NOT RECOMMENDED FOR PUBLICATION

File Name: 21a0068n.06

No. 19-6464

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

RAYMOND D. HUNTER,

Defendant-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

TENNESSEE

OPINION

BEFORE: BATCHELDER, STRANCH, and NALBANDIAN, Circuit Judges.

JANE B. STRANCH, Circuit Judge. Raymond D. Hunter is a person living with 

schizophrenia whose symptoms can be effectively treated with medication. In 2019, he was 

convicted of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). Hunter 

moved for a downward variance, citing his schizophrenia and its responsiveness to 

pharmaceutical treatment as a mitigating factor. The district court denied his motion and 

sentenced him to 78 months’ incarceration, in the middle of his Guidelines range. The Court

acknowledged that Hunter was unlikely to reoffend if he received treatment but then agreed with 

the Government that “the only way we know we can protect the public is to put him in jail.”

Hunter now challenges the procedural reasonableness of his sentence, arguing that the 

district court erred by relying on its prediction of the future symptoms of his schizophrenia to 

increase his sentence. We AFFIRM.
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I. BACKGROUND

A. Hunter’s Schizophrenia and Treatment

In 2008, when Hunter was in college, his schizophrenia began to manifest. He was 

diagnosed and obtained mental health treatment at a local hospital.

1

 Prior to the onset of his 

symptoms, Hunter was convicted of two misdemeanors, for possession of drug paraphernalia and 

driving on a revoked license, and received suspended sentences and small fines for both. But 

after his schizophrenia intensified, without medication, he was convicted of three robberies at 

businesses in Chattanooga beginning in 2013. In the first, he used what was presumably a BB 

gun to steal money and a car, but later returned valuable items that had not been in the car when 

it was recovered; in the second, he again used a presumed BB gun to steal money. In the third, 

which led to the arrest related to this case, he robbed two people of their cell phones at gunpoint

and then returned the phones after one chased and confronted him. In all three incidents, no one 

was hurt. At sentencing in this case, Hunter’s counsel described the third robbery as a “weird, 

weird scenario,” and the district court agreed that “there are some oddities about what [Hunter 

was] doing.”

In November 2017, Hunter was arrested for the third robbery and was detained pretrial in 

the Hamilton County Jail. Jail employees called the hospital’s crisis unit in April 2018 to attend 

to him. Two days later, Hunter was ordered committed for a mental evaluation and transported

to the Federal Medical Center. Forensic psychologists there diagnosed him with “Unspecified 

1 One common effect of schizophrenia is nonadherence to medication treatments. Dawn I. Velligan et al., Why Do 

Psychiatric Patients Stop Antipsychotic Medication? A Systematic Review of Reasons for Nonadherence to 

Medication in Patients with Serious Mental Illness, 11 Patient Preference & Adherence 449, 450–51 (2017) 

(reviewing 36 studies analyzing nonadherence, mostly “in patients with schizophrenia or schizophrenia-like 

disorders”). “Attitude toward medication is a complex and multidimensional variable.” Id. at 466; see also Peter M. 

Haddad et al., Nonadherence with Antipsychotic Medication in Schizophrenia: Challenges and Management 

Strategies, 5 Patient Related Outcome Measures 43, 49 (2014) (“Poor adherence cannot simply be regarded as 

‘difficult’ behavior . . . ; rather, it can result from a range of factors that encompass the illness, medication, and 

organization of services, plus attributes of the clinician, patient, and caregivers. As a result, improving adherence 

often requires a range of interventions.”).
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Schizophrenia Spectrum and Other Psychotic Disorder.” On the grounds the doctors identified, 

Hunter’s counsel and the Government jointly moved the district court to find Hunter incompetent 

to enter a plea or stand trial and to order him committed “for treatment for restoration to 

competency” under 18 U.S.C. § 4241(d). The district court granted the motion. Hunter then 

entered treatment at the FMC, where facility officials convened an administrative hearing and 

decided to commence medication.

Over the next two months, Hunter was regularly given medication. After the injections, 

“Hunter’s mental status improved significantly and was generally consistent for the remainder of 

the evaluation period.”2 Ultimately, the forensic psychologists diagnosed Hunter with 

schizophrenia “in full remission” as “currently treated with medication” and deemed him 

competent to understand the nature and consequences of the proceedings against him.

