United States v. Erik C. Schmidt ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1259
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIK C. SCHMIDT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 1:17-cr-00136-WCG-1 — William C. Griesbach, Chief Judge.
____________________
ARGUED NOVEMBER 2, 2018 — DECIDED JULY 17, 2019
____________________
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. 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 fel-
ony convictions, had a handgun in his tent. A grand jury in-
dicted 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
2 No. 18-1259
his probation officer, Mr. Schmidt communicated to the of-
ficer 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 super-
vised release.1 Mr. Schmidt now contends that the district
court violated his First Amendment rights when it consid-
ered 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
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 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 at-
1 The district court had jurisdiction under 18 U.S.C. § 3231.
2We have jurisdiction over this appeal under 28 U.S.C. § 1291 and 18
U.S.C. § 3742.
No. 18-1259 3
tached 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 pri-
or felony convictions. When questioned by the officer,
Mr. Schmidt admitted that he was a convicted felon, but con-
tended 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 for-
est without authorization.
In preparation for Mr. Schmidt’s sentencing, the proba-
tion 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 crim-
inal convictions, including 3 felony convictions under Wis-
consin law for bail jumping, child abuse, and taking and
driving a vehicle without the owner’s consent. His other pri-
or convictions included unlawful use of the phone to threat-
en harm, criminal damage to property, carrying a concealed
weapon, and multiple convictions for disorderly conduct
4 No. 18-1259
and resisting an officer.3 None of his prior convictions in-
volved 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 su-
premacist, who readily and reprehensibly ar-
ticulated his bigoted hatred for minority races
during the presentence interview, despite ad-
vice to the contrary from counsel. Mr. Schmidt
further indicated a strong desire to leave the
United States, a country he repeatedly pro-
fessed his hatred for due to its allowance of
these same minorities to have civil rights, and
proclaimed a strong desire to relocate to Ger-
many 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
3 We have reviewed the descriptions of these offenses in the presentence
report. They contain ample evidence to support the district court’s esti-
mation of Mr. Schmidt’s predilection for violence and threats of violence.
4 R.21 at 2.
No. 18-1259 5
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 sen-
tencing hearing. The Government recommended a sentence
of 36 months’ imprisonment; Mr. Schmidt requested a sen-
tence of probation. After adopting the presentence report’s
guidelines recommended range of 51 to 63 months, the dis-
trict 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 circum-
stances 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 convict-
ed 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 dis-
trict court began by stating: “I think the ideas that are re-
flected in the Presentence Report and particularly in the in-
troduction are dangerous and they make a person who holds
them and with a history like this dangerous.”8 The court fur-
5 Id. at 3.
6 R.38 at 24.
7 Id. at 26.
8 Id. at 30 (emphasis added).
6 No. 18-1259
ther elaborated that “when asked to assess the seriousness of
an offense and the character of the Defendant,” the sentenc-
ing judge “appropriately looks at the motivating ideas or the
ideas that a person has in trying to assess that person’s char-
acter” 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 histo-
ry, which began at age 18 and involved 17 criminal convic-
tions 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.
9 Id. at 31.
10 Id.11 Id.12 See supra p.3 and note 3.
No. 18-1259 7
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 decid-
ing 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 sum-
marized its determination by saying:
I have not put great weight on the guidelines
but I certainly think that the nature of this of-
fense, 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 ab-
sence of ties, really, to a community make the
sentence appropriate and a reasonable ap-
proach.
I think it’s necessary also for deterrent pur-
poses. These are the types of crimes, the pos-
session 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 pos-
13 R.38 at 32.
8 No. 18-1259
session and—of a gun in this fashion is a seri-
ous matter. I also think it’s—so I think it serves
deterrence, it’s punishment and, of course, pro-
tection 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 sen-
tencing 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, 656 F.3d 563, 566 (7th Cir. 2011).
