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
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 ...