United States v. Erik C. Schmidt
Opinion
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
*860 I
BACKGROUND
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
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
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.
*861 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 *862 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.
II
DISCUSSION
A.
Mr. Schmidt contends that the district court violated his First Amendment rights because it sentenced him "in part based upon his abstract belief in white supremacy that bore no relation to the offense of conviction." 15
We begin by setting forth the principles that must guide our assessment of this argument. A judge's obligation at sentencing is clear. "A sentencing judge must first calculate the applicable guidelines range, then apply the [ 18 U.S.C.] § 3553(a) factors, and finally arrive at a reasonable sentence."
United States v. Lua-Guizar
,
A sentencing judge also must safeguard a defendant's First Amendment expression and associational rights during the sentencing process. Supreme Court precedent and the cases of this court provide ample guidance in this respect. In
Barclay v. Florida
,
The Court again encountered this issue in
Dawson v. Delaware
,
The Aryan Brotherhood refers to a white racist prison gang that began in the 1960's in California in response to other gangs of racial minorities. Separate gangs calling themselves the Aryan Brotherhood now exist in many state prisons including Delaware.
Dawson submitted that "the Constitution forbids the consideration in sentencing of any evidence concerning beliefs or activities that are protected under the First Amendment."
The Court's reasoning in
Dawson
suggested that evidence of a defendant's protected associations or beliefs
would
be relevant at sentencing
if
the Government tied that evidence to the offense of conviction or introduced it to rebut mitigating evidence.
Dawson
and
Barclay
were the Court's guideposts when it returned to a defendant's associational rights in the sentencing process in
Wisconsin v. Mitchell
,
Our court has followed the Supreme Court's guidance when addressing a First Amendment challenge to a sentencing enhancement in
Kapadia v. Tally
,
We rejected this argument. We held that "[n]othing in the Constitution prevents the sentencing court from factoring a defendant's statements into sentencing when those statements are relevant to the crime
or to legitimate sentencing considerations
."
Our sister circuits also have held that a sentencing court can properly consider a defendant's beliefs or associations as relevant to an estimation of his future dangerousness. For instance, in
Fuller v. Johnson
,
Other courts of appeals also have upheld a sentencing judge's consideration of the defendant's protected associations, beliefs, or statements because that evidence was relevant to the sentencing factors set forth in
Far less frequently, our sister circuits have held that a trial court violated a defendant's First Amendment rights by considering evidence of his protected activity that was not relevant in any way to his sentence. Mr. Schmidt principally relies on the First Circuit's decision in
United States v. Alvarez-Núñez
,
The Supreme Court's guideposts and the more specific elaboration of those guideposts by the courts of appeals make *867 clear that, although a person may not be punished solely for holding ideas that are reprehensible, those ideas, when combined with a person's history and character traits, can be relevant to a sentencing court's determination. As the cases set forth above demonstrate, the defendant's history and character are often most prominently displayed by the nature of the underlying offense or the circumstances that surround its commission. On other occasions, the history and character of the defendant are manifest most graphically in the criminal history and other life events detailed in the presentence report or other documentation in the record. With these principles in mind, we now turn to the district court's imposition of Mr. Schmidt's sentence.
B.
The propriety of Mr. Schmidt's sentence turns on whether his white supremacist beliefs were "relevant to the crime or to legitimate sentencing considerations."
Kapadia
,
Because Mr. Schmidt did not commit a "bias-motivated crime,"
Kapadia
,
In examining these factors, the district court was well aware that Mr. Schmidt had a firmly established pattern of violence, anger, threatening behavior, and an inability to control his impulses. On the basis of these observations, the district court expressed particular concern about Mr. Schmidt's threat of future dangerousness. It commented that "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." 23 Noting Mr. Schmidt's 17 criminal convictions in the past 15 years and observing that, at age 32, Mr. Schmidt is no *868 longer a "youthful offender," the court continued:
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. [ 24 ]
The court's comments make clear that that the district court did not sentence Mr. Schmidt based on his "mere abstract beliefs."
Dawson
,
In addition to its consideration of Mr. Schmidt's future dangerousness, the district court expressed concern with the need, in light of Mr. Schmidt's earlier actions, to "promote respect for the law."
In the end, Mr. Schmidt's statements, when viewed in light of his criminal history *869 and his continued disrespect for the law, raised a serious question in the sentencing judge's mind as to whether he posed a threat of violent or anti-social conduct to the community. There was no error, plain or otherwise, 29 in the district court's assessment that Mr. Schmidt's beliefs were reasonably related to a legitimate sentencing purpose.
Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED
The district court had jurisdiction under
We have jurisdiction over this appeal under
We have reviewed the descriptions of these offenses in the presentence report. They contain ample evidence to support the district court's estimation of Mr. Schmidt's predilection for violence and threats of violence.
R.21 at 2.
R.38 at 24.
See supra p.860 and note 3.
R.38 at 32.
Id. at 33.
Appellant's Br. 9.
Similarly, in
United States v. Bone
,
As outlined in
See, e.g.
,
United States v. Simkanin
,
See, e.g.
,
United States v. Fell
,
Mr. Schmidt's felony convictions were for bail jumping, child abuse, and taking and driving a vehicle without the owner's consent. There is no indication in the presentence report that Mr. Schmidt's white supremacist beliefs featured in any of the underlying conduct for these offenses.
According to the presentence report, Mr. Schmidt stated that his girlfriend had the gun to protect them from wolves.
R.38 at 31.
Id. at 32.
In this context, the assessment of a defendant's future dangerousness, it certainly was relevant for the district court to consider the underlying offense of felon in possession. "Congress enacted [18 U.S.C.] § 922(g)(1) in order to keep firearms out of the hands of those persons whose prior conduct indicated a heightened proclivity for using firearms to threaten community peace and the 'continued and effective operation of the Government of the United States.' "
United States v. Jester
,
R.21 at 2.
R.38 at 31.
We further note that the district court repeatedly disclaimed that it was imposing its sentence based on Mr. Schmidt's white supremacist beliefs. At least one court of appeals has upheld a sentence challenged on First Amendment grounds where the sentencing court "specifically admonished the defendants that it was not imposing its sentence on the basis of their political views or remarks."
United States v. Rosenberg
,
Because there was no error under the usual standard or under the plain error standard, we need not determine whether defense counsel adequately preserved this issue at trial.
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Erik C. SCHMIDT, Defendant-Appellant.
- Cited By
- 8 cases
- Status
- Published