The court must “give meaningful consideration” to the
§ 3553(a) factors, “which include the history and characteris-
tics of the defendant, the nature and circumstances of the of-
fense, the seriousness of the offense, the promotion of re-
spect for the law, just punishment for the offense,
14 Id. at 33.
15 Appellant’s Br. 9.
No. 18-1259 9
… deterrence to criminal conduct, and protection of the pub-
lic from further crimes by the defendant.” United States v.
Christiansen, 594 F.3d 571, 576 (7th Cir. 2010). “Although the
court is not required to discuss every factor set forth under
§ 3553(a), it must articulate the particular factors it consid-
ered in sentencing.” Id. at 576–77.
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, 463 U.S. 939 (1983), the defendant sought to
vacate his sentence “because the trial judge, in explaining his
sentencing decision, discussed the racial motive for the
murder.” Id. at 948. The jury had convicted Barclay of mur-
dering a white man while a member of the Black Liberation
Army, “whose apparent sole purpose was to indiscriminate-
ly kill white persons and to start a revolution and a racial
war.” Id. at 942 (internal quotation marks omitted). The sen-
tencing court “found Barclay’s desire to start a race war rel-
evant to several statutory aggravating factors,” justifying the
death penalty. Id. at 949. In rejecting Barclay’s Eighth
Amendment challenge, the Supreme Court held that “[t]he
United States Constitution does not prohibit a trial judge
from taking into account the elements of racial hatred in this
murder.” Id. The Court reasoned that “[a]ny sentencing deci-
sion calls for the exercise of judgment,” and that the trial
court’s discussion of Barclay’s racial hatred was “neither ir-
rational nor arbitrary.” Id. at 950, 949.
The Court again encountered this issue in Dawson v. Del-
aware, 503 U.S. 159 (1992). A jury had convicted Dawson of
first-degree murder. During a capital sentencing proceeding,
10 No. 18-1259
he challenged, on First Amendment grounds, the introduc-
tion of evidence of his membership in the Aryan Brother-
hood. The State introduced at the penalty hearing a stipula-
tion stating that:
The Aryan Brotherhood refers to a white racist
prison gang that began in the 1960’s in Califor-
nia in response to other gangs of racial minori-
ties. Separate gangs calling themselves the Ar-
yan Brotherhood now exist in many state pris-
ons including Delaware.
Id. at 162 (internal quotation marks omitted). The prosecu-
tion also “introduced evidence that Dawson had tattooed the
words ‘Aryan Brotherhood’ on his hand” and that he re-
ferred to himself as “‘Abaddon,’ which he said meant ‘one of
Satan’s disciples.’” Id. at 162, 161 (alteration omitted). Based
on the jury’s recommendation, the trial court imposed the
death penalty. Id. at 163.
Dawson submitted that “the Constitution forbids the
consideration in sentencing of any evidence concerning be-
liefs or activities that are protected under the First Amend-
ment.” Id. at 164. Noting its decision in Barclay, the Supreme
Court rejected Dawson’s formulation as “too broad.” Id. The
Court emphasized “that ‘the sentencing authority has al-
ways been free to consider a wide range of relevant materi-
al.’” Id. (quoting Payne v. Tennessee, 501 U.S. 808, 820–21
(1991)). Consequently, continued the Court, “the Constitu-
tion does not erect a per se barrier to the admission of evi-
dence concerning one’s beliefs and associations at sentencing
simply because those beliefs and associations are protected
by the First Amendment.” Id. at 165. Nevertheless, in Daw-
son’s case, the stipulation about his membership in the Ary-
No. 18-1259 11
an Brotherhood constituted constitutional error because
there was no connection between the narrow stipulation and
a relevant aggravating or mitigating factor in the sentencing
procedure. “The brief stipulation proved only that an Aryan
Brotherhood prison gang originated in California in the
1960’s, that it entertain[ed] white racist beliefs, and that a
separate gang in the Delaware prison system call[ed] itself
the Aryan Brotherhood.” Id. The Court concluded that “the
narrowness of the stipulation left the Aryan Brotherhood ev-
idence totally without relevance to Dawson’s sentencing
proceeding.” Id. In particular, evidence of his membership
“was not tied in any way to the murder of Dawson’s victim,”
and therefore was “not relevant to help prove any aggravat-
ing circumstance,” or to “rebut any mitigating evidence of-
fered by Dawson.” Id. at 166–67. The Court therefore decid-
ed that “Dawson’s First Amendment rights were violated by
the admission of the Aryan Brotherhood evidence in this
case, because the evidence proved nothing more than Daw-
son’s abstract beliefs.” Id. at 167.