B. Proceedings in the District Court

Hunter was transported back to the Eastern District of Tennessee, where he entered a 

guilty plea on June 19, 2019. Prior to sentencing, the presentence report determined his 

Guidelines range to be 70 to 87 months’ incarceration; neither Hunter nor the Government 

disagreed. Hunter filed a motion asking the district court to vary downward from that range, 

contending that because Hunter’s schizophrenia drove his criminal conduct, the fact that its 

symptoms could be effectively treated by medication meant he was unlikely to reoffend. “[I]f 

Mr. Hunter does not seek medication and treatment upon release,” the motion stated, “he will 

almost surely reoffend.” But it also maintained that “no amount of jail time is going to ensure 

that” Hunter would voluntarily seek that treatment, and asserted that “[t]he best method of 

insuring medicine compliance is monitoring which can be done on supervised release.”

2 The effects of the medication typically take a week or two to appear and may take up to three months to achieve 

their full strength.
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At sentencing, Hunter summarized the motion’s arguments, and the district court 

reviewed the details of his prior convictions. The Government stated that it “certainly 

sympathize[d] with [Hunter’s] plight,” and that Hunter’s counsel “ma[de] some good points 

about medicated versus not medicated.” But, the Government continued, “[t]he problem is, 

when [Hunter is] not medicated, he’s a danger,” and “the only way we know we can protect the 

public is to put him in jail.” The Government then requested a sentence at the top of Hunter’s 

Guidelines range.

The district court sentenced Hunter to 78 months’ incarceration, explaining its reasoning 

as follows:

I have reviewed the documentation that . . . I’ve been provided in this case. I’ve 

looked at the motion . . . . I looked at the government’s response. I think you’re 

both right, I really do. I believe sincerely that . . . if we could somehow figure out 

the combination to have [Hunter] make better decisions about taking care of 

himself and his mental issues, that he wouldn’t be here today. But we haven’t

figured out how to do that. Even when he is incarcerated, it’s maybe not 

impossible, but it’s really difficult, even in incarceration, to get him to accept the 

treatment that doctors have provided for him.

So I’m stuck with a case in which I know Mr. Hunter wouldn’t probably 

do these things if he were more balanced and . . . thinking more clearly, but at the 

same time, . . . to say he’s intentional, it would be an understatement. He’s

intentional . . . about refusing to be treated, to receive treatment, to take this 

seriously.

And, honestly, all these factors -- I’ll go through them briefly in a minute, 

but I do believe it all comes down to protection of public, because that’s the only 

thing that I can see that I can change here or have much of an impact on. Mr. 

Hunter’s mental issues make me very pessimistic about having any real effect as 

far as specific deterrence. I don’t see a great value in general deterrence in this 

case.

. . . .

. . . And with regard to the nature and circumstances of this offense, I 

don’t disagree that this is worse than your average possession case; but, even so, it 

comes down to protection of the public. Mr. Hunter . . . does represent a danger 

to the community, to himself. And as his disease progresses without treatment, I 

have very, very strong fears that it’s only going to get worse for him and the 

people he comes in contact with. I believe that a [G]uidelines sentence is 
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appropriate, and will reflect the seriousness of this offense, provide for just 

punishment, and encourage respect for the law.3

After the district court pronounced its sentence, it posed a key question to the parties, but 

what exactly happened next is unclear from the transcript:4

Does either party have any objections to the sentence just pronounced . . . 

that you haven’t already raised?

[The Government]: No, sir.

THE COURT: Do you want to take a minute, [Hunter’s counsel], or . . .

DEPUTY UNITED STATES MARSHAL: Ready?

THE COURT: I need to advise him about his appeal rights.

DEPUTY UNITED STATES MARSHAL: Okay. Do his appeal rights.

THE COURT: Mr. Hunter, you need to listen to me.

After explaining Hunter’s right to appeal, the court asked the parties if there was “anything else 

we need to resolve in this case,” and both replied that there was not.

Hunter timely appealed the district court’s judgment.

II. ANALYSIS

A. Standard of Review

“Sentences must be both procedurally and substantively reasonable,” and we generally 

review a sentence’s reasonableness in both regards for abuse of discretion. United States v. 

Kamper, 748 F.3d 728, 739 (6th Cir. 2014); see also Gall v. United States, 552 U.S. 38 (2007). 

But when the district court asks what is known as the “Bostic question,” inviting objections to 

the sentence that were not previously raised, and the relevant party does not object, we review 

3 The district court referred as well to Hunter’s having “absconded . . . fairly recently” and to “other issues in his 

history that make me believe that a [G]uidelines sentence is the appropriate sentence.” It did not elaborate, though 

the former mention seems to allude to Hunter’s failing to report to the probation office after his first two robberies.

