DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution is a motion filed by Petitioner Joseph Franklin Brown, Jr., to vacate, set aside, or correct sentence. (ECF No. 122). 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 granted in part and denied in part.
Petitioner was charged by an indictment filed November 17, 2008, with conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371 (count one); armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d) (count two); using, carrying, and brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (count three); possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1) (counts four and seven); evidence tampering, in violation of 18 U.S.C. § 1512(c); (count eight); and interstate transportation of stolen property, in violation of 18 U.S.C. § 2314 (counts nine and ten). He was appointed counsel pursuant to the Criminal Justice Act.
A. Plea Agreement
On April 8, 2009, Petitioner entered into an agreement with the government to plead guilty to counts one through four of the indictment. The parties stipulated that the adjusted offense level applicable to counts one and two was 32 and, as to count three, that "a mandatory minimum sentence of seven years imprisonment... [would] run consecutive to any other term[.]" (ECF No. 68 ¶ 6.b). With respect to count four, the parties disagreed regarding application of a sentencing enhancement under the Armed Career Criminal Act ("ACCA"). They agreed, however, that if Petitioner were deemed to be an armed career criminal at the sentencing hearing, "the offense level is 33, " and that if he were not "the base offense level is 20" and that "a 4-level enhancement pursuant to [U.S.S.G.] § 2K2.1(b)(6)" would apply. ( Id. at ¶ 6.c). "Because the counts of conviction group together, " the agreement summarized, "the adjusted offense level for Counts One, Two, and Four is 33 if the [Petitioner] is an [a]rmed [c]areer [c]riminal, and 32 otherwise." ( Id. at ¶ 6.d). Additionally, the government agreed to move for a onelevel reduction "in recognition of the [Petitioner's] timely notification of his intention to plead guilty" and not to oppose a defense request for two-level reduction based on acceptance of responsibility. ( Id. at ¶ 6.e). Petitioner further acknowledged his understanding that there was no agreement as to the applicable criminal history category, and that "his criminal history could alter his offense level if he is a career offender or if the instant offense was part of a pattern of criminal conduct from which he derived a substantial portion of his income." ( Id. at ¶ 7).
Notably, for present purposes, the agreement included a limited waiver of the right to appeal:
The [Petitioner] and [the government] knowingly and expressly waive all rights conferred by 18 U.S.C. § 3742 to appeal whatever sentence is imposed, including any fine, term of supervised release, or order of restitution and any issues that relate to the establishment of the advisory guidelines range, as follows: with respect to Counts One, Two, and Four, the [Petitioner] waives any right to appeal from any sentence within or below the adjusted base offense level of 29, and [the government] waives any right to appeal from any sentence within or above the adjusted base offense level of 30. With respect to Count Three, both parties waive any right to appeal from imposition of the mandatory minimum seven-year consecutive sentence. Nothing in this agreement shall be construed to prevent either the [Petitioner] or [the government] from invoking the provisions of Federal Rule of Criminal Procedure 35(a), and appealing from any decision thereunder, should a sentence be imposed that is illegal or that exceeds the statutory minimum allowed under the law or that is less than any applicable statutory mandatory minimum provision.
( Id. at ¶ 11).
Attached to the agreement was a stipulation of fact in which Petitioner acknowledged that, from 1991 to 2000, he incurred five separate convictions in Maryland state courts for offenses punishable by a term of imprisonment in excess of one year. He further acknowledged that, in the summer of 2008, he possessed multiple firearms despite the fact that he was prohibited from doing so due to his prior felony convictions. During the same time period, Petitioner devised a plan, along with co-defendants Quinita Ennis and William Johnson, to commit the armed robbery of a PNC Bank branch located in California, Maryland, the deposits of which were federally insured. Following a period of surveillance of a bank manager to determine the location of her residence and details of her daily schedule, the plan was executed on September 24, 2008. On that date, Ennis drove Petitioner and Johnson, who were masked and armed with a rifle owned by Petitioner, to the branch manager's home. The two men kidnapped the manager and her two minor children and forced the manager to drive them to the bank in her vehicle. At one point along the route, Petitioner exited the manager's vehicle and was picked up by Ennis, who was trailing in her car. Upon arrival at the bank, Johnson held one of the children hostage and demanded that the manager and other child enter the bank and return with money. The manager obtained approximately $169, 900 from the bank and returned to her vehicle alone, leaving the child that accompanied her inside with another bank employee. Johnson forced her to drive to an elementary school, where she and the remaining child were released. Johnson then abandoned the manager's vehicle in a nearby parking lot and was picked up by Petitioner and Ennis. Later that evening, Petitioner, Ennis, and Johnson, accompanied by a third man, drove to Atlantic City, New Jersey, for purposes of laundering the stolen currency. Thereafter, Petitioner buried the rifle, along with approximately $84, 000 in cash, in his backyard and attempted to burn the clothing and apparel worn on the date of the offenses. Following his arrest, Petitioner made voluntary statements to law enforcement officers, acknowledging his role in planning and executing the armed bank robbery.
Petitioner evidenced his agreement to these facts by signing the factual stipulation on April 8, 2009. On the same date, both he and his counsel separately signed the plea agreement, attesting that Petitioner had reviewed the document with counsel, that he understood and agreed to its content, and that he was "completely satisfied with the representation of [his] attorney." (ECF No. 68, at 10).
At his rearraignment on May 13, 2009, Petitioner was placed under oath and expressed his desire to plead guilty to counts one through four. He acknowledged his understanding of the charges to which he wished to plead guilty; the litany of rights he was required to waive as a result of that plea; and the maximum penalties provided by law for each offense. As to count four, the court explained:
The maximum possible penalty provided by law for that offense depends on whether you are considered to be an armed career criminal under 924(e). If you are, the maximum would be life in prison and there would be a 15 year mandatory minimum sentence... and an additional fine of... up to $250, 000. If you are not an armed career criminal, then the maximum sentence would be imprisonment for ten years followed by supervised release of up to three years.
(ECF No. 136, at 8). Petitioner confirmed his understanding of the maximum penalty applicable to each count. He further acknowledged that the court was not bound by the terms of the plea agreement and that, if his plea were accepted, he would not be permitted to withdraw it regardless of any determination made at sentencing. The court then reviewed the terms of the plea agreement; the prosecutor read aloud the stipulation of facts; and, after clarifying one point, Petitioner "agree[d] that all of th[o]se facts are true[.]" ( Id. at 22). He further agreed that he was "in fact guilty of each of the offenses in Counts One, Two, Three[, ] and Four of the Indictment[.]" ( Id. ).
While confirming Petitioner's understanding of the guideline stipulations contained in the plea agreement and that there was no agreement regarding the applicable criminal history category, the court advised that a career criminal designation could affect the applicable guidelines. The following colloquy ensued:
[DEFENSE COUNSEL]: I think it's accurate to say the parties have looked at this closely and have determined [that Petitioner] is not a career offender.
THE COURT: That's what you both agree or anticipate at this point, but what's important, Mr. Brown, is that I can't tell you right now what I'll find, because I don't have all of the information that I will need. And it's going to be up to me ultimately to decide what all of these factors are, what the guidelines are, what the sentencing range turns out to be. Do you understand that?
[PETITIONER]: Yes, ma'am.
THE COURT: I know the attorneys do the best job they can, but they can't guarantee anything, okay?
Now, the guidelines calculation, the parties agree that only those matters that are set forth in this agreement should be considered. That is, there are no other offense characteristics, guideline factors or any potential departures or other adjustments that are going to be raised or are in dispute. That means to me that both sides are giving up any right they might otherwise have to have me ...