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 mitigat-
ing evidence. Id. at 166–67. The evidence could be “relevant
to help prove any aggravating circumstance[s]” given that,
“[i]n many cases, … associational evidence might serve a le-
gitimate purpose in showing that a defendant represents a
future danger to society.” Id. at 166. Specifically, the Court
reasoned, “[a] defendant’s membership in an organization
that endorses the killing of any identifiable group, for exam-
ple, might be relevant to a jury’s inquiry into whether the
defendant will be dangerous in the future.” Id.
12 No. 18-1259
Dawson and Barclay were the Court’s guideposts when it
returned to a defendant’s associational rights in the sentenc-
ing process in Wisconsin v. Mitchell, 508 U.S. 476 (1993). A
jury convicted Mitchell of aggravated battery and found that
he “had intentionally selected his victim because of the boy’s
race,” triggering a Wisconsin penalty-enhancement statute.
Id. at 480. “Because the only reason for the enhancement
[wa]s the defendant’s discriminatory motive for selecting his
victim, Mitchell argue[d] … that the statute violate[d] the
First Amendment by punishing offenders’ bigoted beliefs.”
Id. at 485. The Supreme Court rejected this argument. While
reiterating its statement in Dawson that a defendant’s ab-
stract beliefs may not be taken into consideration by the sen-
tencing judge, it also recalled its statement that “the Consti-
tution does not erect a per se barrier to the admission of evi-
dence” of the defendant’s beliefs and associations. Id. at 486(quoting Dawson, 503 U.S. at 165). Specifically, noted the
Court, those beliefs and associations are admissible when
they are relevant to establish a forbidden animus or intent or
when they are relevant to another sentencing factor. Id. at
486–88.
Our court has followed the Supreme Court’s guidance
when addressing a First Amendment challenge to a sentenc-
ing enhancement in Kapadia v. Tally, 229 F.3d 641 (7th Cir.
2000). At Kapadia’s sentencing for burglary and arson of a
Jewish community center, a courtroom deputy testified that
he had overheard Kapadia utter several anti-Semitic slurs at
various times following his trial. Id. at 642. The sentencing
judge noted that he was “trouble[d]” by “the vitriol directed
towards the group that also happen[ed] to be the victims” of
Kapadia’s crimes. Id. at 643 (internal quotation marks omit-
ted). Further, the court stated that it “did take the comments
No. 18-1259 13
into consideration because one of the things [the court has]
to consider is the possibility of reformation of the defendant.
How likely is this defendant to be restored to useful citizen-
ship.” Id. (internal quotation marks omitted). The court fur-
ther observed that Kapadia’s “virulent anti-Semitism [was]
indicative of the fact that he [was] not likely to change his
ways” and was “not likely to become a productive member
of society.” Id. (internal quotation marks omitted) (alteration
omitted). The trial court then sentenced him to the statutory
maximum term of imprisonment. When the case came be-
fore us on collateral review, Kapadia argued that the sen-
tencing court “did not tie his anti-Semitic statements to his
crime and therefore punished him solely for expressing an
unpopular opinion.” Id. at 644.