4 Hunter suggests that “it appears that some sort of commotion or other interruption occurred.”
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any procedural error committed during the sentencing itself for plain error instead.5 United 

States v. Simmons, 587 F.3d 348, 354 (6th Cir. 2009) (citing United States v. Bostic, 371 F.3d 

865, 872–73 (6th Cir. 2004)); United States v. Vonner, 516 F.3d 382, 390–91 (6th Cir. 2008) (en 

banc). “The point of the question is not to require counsel to repeat objections.” Vonner, 516 

F.3d at 390. Instead, it is meant “to give counsel one last chance to preserve objections for 

appeal that counsel has not yet seen fit to raise or has not yet had an opportunity to raise,” often 

“clarifications about the proposed sentence [the court] just announced.” Id.

Importantly, though, even when the district court asks the Bostic question, if counsel is 

not able to respond, neither “the requirements, nor the spirit, of Bostic” are satisfied. United 

States v. Caper, 571 F. App’x 456, 460 (6th Cir. 2014). We have typically emphasized this point 

when considering situations in which the district court cut off or otherwise prevented counsel 

from fully responding to the Bostic question. See, e.g., id. at 459–60; United States v. Williams, 

97 F. App’x 613, 614 (6th Cir. 2004). But the logic applies with equal force in any situation 

when counsel is rendered unable to answer; after all, Bostic itself speaks of a “meaningful 

opportunity to object.” 371 F.3d at 872, 873 n.6.

Here, the transcript shows that Hunter’s counsel had no chance to respond before the 

court moved on to explaining Hunter’s right to appeal. The court did then ask both parties if 

there was anything left to resolve, and Hunter’s counsel said there was not. True, Hunter’s 

counsel potentially could have renewed his objection, as described in the motion for variance 

previously filed with the court and in his earlier remarks at the hearing. But at the same time, the 

5 To establish that the district court committed plain error, Hunter would have to show that there was “(1) error (2) 

that was ‘obvious or clear,’ (3) that ‘affected [his] substantial rights[,]’ and (4) that ‘affected the fairness, integrity, 

or public reputation of the judicial proceedings.’” Vonner, 516 F.3d at 386 (quoting United States v. Gardiner, 463 

F.3d 445, 459 (6th Cir. 2006)).
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district court’s second, general question is precisely the kind that we have held does not alone 

satisfy Bostic. See United States v. Clark, 469 F.3d 568, 570–71 (6th Cir. 2006).

We can put this issue aside, however, because Hunter sufficiently stated the grounds for 

his objection to the sentence prior to the sentencing hearing in his motion for variance. Hunter

“does not argue that the district court committed procedural error by failing even to consider his 

arguments; such an objection must be preserved by an objection after the sentencing because it 

‘cannot be “preserved” in advance of a sentencing event that has yet to occur.’” Kamper, 

748 F.3d at 740 (quoting United States v. Lamb, 431 F. App’x 421, 424 (6th Cir. 2011)). Raising 

an issue both in a written filing before the sentencing hearing and during the hearing itself 

preserves the objection when the defendant is “objecting to the discretionary rejection of the 

request for a variance.” Lamb, 431 F. App’x at 424. Hunter did just that, so “[n]o explicit 

objection after the Bostic inquiry was required here because [he] had already argued and the 

district court had explicitly addressed the issue.” Kamper, 748 F.3d at 740. We have held that 

“it is unnecessary for a party to repeat previously made objections in order to secure the lower 

standard of review on appeal,” and that is so here. Simmons, 587 F.3d at 355; see also Vonner, 

516 F.3d at 390 (“[N]either the defense nor the government, in response to the Bostic question, 

has any obligation to raise objections already made.”).

Therefore, we review the district court’s judgment, including its decision to deny 

Hunter’s motion by not varying downward from the Guidelines range, for abuse of discretion. 

“An abuse of discretion occurs if the district court relies on clearly erroneous findings of fact, 

applies the wrong legal standard, misapplies the correct legal standard when reaching a 

conclusion, or makes a clear error of judgment.” Hicks v. State Farm Fire & Cas. Co., 965 F.3d 
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452, 457 (6th Cir. 2020) (quoting Zehentbauer Fam. Land, LP v. Chesapeake Expl., L.L.C., 935 

F.3d 496, 502 (6th Cir. 2019)).

B. Procedural Reasonableness

Next, the parties dispute whether Hunter is challenging the procedural or substantive 

reasonableness of his sentence. Hunter characterizes his arguments as addressing the former; the 

Government responds that by “faulting the district court for denying his motion for variance,” he 

is actually addressing the latter. We agree with Hunter: the core of his argument is that the 

district court primarily if not exclusively considered the possible future manifestations of his

schizophrenia and the potential of his nonadherence to medication when arriving at his sentence,

which Hunter maintains are impermissible factors.

