November 2, 2018
from the United States District Court for the Eastern
District of Wisconsin. No. l:17-cr-00136-WCG-l - William C.
Griesbach, Chief Judge.
Ripple, Kanne, and Rovner, Circuit Judges.
RIPPLE, CIRCUIT JUDGE.
Schmidt and his girlfriend were camping in a national forest
in Wisconsin when a United States Forest Service Officer
approached their campsite. The officer discovered that Mr.
Schmidt, who had three prior felony convictions, had a
handgun in his tent. A grand jury indicted Mr. Schmidt for,
and he pleaded guilty to, one count of possession of a
firearm as a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1). During a presentence interview with his
probation officer, Mr. Schmidt communicated to the officer
his belief in white supremacy, his hatred for minority races,
and his desire to return to Germany to embrace his Nazi
roots. At sentencing, the district court determined that Mr.
Schmidt's white supremacist beliefs were evidence of his
likelihood of future dangerousness and his lack of respect
for the law. The district court sentenced Mr. Schmidt to 48
months' imprisonment, followed by three years of
supervised release. Mr. Schmidt now contends that the district
court violated his First Amendment rights when it considered
his white supremacist beliefs at his sentencing. Because Mr.
Schmidt's beliefs were relevant to legitimate sentencing
considerations, we affirm the judgment of the district
29, 2017, Mr. Schmidt and his girlfriend were camping in the
Chequamegon-Nicolet National Forest in Forest County,
Wisconsin. When U.S. Forest Service Officer Charles Brooks
approached their campsite, he noticed a quantity of freshly
cut logs on a trailer. Because chopping and removing live
trees from a national forest without a permit are federal
offenses, see 18 U.S.C. §§ 1852 and 1853,
Officer Brooks prepared to issue a citation. He also observed
that Mr. Schmidt was wearing a holster for a handgun attached
to his belt, and Mr. Schmidt acknowledged that there was a
gun in his tent. Officer Brooks contacted the Sheriff's
Department and discovered that Mr. Schmidt had three prior
felony convictions. When questioned by the officer, Mr.
Schmidt admitted that he was a convicted felon, but contended
that the gun and the pants he was wearing belonged to his
girlfriend. She turned the handgun over to Officer Brooks.
August 8, 2017, a grand jury indicted Mr. Schmidt for one
count of possession of a firearm as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). He pleaded guilty to
the indictment and agreed to pay $1, 600 in restitution to
the U.S. Forest Service for having cut down trees in the
national forest without authorization.
preparation for Mr. Schmidt's sentencing, the probation
office prepared a presentence report, which calculated a
guidelines range of 51 to 63 months' imprisonment based
on a total offense level of 17 and a criminal history
category of VI. According to that report, Mr. Schmidt had 17
adult criminal convictions, including 3 felony convictions
under Wisconsin law for bail jumping, child abuse, and taking
and driving a vehicle without the owner's consent. His
other prior convictions included unlawful use of the phone to
threaten harm, criminal damage to property, carrying a
concealed weapon, and multiple convictions for disorderly
conduct and resisting an officer. None of his prior
convictions involved hate crimes.
his interview with the probation officer, Mr. Schmidt told
the officer of his belief in white supremacy and of his
desire to return to Germany to embrace his Nazi heritage.
Consequently, in his sentencing recommendation, the probation
[Mr. Schmidt] is  a self-avowed white supremacist, who
readily and reprehensibly articulated his bigoted hatred for
minority races during the presentence interview, despite
advice to the contrary from counsel. Mr. Schmidt further
indicated a strong desire to leave the United States, a
country he repeatedly professed his hatred for due to its
allowance of these same minorities to have civil rights, and
proclaimed a strong desire to relocate to Germany to retrace
his Nazi ancestral heritage.
probation officer added that Mr. Schmidt "has shown
repeated disrespect and disregard to individuals in positions
of authority, to include law enforcement officers; and has
readily embraced and openly expressed viewpoints of prejudice
and intolerance, and a gregarious hatred for the United
States." Mr. Schmidt also admitted having a tattoo
of a swastika on his back.
January 26, 2018, the district court conducted a sentencing
hearing. The Government recommended a sentence of 36
months' imprisonment; Mr. Schmidt requested a sentence of
probation. After adopting the presentence report's
guidelines recommended range of 51 to 63 months, the district
court observed that the guidelines range was a "starting
point" and that "the real sentencing determination
is made ... from considering two factors, the nature and
circumstances of the offense and the history and character of
the seriousness of the offense of conviction, the court
observed that Mr. Schmidt is a three-time convicted felon.
Further, the court noted, "Congress is trying to send a
very clear message that people that have engaged in ... the
type of conduct that lands a person in prison ... are not to
possess firearms because of the very dangerous nature of
those particular types of devices and
to Mr. Schmidt's history and character, the district
court began by stating: "I think the ideas that are
reflected in the Presentence Report and particularly in the
introduction are dangerous and they make a person who holds
them and with a history like this
dangerous." The court further elaborated that
"when asked to assess the seriousness of an offense and
the character of the Defendant/' the sentencing judge
"appropriately looks at the motivating ideas or the
ideas that a person has in trying to assess that person's
character" and "whether that person represents a
danger to the public." In this case, the court indicated
that it did not "put a great deal of weight" on Mr.
Schmidt's white supremacist beliefs "because this
offense ... does not involve the use of the gun for this
purpose." The court observed, however, that it was
alarmed "that a person holding these ideas has so little
respect for the law."
the court considered Mr. Schmidt's criminal history,
which began at age 18 and involved 17 criminal convictions
over the past 15 years. Further, the court observed that Mr.
Schmidt's white supremacist beliefs were evidence of his
He's now 32. These aren't the words of a youthful
offender. ... [T]hese are the words of someone who has-at
this point in life ought to know better and they represent a
threat and if he holds those ideas and people-as I said,
ideas matter. People do things based on their ideas and if
these are his ideas, he is a very dangerous person.
Now, as I said, I'm sentencing him for an offense, not
for his ideas but I am-it seems to me I appropriately can
consider those in deciding an important factor which is
whether he represents a threat... to the community and
whether he is a future danger.
on the nature of the offense, Mr. Schmidt's history and
character, and the need for deterrence, the district court
imposed a sentence of 48 months' imprisonment, followed
by a three-year term of supervised release. The court
summarized its determination by saying:
I have not put great weight on the guidelines but I certainly
think that the nature of this offense, a possession of a
firearm as a convicted felon-three-time convicted felon and
with a history of violence and the kinds of threats that have
been issued by this person to others throughout the course of
his life and the absence of ties, really, to a community make
the sentence appropriate and a reasonable approach.
I think it's necessary also for deterrent purposes. These
are the types of crimes, the possession of firearms by people
convicted is something every community tries to stop. We have
a Constitutional right to possess firearms assuming we have
not forfeited that right by virtue of criminal conduct and
this is-the possession and-of a gun in this fashion is a
serious matter. I also think it's-so I think it serves
deterrence, it's punishment and, of course, protection of
the entry of final judgment, Mr. Schmidt timely appealed.