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 state-
ments are relevant to the crime or to legitimate sentencing con-
siderations.” Id. at 648 (emphasis added). We explained that
the sentencing judge “found Kapadia more dangerous be-
cause he held anti-Semitic views and attacked a Jewish
community center.” Id. at 647. “[B]ecause Kapadia held these
views and had committed a bias-motivated crime,” we ob-
served, “there was a greater probability he would not be re-
habilitated.” Id. This was “just another way of stating that
Kapadia presented a threat of future dangerousness to the
community, a proper consideration under Barclay and Mitch-
ell.” Id. We distinguished Dawson on the ground that “Kapa-
dia was not punished for his abstract beliefs but rather for
committing a crime motivated by bias against the very
group of people he maligned with his hateful invective.” Id.
at 648. We reiterated that “[t]he First Amendment does not
14 No. 18-1259
bar consideration of these statements at sentencing when
they are indicative of motive and future dangerousness,”
and we concluded that “the sentencing court’s comments
ma[de] plain enough that it was considering the remarks as
such.” Id.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, 114 F.3d 491 (5th Cir. 1997), the
court rejected Fuller’s claim that the introduction of “testi-
mony that he was a member of the Aryan Brotherhood pris-
on gang” and testimony “about the gang and its beliefs” “as
an aggravating factor supporting the death penalty violated
his First Amendment rights of freedom of belief and associa-
tion.” Id. at 497–98. Distinguishing Dawson, the Fifth Circuit
reasoned that the State “did not merely stipulate that Fuller
was in the Aryan Brotherhood[;] [i]t introduced evidence
that Fuller was a member of a gang that had committed un-
lawful or violent acts, including homicides, multiple stab-
bings, drug dealing, and aggravated assaults.” Id. at 498.
Although “Fuller was within his rights in joining the gang,”
the court held that the State “did not violate Fuller’s First
Amendment rights because it introduced relevant evidence
of his future dangerousness.” Id.16
16 Similarly, in United States v. Bone, 433 F. App’x 831 (11th Cir. 2011) (per
curiam) (unpublished), the court held that there was no plain error in the
district court’s consideration of the defendant’s declaration of sovereign-
ty at his sentencing for bank robbery and brandishing a firearm during a
crime of violence. Id. at 835. In the view of the district court, “the state-
ments were evidence of Bone’s refusal to accept responsibility for his
acts, his unpreparedness to return to society, the danger to himself and
(continued … )
No. 18-1259 15
Other courts of appeals also have upheld a sentencing
judge’s consideration of the defendant’s protected associa-
tions, beliefs, or statements because that evidence was rele-
vant to the sentencing factors set forth in 18 U.S.C.
§ 3553(a).17 In addition, our sister circuits have held that such
evidence is relevant to the defendant’s likelihood of recidi-
vism.18 Still other courts have recognized that the Govern-
( … continued)
to others of returning him to society, and his lack of respect for the law.”
Id. Agreeing that these were “proper sentencing considerations under 18
U.S.C. § 3553(a),” the Eleventh Circuit concluded that the sentencing
court “did not consider Bone’s speech for the irrelevant and impermissi-
ble purpose of demonstrating his general moral reprehensibility.” Id.(citing Dawson v. Delaware, 503 U.S. 159, 165 (1992)).
17 As outlined in 18 U.S.C. § 3553(a), “[f]actors to be considered in impos-
ing a sentence” include “the nature and circumstances of the offense and
the history and characteristics of the defendant” and “the need for the
sentence imposed” to, inter alia, “reflect the seriousness of the offense,”
“promote respect for the law,” “provide just punishment for the of-
fense,” “afford adequate deterrence to criminal conduct,” and “protect
the public from further crimes of the defendant.” Id. § 3553(a)(1), (2).
Representative cases include, e.g., United States v. DeChristopher, 695 F.3d
1082, 1099 (10th Cir. 2012) (concluding that the defendant’s statements
that “he would ‘continue to fight’” and “his view that it was ‘fine to
break the law’ were ‘highly relevant’” to determining “the sentence nec-
essary to deter [him] from future violations and to promote respect for
the law”), and United States v. Stewart, 686 F.3d 156, 170 (2d Cir. 2012)
(concluding that the sentencing court “was properly concerned about
whether [the defendant] considered her previous sentence to have been
‘trivial,’ and whether she had remorse for her acts adjudged to be serious
crimes, not about any political views of hers”).
