United States District Court, N.D. New York
July 6, 2005.
UNITED STATES OF AMERICA,
CHARLES HILDENBRANDT, Defendant.
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER*fn1
On August 15, 2003, Defendant Charles Hildenbrandt
("Hildenbrandt") was charged with (1) knowingly, willfully, and
maliciously damaging and attempting to damage and destroy, by
means of fire and explosive, the building at 660 Fourth Street in
Troy, New York, which resulted in personal injury to a public
safety officer in the performance of his duties, in violation of
18 U.S.C. § 844(i) ("§ 844(i)"); and (2) knowingly using and
carrying a firearm in the form of a destructive device, during
and in relation to a crime of violence which can be prosecuted in
a court of the United States, that crime being the violation of §
844(i), in violation of 18 U.S.C. § 924(c)(1)(A) ("§
924(c)(1)(A)") and (c)(1)(B)(ii) ("§ 924(c)(1)(B)(ii)").
Superceding Indictment (Dkt. No. 13). After a seven day jury
trial, on June 4, 2004, the jury found Hildenbrandt guilty on
both counts. Jury Verdict Form (Dkt. No. 58).
A violation of § 844(i) carries a mandatory minimum sentence of
seven years and a maximum sentence of forty years.
18 U.S.C. § 844(i). Pursuant to § 924(c)(1)(B)(ii), when the firearm used in
the violation of § 924(c)(1)(A) is a destructive device, the
mandatory minimum sentence is thirty years. 18 U.S.C. § 924(c)(1)(B)(ii). Because
no term of imprisonment imposed pursuant to 18 U.S.C. § 924(c)
can run concurrently with any other term of imprisonment, the
total mandatory minimum sentence that is statutorily required to
be imposed upon Hildenbrandt is thirty-seven years.
18 U.S.C. § 924(c)(1)(D)(ii).
Hildenbrandt was scheduled to be sentenced on June 9, 2005, but
as both Hildenbrandt and the United States had recently submitted
memoranda regarding the mandatory minimums required in this case,
the Court entertained oral arguments on that issue and adjourned
the sentencing until June 28, 2005. June 9, 2005 Minute Entry
(Dkt. No. 75). Hildenbrandt contends that the enactment of such a
harsh mandatory minimum sentence by Congress violates the
separation of powers doctrine and that a thirty-seven year
sentence in this case violates the Eighth Amendment's prohibition
of cruel and unusual punishment.*fn2 Def. Memo. (Dkt. No.
72). Having carefully considered all of the arguments before it,
the Court is obligated to deny Hildenbrandt's objections to the
mandatory minimums and to impose the statutorily required
sentence of thirty-seven years. II. Discussion
A. Separation of Powers
Hildenbrandt claims that the constraints upon judicial
discretion established by Congress in enacting severe mandatory
minimums such as the one in this case violates the separation of
powers doctrine. Def. Memo. (Dkt. No. 72) at 15-16. He asserts
that these minimums in effect give prosecutors the unbridled
power in determining sentences because they decide what crimes to
charge. Id. While the Court is troubled that Congress
statutorily requires it to impose unjust sentences in certain
cases, that is Congress' power, and the Court will enforce it.
Judges traditionally had unfettered discretion regarding
sentencing, see, e.g., Mistretta v. United States,
488 U.S. 361, 390 (1989), but Congress has recently constrained that
discretion through the enactment of the federal Sentencing
Guidelines and various statutory minimum sentences. The result
has been that the determination regarding the amount of time a
person will be deprived of his liberty, the ultimate power our
government possesses, is no longer the exclusive province of a
neutral party. Instead, the prosecutor, in determining with which
crimes to charge a defendant, effectively determines the minimum
The Supreme Court, however, has held that "Congress has the
power to define criminal punishments without giving the courts
any sentencing discretion." Chapman v. United States,
500 U.S. 453, 467 (1991) (citing Ex parte United States, 242 U.S. 27, 37
(1916)). This power includes the authority to create mandatory
minimum sentences for crimes without running afoul of the
separation of powers doctrine. See, e.g., United States v.
Hammer, 3 F.3d 266, 269 (8th Cir. 1993) (citing Chapman,
500 U.S. at 467); see also United States v. Daniels, No.
98-4732, 1999 WL 496594, at *3 (4th Cir. 1999) (unpublished);
United States v. Chaidez, 916 F.2d 563, 565 (9th Cir. 1990). This is true even for lengthy mandatory minimum sentences.
See United States v. Phillips, No. 04-4109, 2005 WL 705425,
at *2 (4th Cir. 2005) (upholding mandatory life sentence for
conviction for conspiracy to possess with intent to distribute at
least 1.5 kilograms of methamphetamine against a separation of
powers challenge) (unpublished).