6 This contention directly implicates 

procedural rather than substantive reasonableness.7See Gall, 552 U.S. at 51; United States v. 

Rayyan, 885 F.3d 436, 442 (6th Cir. 2018) (“The point [of substantive unreasonableness] is not 

that the district court failed to consider a factor or considered an inappropriate factor; that’s the 

job of procedural unreasonableness.”). And while we presume sentences within the Guidelines 

range to be substantively reasonable, no such presumption applies to their procedural 

reasonableness. United States v. Cabrera, 811 F.3d 801, 808 (6th Cir. 2016).

We “look[] to the entire context and record” when reviewing a district court’s sentencing 

determination. United States v. Madden, 515 F.3d 601, 612 (6th Cir. 2008). District courts may 

make “reasonable inferences” from the record but may not engage in “unreasonable 

speculation.” United States v. Parrish, 915 F.3d 1043, 1048 (6th Cir. 2019). “[A] district court 

6 The factors sentencing courts should consider are listed in 18 U.S.C. § 3553(a); “the nature and circumstances of 

the offense and the history and characteristics of the defendant” and “the need for the sentence imposed . . . to 

protect the public from further crimes of the defendant” are the most salient here.

7 We note, however, that our cases have not spoken with one voice on this question and that we have described it as 

“ripe for en banc review.” United States v. Fowler, 956 F.3d 431, 440 n.1 (6th Cir. 2020) (collecting cases). But see

United States v. Parrish, 915 F.3d 1043, 1047–48 (6th Cir. 2019) (stating that United States v. Cabrera, 811 F.3d 

801 (6th Cir. 2016), “settled the question” in favor of procedural reasonableness).
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abuses its discretion when it considers an impermissible factor in sentencing,” and if we 

determine that it has, “we must vacate and remand for resentencing.” United States v. Fowler, 

956 F.3d 431, 440 (6th Cir. 2020) (quoting United States v. Van, 541 F. App’x 592, 596 (6th Cir. 

2013)).

Congress and the Sentencing Commission have expressly addressed the import of mental 

disabilities at sentencing. In a policy statement, the Sentencing Guidelines provide that 

“[m]ental and emotional conditions may be relevant in determining whether a departure is 

warranted, if such conditions, individually or in combination with other offender characteristics, 

are present to an unusual degree and distinguish the case from the typical cases covered by the 

guidelines.” USSG § 5H1.3. “[A] downward departure may be appropriate to accomplish a 

specific treatment purpose.” Id. Meanwhile, “there exists a statute, 18 U.S.C. § 4246, directly 

designed to forestall [a person’s potential danger to the community] through continued 

commitment after completion of the sentence.” United States v. Moses, 106 F.3d 1273, 1280 

(6th Cir. 1997). Instituting commitment proceedings stays the person’s release pending a 

hearing and decision, and if the court finds by clear and convincing evidence that the person 

continues to pose a danger, the statute provides for continued confinement or conditional release

(including with a requirement to continue taking medication). Id. at 1276, 1280. Companion 

statutes allow for commitment to a mental health facility in place of incarceration or transfer 

from a prison to a mental health facility during the prison sentence. 18 U.S.C. §§ 4244–4245. 

Meanwhile, sentencing courts are directed to “recogniz[e] that imprisonment is not an 

appropriate means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a).

In light of these provisions, we have previously addressed the permissible ways in which 

sentencing courts may consider mental disabilities. In United States v. Owen, 940 F.3d 308, 317
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(6th Cir. 2019), for instance, we stated that “[w]hile a district court should, in the sentencing 

context, give consideration to a defendant’s mental illness, the court is not required to grant a 

defendant’s motion for a downward variance whenever a defendant suffers from such an illness.” 

We held in Moses that “under the relevant statutes and guidelines, the appropriate mechanism of 

public protection is a commitment proceeding under § 4246, rather than an extended criminal 

sentence.” 106 F.3d at 1281. Moses involved an upward departure based on a finding of 

“extraordinary danger to the community” posed by the defendant’s schizophrenia and his “need 

for psychiatric treatment,” and we have at times distinguished it on that basis. 106 F.3d at 1280; 

see United States v. Tolbert, 459 F. App’x 541, 547–48 (6th Cir. 2012).

