The opinion of the court was delivered by: Deborah K. Chasanow United States District Judge
Presently pending and ready for resolution is a motion filed by Petitioner Kenneth Cortez Minor to vacate, set aside, or correct his sentence. (ECF No. 342). The relevant issues have been briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the motion will be denied.
By an indictment filed January 23, 2006, Petitioner was charged with conspiracy to distribute and possess with intent to distribute 500 grams or more of cocaine. He subsequently entered into a plea agreement with the government. Attached to the written agreement was a stipulation of facts, which described, inter alia, the circumstances of Petitioner's arrest:
On February 2, 2006, law enforcement officers entered Kenneth Minor's residence at 1620 Hamlin St., N.E., Washington, D.C., to execute a search warrant. As members of the Metropolitan Police Department ascended the stairs and approached Minor's bedroom, Kenneth Minor fired two shots from a Highpoint Luger 9mm handgun toward the closed door of his bedroom. One round lodged in the door frame and the other round penetrated the door and lodged in the stairway wall. Officers did not return fire, and Minor barricaded himself inside the bedroom for approximately 1 1/2 hours before surrendering. (ECF No. 199, Ex. A, at 1). Petitioner signed the statement of facts, acknowledging that he had "carefully reviewed" it with his attorney and that it was "true and correct." (Id. at 2). The parties further stipulated to a base offense level of 30, which, they proposed, would be increased two levels for possession of a dangerous weapon, and six levels, pursuant to U.S.S.G. § 3A1.2(c)(1), "because, during the course of the offense, [Petitioner] knowingly assaulted law enforcement officers in a manner creating a substantial risk of serious bodily injury." (ECF No. 199, at 4).*fn1 By separately signing the plea agreement, Petitioner acknowledged that he had "carefully reviewed every part of it with [his] attorney"; that he understood and "[did] not wish to change any part" of the "Factual and Advisory Guidelines Stipulation"; and that he was "completely satisfied" with his counsel's representation. (Id. at 8).
At the Rule 11 hearing, Petitioner was placed under oath and acknowledged his understanding of the charge against him and the litany of rights he was required to waive by pleading guilty. He confirmed his awareness that the court was not bound by the terms of the parties' agreement, and that, if his plea were to be accepted, he "[would] not be allowed to withdraw [it] no matter what decisions [were made] at the time of sentencing." (ECF No. 270, at 10). The court reviewed the content of the written plea, in detail, emphasizing that it was "very important that [he] understand all of its terms." (Id.). After the prosecutor read the statement of facts into the record, Petitioner confirmed that it was accurate and agreed that he was guilty as charged. (Id. at 14-15). The court explained the parties' stipulations regarding the advisory guideline factors, and Petitioner indicated that he understood. (Id. at 16-19). After further affirming that, aside from the written plea agreement, no other promises or inducements had been made, Petitioner stated that he had met with his attorney on two occasions to discuss the plea, that counsel had answered all of his questions, and that he was satisfied with his representation. Based on these sworn statements, the court accepted Petitioner's guilty plea, finding that it was entered into knowingly, voluntarily, and intelligently, and that there was an adequate factual basis.
At the sentencing hearing on December 3, 2007, the court adopted the parties' recommendation of an adjusted offense level of 35 and determined Petitioner was in criminal history category I, resulting in a guideline range of between 168 and 210 months. (ECF No. 271, at 5). In arguing for the maximum term under the guidelines, the government expanded upon the facts set forth in the statement of facts related to Petitioner's arrest:
[W]hen law enforcement officers went to his residence to execute a search warrant, they knocked very loudly on that door. They entered the door. They had announced their presence loudly, and Mr. Minor chose to shoot at them through his bedroom door. . . . Mr. Minor then, probably in a moment of panic, decided to call 911 and report that someone had broken into his house. Clearly the officers had knocked and announced loudly. The 911 [operator] said, sir, they're law enforcement officers. They're there executing a search warrant. Stop. He barricades himself in his house, despite that information, for over an hour and a half, creating even more danger to the officers who were on the scene. (Id. at 8). The prosecutor asserted that "the barricade situation" was "not fully accounted for with just the six-level increase" and that a sentence at the high end of the range was, therefore, warranted. (Id. at 8-9).
In opposing the government's argument, defense counsel cited testimony by Petitioner's wife at a pre-trial detention hearing that the arrest "was a very chaotic event and that she had no recollection of the police clearly identifying themselves until afterward[;] . . . in fact, the police officers, with respect to their interaction with Ms. Minor, actually identified themselves at the point of a gun." (Id.).*fn2 Defense counsel maintained that the guideline range agreed to by the parties had accounted for Petitioner's conduct at the time of arrest and that "the Government should be restrained by their own agreement[.]" (Id. at 10).
Thereafter, as the court explained the rationale for the sentence it would impose, Petitioner interrupted:
On the incident that keeps stating that I knew it was a police officer, in that case I dialed 911 twice. I stated -- I stayed on the phone with them approximately -- feels like it was about -- about 10, 15 minutes apiece. I stated over and over again where are you located? Officer, where are you located? They kept stating that we're on our way. We're on our way. I said I think my family is in danger. Some intruders [are] inside the house. Stay on the phone with us. Stay on the phone with us. The phone hangs up.
I dialed 911 again. Get another dispatcher. He said the same thing. The police is on their way. We got the other call. The police is on their way. Just stay on the phone with us.
I'm busy trying to figure out, well, who is this inside the house if they keep saying the police is on their way[?]
(Id. at 18-19). The court responded that, despite what may have occurred at a prior hearing, [t]he plea here agrees that he shot through the door while the officers were going upstairs. . . . [There were] other people on the other side getting shot at even if you didn't know for sure [that they] were police officers. But what the guideline says is that you have reason to know that they are police officers. And here, both because of the knock and announce, as well as the 911 call, . . . you were told, and maybe you were too caught up in it to hear what was available, but you did acknowledge responsibility for that conduct in that fashion as part of the plea, and we're not going behind that at this point. (Id. at 20-21). After addressing additional ...