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July 6, 2005.


The opinion of the court was delivered by: LAWRENCE KAHN, District Judge


I. Background

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 sentence.

  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 Cir. 1991).

  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 1005.

  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 ...

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