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United States v. Schmidt

United States Court of Appeals, Seventh Circuit

July 17, 2019

United States of America, Plaintiff-Appellee,
Erik C. Schmidt, Defendant-Appellant.

          Argued November 2, 2018

          Appeal from the United States District Court for the Eastern District of Wisconsin. No. l:17-cr-00136-WCG-l - William C. Griesbach, Chief Judge.

          Before Ripple, Kanne, and Rovner, Circuit Judges.


         Erik 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.[1] 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 court.[2]



         On July 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.

         On 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.

         In 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.[3] None of his prior convictions involved hate crimes.

         During 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 officer wrote:

[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.[4]

         The 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."[5] Mr. Schmidt also admitted having a tattoo of a swastika on his back.

         On 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 Defendant."[6]

         Regarding 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 weapons."[7]

         Moving 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."[8] 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."[9] 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."[10] The court observed, however, that it was alarmed "that a person holding these ideas has so little respect for the law."[11]

         Next, the court considered Mr. Schmidt's criminal history, which began at age 18 and involved 17 criminal convictions over the past 15 years.[12] Further, the court observed that Mr. Schmidt's white supremacist beliefs were evidence of his continued dangerousness:

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.[13]

         Based 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 public[14]

         Following the entry of final judgment, Mr. Schmidt timely appealed.



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