18 See, e.g., United States v. Simkanin, 420 F.3d 397, 417 (5th Cir. 2005)
(holding that defendant’s “specific beliefs that the tax laws are invalid
and do not require him to withhold taxes or file returns (and his associa-
(continued … )
16 No. 18-1259
ment may introduce evidence of a defendant’s associations,
beliefs, or statements to rebut mitigating evidence offered by
the defense.19
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, 828 F.3d 52 (1st Cir. 2016), which vacated a
sentence that “rested entirely on naked inferences drawn
from the content of [] lyrics and music videos” performed by
the defendant’s musical group. Id. at 57. At sentencing, the
district court “acknowledged that ‘you cannot sentence
somebody because he’s a musician,’ but nevertheless
concluded that ‘the lyrics of this music confirm … this
individual’s involvement with firearms, with violence, with
( … continued)
tion with an organization that endorses the view that free persons are
not required to pay income taxes on their wages) [were] directly related
to” his tax crimes and “demonstrate[d] a likelihood of recidivism”).
19 See, e.g., United States v. Fell, 531 F.3d 197, 229–30 (2d Cir. 2008) (con-
cluding that evidence of defendant’s interest in multiple religions and of
his “manufactured grievances based on his purported religious beliefs”
“was reasonably elicited to present a more complete picture of Fell that
belied the one of a well-adjusted inmate offered by the defense”); United
States v. Kane, 452 F.3d 140, 142–43 (2d Cir. 2006) (per curiam) (upholding
consideration of Kane’s published writings, “to the extent that they re-
butted his mitigating evidence,” “on topics ranging from wife ‘training’
to illegal real estate transactions” because the “First Amendment does
not bar the government from putting the lie to a defendant’s proof at
sentencing”).
No. 18-1259 17
murders, in the context of a community like’” the
defendant’s public housing project. Id. at 56. The district
court added that the group’s song lyrics and music videos
indicated “the need for deterrence because they comprised
‘written and visual confirmation’ of the defendant’s
‘inclination as to violence.’” Id. According to the sentencing
judge, “these materials provided objective evidence … that
this crime was not a mistake that the defendant committed
one day,” but that “this is an individual who makes a life not
only carrying this kind of firearm, but also preaching the
benefits of having this kind of firearm.” Id. (alterations
omitted) (internal quotation marks omitted). The First
Circuit reversed. The court held that, absent “[e]vidence
extrinsic to the protected words or conduct” indicating that
the “work speaks to a defendant’s motive, state of mind, or
some other attribute in a way that is relevant to sentencing,”
“the mere fact that a defendant’s crime happens to resemble
some feature of his prior artistic expression cannot, by itself,
establish the relevance of that expression to sentencing.” Id.
at 57. “[M]uch artistic expression, by its very nature,”
reasoned the court, “has an ambiguous relationship to the
performer’s personal views.” Id. In Alvarez-Núñez’s case,
“[n]othing in the record indicate[d] that the lyrics or music
videos had any direct application either to the defendant or
to his lifestyle,” nor were they “unlawful in any respect.” Id.
Therefore, “[g]iven the sentencing court’s heavy reliance on
protected conduct that was not tied through extrinsic evidence to
any relevant sentencing factor, its sentencing rationale [was]
implausible,” and resentencing was required. Id. at 58.
(emphasis added).
