both from the medical profession and from academic 

analysis of prison practices and conditions, with particular 

emphasis on the federal prison system, and that the judge 
16 No. 16-3996

reconsider his sentence in light of evidence presented by 

these witnesses as well as any witnesses that the government 

or the defendant may care to call.

What is clear is that Jeffrey Rothbard is entitled to a more 

informed and compassionate judicial response to his 

physical and mental illnesses than he has received from the 

district court and this court.