B. Cruel and Unusual Punishment
The Eighth Amendment's prohibition against cruel and unusual
punishment bars the imposition of sentences that are
disproportionate to the crime committed. Solem v. Helm,
463 U.S. 277, 285 (1983). Nonetheless, "[o]utside the context of
capital punishment, successful challenges to the
proportionality of particular sentences [will be] exceedingly
rare." Id. at 289-90 (citing Rummel v. Estelle, 445 U.S. 263,
272 (1980)) (emphasis in original). Federal courts should be
"reluctan[t] to review legislatively mandated terms of
imprisonment." Hutto v. Davis, 454 U.S. 370, 374 (1982)
(quoting Rummel, 445 U.S. at 274). The "Eighth Amendment
condemns only punishment that shocks the collective conscience of
society." United States v. Gonzalez, 922 F.2d 1044, 1053 (2d
The Supreme Court has held that "a court's proportionality
analysis under the Eighth Amendment should be guided by objective
criteria, including (i) the gravity of the offense and the
harshness of the penalty; (ii) the sentences imposed on other
criminals in the same jurisdiction; and (iii) the sentences
imposed for commission of the same crime in other jurisdictions."
Solem, 463 U.S. at 292. However, the Supreme Court later
clarified that consideration of the latter two guidelines are not
necessary in every case. Harmelin v. Michigan, 501 U.S. 957,
1004 (1991); see United States v. Bennett, 252 U.S. 559, 567
(2d Cir. 2001). Such consideration is only necessary "in the rare
case in which a threshold comparison of the crime committed and
the sentence imposed leads to an inference of gross disproportionality." Id. at
Hildenbrandt committed a heinous crime. He created an explosive
device, a "Molotov cocktail," and, without warning, threw it into
the window of an apartment occupied at that moment in time by his
ex-girlfriend, her current boyfriend, and an infant grandchild.
Extensive property damage and the death of a pet resulted, and
two firefighters sustained minor injuries. Fortunately, his
attempt to murder the occupants of the apartment was thwarted and
they escaped physically unharmed. It is not difficult to imagine
a different result when an explosive is thrown into a residence
that is occupied. The severity of the crime is clear.
The penalty that Congress has chosen to impose is a mandatory
thirty years for using an explosive device to commit a federal
crime of violence. This is certainly a harsh penalty, and for
Hildenbrandt, it is effectively a life sentence. It cannot be
said, however, that this sentence is so grossly disproportionate
to the crime as to require a lengthy comparative analysis because
"[t]he severity of [defendant's] crime brings his sentence within
the constitutional boundaries established by [the Supreme Court's
and Second Circuit's] prior decisions." See Harmelin,
501 U.S. at 1004.
The constitutionality of this sentence for a violation of §
924(c)(1)(B)(ii) has been confirmed time and time again. The
Second Circuit in United States v. Santos, 64 F.3d 41 (2d Cir.
1995) (vacated on other grounds), upheld a thirty year sentence
for a violation of § 924(c)(1)(B)(ii) in circumstances arguably
more deserving of leniency than those in the instant case.
Defendants in Santos operated a cocaine distribution center at
which a confidential informant was going to make a purchase.
Id. at 43. When the purported buyer entered the apartment, one
of the defendants was holding a firearm and a single kilogram of
cocaine was on a table. Id. at 44. Pursuant to a search
warrant, Drug Enforcement Agency ("DEA") agents searched the
apartment afterwards and found several firearms, cash, drugs, and drug paraphernalia. Id. When
looking in a broiler drawer in an oven in the kitchen, the DEA
agents found a loaded .22 caliber firearm with a silencer wrapped
in brown paper. Id. Because defendants were convicted of using
a firearm equipped with a silencer during and in relation to a
drug trafficking crime in violation of 18 U.S.C. § 924(c)(1),
they were sentenced to the mandatory thirty years under §
924(c)(1)(B)(ii). Id. at 43.
The Second Circuit determined that the sentence was not grossly
disproportionate to the crime because a silencer transforms a
firearm into a more threatening weapon that can kill without
warning or detection. Id. at 46. The same analysis is
appropriate in this case. The use of an explosive device adds
another layer to the already dangerous crime of arson. The
explosion of the device itself is a source of danger, and
increases the likelihood that harm will come to not only intended
victims, but unintended ones as well. As can be seen in the
Second Circuit's analysis in Santos, the fact that no person
was actually physically harmed is of no consequence to this
Further, the facts in Santos make that case more compelling
than Hildenbrandt's. In Santos, the gun was wrapped and hidden
away in a broiler drawer in another room and was only found by
agents during a search after defendants were arrested.
Hildenbrandt, on the other hand, actually threw the explosive
device into a residence occupied by three people and it exploded.
The difference between these two situations is clear, and if it
was not an Eighth Amendment violation to impose a thirty year
sentence in Santos, it certainly is not a violation to do so in
Courts in other circuits have also upheld the thirty year
mandatory sentence pursuant to § 924(c)(1)(B)(ii) against Eighth
Amendment attacks. See, e.g., United States v. Hammond, No.
96-4231, 1997 WL 54288, at *1 (4th Cir. 1997); United States v.