The Supreme Court’s guideposts and the more specific
elaboration of those guideposts by the courts of appeals
18 No. 18-1259
make 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 wheth-
er his white supremacist beliefs were “relevant to the crime
or to legitimate sentencing considerations.” Kapadia, 229 F.3d
at 648. We first examine whether these beliefs are relevant to
the crime. This is not a case like Kapadia where the defendant
“commit[ted] a crime motivated by bias against the very
group of people he maligned with his hateful invective.” Id.The court sentenced Mr. Schmidt for being a felon in posses-
sion of a firearm, a crime that can implicate a variety of un-
derlying offense conduct. Moreover, none of the felonies
subjecting him to this restriction,20 nor his purpose in carry-
20Mr. 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 su-
(continued … )
No. 18-1259 19
ing a handgun into the forest on this specific occasion,21 in-
volved or was otherwise motivated by his white supremacist
beliefs. Indeed, the sentencing judge acknowledged as much,
stating that he did not “put a great deal of weight” in
Mr. Schmidt’s ideas “because this offense … does not in-
volve the use of the gun for this purpose.”22
Because Mr. Schmidt did not commit a “bias-motivated
crime,” Kapadia, 229 F.3d at 647, we must examine next
whether the district court’s discussion of his white suprema-
cist ideas was based on another legitimate sentencing con-
sideration. Id. at 648. Section 3553(a) of Title 18 sets forth the
factors relevant to the imposition of sentence. These include
“the nature and circumstances of the offense and the history
and characteristics of the defendant” and “the need for the
sentence imposed” to “reflect the seriousness of the offense,”
“promote respect for the law,” “afford adequate deterrence,”
and “protect the public from further crimes of the defend-
ant.” Id. § 3553(a)(1), (2).
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
( … continued)
premacist beliefs featured in any of the underlying conduct for these of-
fenses.
21 According to the presentence report, Mr. Schmidt stated that his girl-
friend had the gun to protect them from wolves.
22 R.38 at 31.
20 No. 18-1259
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 longer a “youthful offender,” the court
continued:
Now as I said, I’m sentencing him for an of-
fense, not for his ideas but I am—it seems to
me I appropriately can consider those in decid-
ing 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 ab-
stract beliefs.” Dawson, 503 U.S. at 167. Rather, as in Kapadia,
the court properly considered Mr. Schmidt’s white suprema-
cist ideas and hatred for the United States as evidence that
he “present[s] a threat of future dangerousness to the com-
munity.” 229 F.3d at 647; see also id. at 648 (noting that “[t]he
First Amendment does not bar consideration of these state-
ments at sentencing when they are indicative of … future
dangerousness”). Mr. Schmidt’s radical belief in the superi-
ority of one race over all others, and his communication of
that belief to the probation officer, against the advice of
counsel, during his presentence interview, revealed the dan-
23 Id. at 30 (emphasis added).
24 Id. at 32.
No. 18-1259 21
ger of returning him to society. The district court therefore
considered Mr. Schmidt’s beliefs not for the impermissible
purpose of demonstrating general moral reprehensibility,
but for the legitimate sentencing purpose of determining his
likelihood of future dangerousness.25
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.” 18 U.S.C. § 3553(a)(2). The court noted
the probation office’s sentencing recommendation, which
indicated that Mr. Schmidt “repeatedly professed his ha-
tred” for the United States “due to its allowance
of … minorities to have civil rights” and “proclaimed a
strong desire to relocate to Germany to retrace his Nazi an-
cestral heritage.”26 The court noted its “great alarm that a
person holding these ideas has so little respect for the law.”27
25 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 Gov-
ernment of the United States.’” United States v. Jester, 139 F.3d 1168, 1171
(7th Cir. 1998) (quoting Lewis v. United States, 445 U.S. 55, 66 (1980)). In-
deed, the district court made this concern explicit during the sentencing
hearing: “Congress is trying to send a very clear message that people
that have engaged in … the type of conduct that lands a person in pris-
on … are not to possess firearms because of the very dangerous nature of
those particular types of devices and weapons.” R.38 at 26.
26 R.21 at 2.
27 R.38 at 31.
22 No. 18-1259
Indeed, quite aside from his future dangerousness to others,
the expression of these desires, combined with a record of
repeated violations of law, evinced a willingness to continue
on a path of lawlessness in the absence of significant correc-
tion.28
In the end, Mr. Schmidt’s statements, when viewed in
light of his criminal history 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 oth-
erwise,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
28 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 ad-
monished the defendants that it was not imposing its sentence on the
basis of their political views or remarks.” United States v. Rosenberg, 806
F.2d 1169, 1179 (3d Cir. 1986).
29 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.