Of our cases, Tolbert presents the closest analogue to this one. There, we addressed the 

matter of mental disability as an issue of substantive reasonableness, as Tolbert presented it that 

way. Tolbert, 459 F. App’x at 547–48. In a similar but not identical manner to Hunter, 

Tolbert—who the district court described as “suffer[ing] from depression, bipolar disorder, and 

other conditions that may make him more likely to act irrational[ly]”—argued that “his mental 

illness and violent propensities [were] so inseparably intertwined that when the district court 

justified its denial of his motion for a downward variance based on the need to protect the public, 

this was actually a decision to impose a greater sentence because of his mental health issues.” 

Id. at 544, 547. Without extensive analysis, we stated that because Tolbert, unlike Moses, was 

neither “sentenced subject to an upward departure” nor “otherwise eligible to be released,” 

Moses was “inapplicable.” Id. at 548. So, when the district court treated Tolbert’s mental 

disability as a mitigating factor and balanced it with the need to protect the public, it acted 

appropriately in determining that the latter “was paramount.” Id. In similar cases, also analyzing 

substantive reasonableness, we have applied Tolbert’s reasoning. Owen, 940 F.3d at 317–18; 
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United States v. Goode, No. 19-4169, --- F. App’x ----, 2020 WL 6821694, at *2 (6th Cir. Nov. 

20, 2020).

Section 3553(a), by requiring courts to consider “the nature and circumstances of the 

offense and the history and characteristics of the defendant,” permits consideration of the 

connection between a particular mental disability and criminal conduct. USSG § 5H1.3 does the 

same. When a defendant presents evidence that he lives with a mental disability, the court may 

consider that evidence to the extent that it is relevant, just like any other type of evidence. But at 

the same time, the fact that Hunter was sentenced within his Guidelines range matters: Moses

was specifically discussing the application of an upward departure under USSG § 5K2.14 when 

it prohibited “focusing on [the defendant’s] future dangerousness” potentially resulting from his 

mental disability. Moses, 106 F.3d at 1278–79; see Tolbert, 459 F. App’x at 548. That is not the 

case here. And while we have described Moses as generally “prohibit[ing] the extension of a 

defendant’s sentence based on the need for treatment for mental illness, even if that mental 

illness creates a potential danger of violent behavior,” United States v. Arnold, 630 F. App’x 

432, 438 (6th Cir. 2015), that blanket rule—though perhaps reasonable—is not Moses’s holding.8

Here, the district court did not engage in unreasonable speculation, and so did not abuse 

its discretion, by inferring from the record that Hunter’s treatment nonadherence could be likely 

to recur. See Parrish, 915 F.3d at 1048. While potential of future dangerous behavior linked to 

mental disability cannot alone justify an upward departure, see Moses, 106 F.3d at 1278–79, the 

district court could take its view of that potential into account as a factor in its consideration of 

the sentence, including the motion for a downward variance. It is relevant to “the nature and 

circumstances of the offense,” “the history and characteristics of the defendant,” and the need to 

8 Arnold itself also involved an upward departure based on the need for treatment and so was a direct application of 

Moses in that respect. 630 F. App’x at 437–38.
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“protect the public.” 18 U.S.C. § 3553(a). “Judges are not pharmacists or doctors,” United 

States v. Savinon-Acosta, 232 F.3d 265, 268 (1st Cir. 2000), and so Hunter’s point—that the 

district court’s conclusion about his potential nonadherence to treatment is speculative—is welltaken. But that does not render the conclusion impermissible altogether, see Fowler, 956 F.3d at 

440, or ultimately represent an application of the wrong legal standard, a misapplication of the 

right one, or a clear error of judgment, see Hicks, 965 F.3d at 457.

III. CONCLUSION

This decision walks a fine line: while a district court sentences a defendant for his 

criminal conduct, not “because of his mental illness,” United States v. Organek, 65 F.3d 60, 62 

(6th Cir. 1995), a sentence may not punish a person merely for living with a mental disability. 

See generally Robinson v. California, 370 U.S. 660, 666–67 (1962) (holding that states cannot

criminalize the “status” of substance addiction, just as they could not “make it a criminal offense 

for a person to be mentally ill”). This distinction is important as a matter of both principle and 

realism: disparities in access to and availability of mental healthcare are well documented. See, 

e.g., Tammeka Swinson Evans et al., U.S. Dep’t of Health & Hum. Servs., Disparities within 

Serious Mental Illness (2016), https://www.ncbi.nlm.nih.gov/books/NBK368427/. Finally, in 

the context of determining sentences in cases like this one, district courts, the Government, and 

defendants alike must also recognize and appropriately apply statutory procedures that can lessen 

or even obviate any need to consider nonadherence to treatment. See 18 U.S.C. § 4246.

Based on the record and for the reasons discussed above, we AFFIRM Hunter’s 

sentence.