Gonzales, 121 F.3d 928, 944 (5th Cir. 1997); United States v.
Elder, Nos. 91-5605, 91-5606, 1992 WL 42346, at *2 (6th Cir.
1992); United States v. Martinez, 967 F.2d 1343, 1348 (9th Cir. 1992);
United States v. Sturmoski, 971 F.2d 452, 462 (10th Cir. 1992).
Moreover, courts have upheld higher sentences for crimes that
are arguably less serious than those in the case at hand against
Eighth Amendment challenges. Harmelin, 501 U.S. at 996 (life
imprisonment without parole for possession of 672 grams of
cocaine); Hutto, 454 U.S. at 372-73 (forty year sentence for
possession with intent to distribute nine ounces of marijuana);
Rummel, 445 U.S. at 285 (life sentence under state recidivist
statute in which the three predicate offenses were fraudulent use
of a credit card to obtain $80 worth of goods, passing a forged
check for $28.36, and obtaining $120.75 by false pretenses);
United States v. Valdez, 16 F.3d 1324, 1334 (2d Cir. 1994)
(life imprisonment without parole for "merely middle-level drug
dealers"); United States v. Rosenberg, 806 F.2d 1169, 1176 (3d
Cir. 1989) (fifty-eight year sentence for possession of
unregistered firearms, explosives, and false documents); Anthony
v. United States, 331 F.2d 687, 688 (9th Cir. 1964) (forty year
sentence for two marijuana sales by first-time offender).
Finally, the mandatory nature of the sentence does not
constitute cruel and unusual punishment. "[E]ven mandatory
sentences of life imprisonment without the possibility of parole
do not violate the Eighth Amendment simply because they are
mandatory." United States v. Jackson, 59 F.3d 1421, 1424 (2d
Cir. 1995) (citing Harmelin, 501 U.S. 994-96).
As a federal district court, this Court is required to follow
precedent established by higher courts. It is also bound to
follow the law as prescribed by Congress within the bounds of the
Constitution. Therefore, because the thirty-seven year mandatory
minimum sentence pursuant to § 924(c)(1)(B)(ii) is not in
violation of the Eighth Amendment of the Constitution, it must be
applied to Hildenbrandt. The Court has serious reservations about its obligation to
impose such a harsh sentence in this case. It is certainly true
that Hildenbrandt's criminal act was despicable, inexcusable, and
deserves the fullest measure of punishment that justice requires.
He attempted to kill his ex-girlfriend, her current boyfriend,
and an infant by throwing an incendiary device into the residence
they occupied. It is only by sheer good fortune that all escaped
alive and that the only physical injuries were minor.
Hildenbrandt deserves to be imprisoned for a long time, for that
is what justice requires.
But justice also demands consistency, rationality, and
proportionality. Congress has made no provision in this statute
regarding whether the explosive device is created by an amateur
or professional, is hand-made or machine-made, is employed by a
terrorist group or (as in this case) a jilted lover, or,
incredibly, whether the device even works or not. If the device
did not function and caused no damage whatsoever, the defendant
still would receive a mandatory minimum thirty year sentence. As
another court so aptly noted, "[a]s Aristotle once put it, in
Politics, there is no greater injustice than to treat unequal
things equally." United States v. Quigley, 798 F. Supp. 451,
457 (W.D. Mich. 1992).
There is something terribly wrong with a system in which a
defendant could throw an incendiary device that never ignites and
be imprisoned for a minimum of thirty years, while a defendant
who crosses state lines and actually rapes and sexually abuses a
very young child may be free in less than thirteen years. See
U.S. SENTENCING GUIDELINES MANUAL § 2A3.1(a) and (b)(2)(A)
(2004).*fn3 A defendant that commits arson resulting in the
death of a person in New York State has a minimum of fifteen to twenty-five years, N.Y. PENAL
LAW § 125.25(3), 70.00(3)(a)(i) (2004), and in federal court, a
defendant convicted of second degree murder can be released in
under twenty years. See U.S. SENTENCING GUIDELINES MANUAL §
2A1.2(a).*fn4 Congress has constructed a legal system in
which a child rapist or a murderer is permitted to go free long
before a defendant who caused absolutely no damage at all. One of
the philosophical underpinnings for the enactment of the
Sentencing Guidelines was to create a system in which the
increment of the harm corresponds to the increment of punishment.
United States v. Martinez-Rios, 143 F.2d 662, 669-70 (2d Cir.
1998). Causing only property damage by using a crude, homemade
"Molotov cocktail" does not warrant thirty-seven years of
imprisonment. The increment of harm in this case bears no
rational relationship to the increment of punishment which this
Court must impose.
Based on the foregoing discussion, it is hereby
ORDERED, that Hildenbrandt's objections to the mandatory
minimum sentences in this case are DENIED; and it is further
ORDERED, that the mandatory minimum sentences will be imposed
in accordance with applicable law; and it is further
ORDERED, that the Clerk serve a copy of this order on all