                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                   October 28, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-3249
                                              (D.C. No. 5:08-CR-40031-RDR-1)
    MICHAEL NORRIS SCHMIDT,                               (D. Kan.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before KELLY, MURPHY, and GORSUCH, Circuit Judges.



         Defendant Michael Norris Schmidt appeals from a district court order

affirming the magistrate judge’s order for his detention, based on his potential

danger to the community pending trial. We exercise jurisdiction under 18 U.S.C.

3145(c) and affirm.




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
                                          I.

       Mr. Schmidt is charged in the United States District Court for the District

of Kansas with eight crimes involving firearms: three counts of firearm

possession by a felon, in violation of 18 U.S.C. § 922(g); three counts of

possession of a firearm by an unlawful user of controlled substances, in violation

of 18 U.S.C. § 922(j); and one count of possession of an unregistered firearm, in

violation of 26 U.S.C. § 5861(d). The charged offenses allegedly occurred on

three occasions between November 2007 and March 2008.

      At Mr. Schmidt’s arraignment and detention hearing, the government

followed the probation office’s recommendation and requested pretrial detention

based on the multiple charges, his criminal history, and his problems with drug

and alcohol abuse. Mr. Schmidt’s attorney argued that the government was

overstating the situation–that his criminal history listed relatively minor offenses

and that the guns involved in the charged offenses were hunting weapons, except

for a revolver and sawed-off shotgun found during a search of a girlfriend’s

home. The attorney proposed conditions of release that would allow Mr. Schmidt

to live at a friend’s house in Wamego, Kansas.

      Upon consideration of the parties’ proffers and arguments, the magistrate

judge found that Mr. Schmidt had no significant family ties in the area, no

employment, and no substantial financial resources. Also, he had a history of

substance abuse and a prior criminal record. The magistrate judge was

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particularly troubled by the “significant number of weapons” involved on “three

different occasions” over a five-month period. Aplt. App., Tab 6 at 38. Each

time Mr. Schmidt was found in possession of firearms, he also was found in

possession of user quantities of illegal substances. To the magistrate judge, the

evidence was clear and convincing that Mr. Schmidt should not be released

because no condition or combination of conditions would reasonably assure the

safety of other persons in the community.

      Mr. Schmidt sought review of the detention order from the district court,

asserting that the magistrate judge’s findings were inconsistent with the factual

circumstances. Further, he asked to be released to live in Harrison, Arkansas,

with his ill parents. Mr. Schmidt avowed if released, he would care for his

parents and seek immediate employment. In addition, he would be amenable to

any conditions imposed by the court, including drug testing, drug treatment, and

electronic monitoring.

      The district court examined the evidence presented to the magistrate judge

and also considered the evidence offered at the review hearing. Based on its de

novo review, the district court denied defendant’s motion and ordered him

detained pending trial. Mr. Schmidt now appeals, arguing that the district court

erred in upholding the magistrate judge’s order of pretrial detention.




                                         -3-
                                          II.

      Claims of erroneous detention present questions of fact and mixed

questions of law and fact. United States v. Cisneros, 328 F.3d 610, 613 (10th Cir.

2003). This court “appl[ies] de novo review to mixed questions of law and fact

concerning the detention or release decision, but we accept the district court’s

findings of historical fact which support that decision unless they are clearly

erroneous.” Id.

      Pretrial release and detention are governed by 18 U.S.C. § 3142, a

provision of the Bail Reform Act (the Act). “Generally, the Act allows the

detention of a defendant pending trial only if a judicial officer finds that no

condition or combination of conditions will reasonably assure the appearance of

the person as required and the safety of any other person and the community. ”

United States v. Ingle, 454 F.3d 1082, 1084 (10th Cir. 2006). Under §§ 3142(e)

and (f), a defendant may be detained based on danger to the community only if

the court finds by clear and convincing evidence that no conditions of release will

reasonably assure the community’s safety. Cisneros, 328 F.3d at 616. A court’s

decision on this issue is to be guided by four factors: (1) the nature and

circumstances of the offense; (2) the weight of the evidence; (3) the history and

characteristics of the defendant; and (4) the nature and seriousness of the danger

to any person or the community. § 3142(g)(1)-(4).




                                          -4-
      On appeal, Mr. Schmidt does not point to a specific procedural, factual, or

legal error in the district court proceedings. Rather, he continues to emphasize

that neither his previous convictions nor the charged offenses are crimes of

violence. Our de novo review of the record reveals no error in the district court’s

consideration of the statutory factors or the weight it accorded to these factors.

      The order of the district court is AFFIRMED.



                                                Entered for the Court
                                                Per Curiam




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