The opinion of the court was delivered by: Diamond, J.
The Third Circuit has determined that since entering into a Plea Agreement in 2002 with Defendant, Raymond Shelton, the Government has repeatedly sought to evade the Agreement's restrictions respecting the sentence the Government may seek. The Circuit has thus twice remanded this matter to a new judge for resentencing in accordance with the Agreement. See United States v. Shelton, 91 Fed. Appx. 247, 249 (3d. Cir. 2004) (non-precedential) ("Shelton I"); United States v. Shelton, 179 Fed. Appx. 809, 813 (3d Cir. 2006) (non-precedential) ("Shelton II"). After the matter was remanded to me, I conducted a hearing on May 2 and December 19, 2008, and resentenced Defendant. In this Memorandum, I more fully set forth the bases for my sentencing decisions. See United States v. Vargas, 477 F.3d 94, 101 (3d Cir. 2007) ("[B]ecause district court judges render sentencing decisions orally and spontaneously from the bench after the presentation of numerous arguments, we do not expect them to deliver a perfect or complete statement of all of the surrounding law.") (internal quotations omitted).
In March 2002, the grand jury returned a seventeen count indictment against Defendant, charging him with drug and weapons offenses. In August 2002, Defendant agreed to plead guilty to: (1) conspiracy to distribute MDMA (Count 1); (2) possession of firearms by a convicted felon and aiding and abetting (Counts 5, 8, 12); (3) possession and transfer of a machine gun and aiding and abetting (Count 11); and (4) conspiracy to possess and transfer a machine gun (Count 17). The Government agreed to seek dismissal of the remaining Counts.
A. The Parties' Guidelines Stipulations
In their written Plea Agreement, the Parties stipulated to the calculation of Defendant's base offense levels under the Sentencing Guidelines. With respect to Defendant's firearms offenses, the Parties stipulated to "a base offense level under the Sentencing Guidelines of 20." (Plea Agreement ¶ 8.b.) They further stipulated that the firearms offenses were subject to: 1) a two-level enhancement because one of the firearms had an obliterated serial number; and 2) another two-level enhancement because the offenses involved more than three but less than seven firearms. (Id.) With respect to the narcotics offense in Count I, the Parties stipulated to "a base offense level under the Sentencing Guidelines of 26 . . . subject to a two-level enhancement...because [it] involved possession of a dangerous weapon." (Id. ¶ 8.a.) The Parties further agreed that because Defendant had demonstrated an acceptance of responsibility and had timely pled guilty, he was entitled to a three-level reduction in his offense level. (Id. at ¶ 8c-d.)
The Parties reserved the right to "argue the applicability of any other provision of the Sentencing Guidelines, including offense conduct, offense characteristics, criminal history, [and] adjustments and departures." (Id. ¶ 8). They also agreed that "these stipulations are not binding upon either the Probation Department or the Court, and . . . the Court may make factual and legal determinations that differ from these stipulations and that may result in an increase or decrease in the Sentencing Guidelines range and the sentence that may be imposed." (Id.)
The Agreement provided that Defendant would cooperate with the Government's investigation of any crimes about which Defendant had knowledge. (Id. at ¶ 3.b.) The Government would then decide whether or not to file a § 5K1.1 motion for a downward departure based on substantial assistance. (Id. ¶ 3.k-l.)
Finally, the Agreement provided that: "The defendant may not withdraw his plea because the Court declines to follow any recommendation, motion or stipulation by the parties to this agreement. No one has promised or guaranteed to the defendant what sentence the Court will impose." (Id. at ¶ 7).
B. The August 2002 Plea Hearing
Defendant initially pled guilty before the Honorable Harvey Bartle, III. During his plea hearing, Defendant admitted that in addition to selling ecstasy worth thousands of dollars, he sold the following weapons to a Government informant: a Glock 10 mm handgun, a .380 caliber handgun with a fully loaded magazine and extra ammunition, an AB-10 handgun with an obliterated serial number, and an AK-47 type rifle capable of fully automatic fire, along with extra ammunition. (8/14/02 Tr. at 18-23.) Defendant also admitted that he had attempted to supply an undercover DEA agent with an "Uzi" automatic machine gun. (Id. at 22.)
During the plea hearing, the Government recited the terms of the Plea Agreement, including the stipulations, and stated that the Parties "recognize that these stipulations are not binding upon the Court or upon the Probation Department." (Id. at 9.) Defendant stated that he understood that Judge Bartle would "sentence [him] on the basis of [his] guilty plea and in accordance with the sentencing guidelines and other applicable law, but only after considering a presentence report." (Id. at 17 (emphasis added).) Defendant also acknowledged that the Court could sentence him to a more or less severe sentence than that provided by the Guidelines, and he would not be entitled to withdraw his guilty plea if the Court imposed a more severe sentence than he expected. (Id. at 25-26.)
C. The Presentence Investigation Report
At Judge Bartle's direction, the Probation Department prepared a PSI and a sentencing recommendation. Probation grouped the drug count and the firearms counts together pursuant to § 3D1.2(c), which provides that counts shall be grouped together "when one of the counts embodies conduct that is treated as a specific offense characteristic in, or other adjustment to, the guideline applicable to another of the counts." U.S.S.G. § 3D1.2(c) (2000 ed.). Probation then calculated Defendant's Guidelines range based on the firearms offenses, which it concluded comprised the most serious counts of the group. See U.S.S.G. § 3D1.3 (when counts are grouped together pursuant to § 3D1.2(a)-(c), the offense level applicable to the entire group is the highest offense level of the counts in the group). Contrary to the Parties' stipulation that the base offense level was 20, Probation determined that it was 26 because the offenses: 1) involved a firearm described in 26 U.S.C. § 5845(a) or 18 U.S.C. § 921(a)(30), and 2) were committed after Defendant sustained at least two felony convictions for crimes of violence. See U.S.S.G. § 2K2.1(a)(1) (2000 ed.). Probation then added the following enhancements: (1) two levels because the offenses involved five firearms; (2) one level ...