IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

UNITED STATES OF AMERICA )

)

vs. ) Criminal Case No. 2:06-CR-169-WKW

)

WILMONT TIMOTHY BARNETT )

MOTION TO WITHDRAW GUILTY PLEA

COMES NOW Defendant Wilmont Timothy Barnett, by and through counsel, and would

show the Court as follows:

Defendant has entered a plea of guilty to Counts 1 and 8 of the indictment in this case. 

Count 1 alleges a conspiracy to possess with intent to distribute and distribute a controlled

substances. That Count carries a penalty of 10 years to Life. Count 8 alleges distribution of a

controlled substance, with a statutory penalty of 5-40 years.

The facts of this case, as asserted by the government, are that Defendant was arrested

following a controlled buy of crack cocaine in the amount of 14.06 grams. In the alleged

conspiracy, he was simply a street-level dealer. Upon his arrest, Defendant immediately accepted

responsibility for his acts and began to cooperation with the government, which cooperation was

certified to have been substantial.

During plea negotiation with the government, it was agreed that the amount of crack

attributable to Defendant would be the 14.06 grams involved in the control buy. The parties

contemplated that Defendant’s sentence would be computed on that basis, with adjustments for

acceptance of responsibility and substantial assistance.

Defendant’s counsel noted that the government had not filed an information with the

court under 21 USC § 851 stating the previous convictions to be relied upon, but counsel did not

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anticipate the United States Probation Officer’s application of U.S.S.G. § 4B1.1, thus did not

counsel Defendant about it.

The Presentence Investigation Report contemplates the fact of engagement in the

conspiracy to boost the statutory maximum for the offense to Life, whereas under Count 8 alone,

the statutory maximum would be 40 years. Because of the interplay of the career offender

provisions of U.S.S.G. § 4B1.1(a), Defendant is now looking at a Criminal History Category of

VI and a Base Offense Level of 37. Without the consideration of Count 1, the Base Offense

Level would be 34. Neither Defendant nor – it is suggested – the government contemplated the

effect of Count 1 on the final guideline range; nor would it have had an effect save for the

application of the career offender guideline. Defendant was simply unaware of the enhanced

penalties he faced as a result of the application of the career offender guideline.

Defendant is cognizant of the fact that the granting or denial of a motion to withdraw a

guilty plea is within the sound discretion of the trial court; however, “[a] defendant may

withdraw a plea of guilty ... after the court accepts the plea, but before it imposes sentence if ...

the defendant can show a fair and just reason for requesting the withdrawal.” Fed.R.Crim.P.

11(d)(2)(B).

To determine whether a defendant has shown a “fair and just reason,” a district court may

consider the totality of the circumstances surrounding the plea, including the following factors:

“(1) whether close assistance of counsel was available; (2) whether the plea was knowing and

voluntary; (3) whether judicial resources would be conserved; and (4) whether the government

would be prejudiced if the defendant were allowed to withdraw his plea.” U.S. v. Cambronne,

2008 WL 194913, *1 (11th Cir., 2008), quoting United States v. Buckles, 843 F.2d 469, 471-72

(11th Cir.1988).

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In this case Defendant avers that the plea was not knowing an voluntary because he was

not properly advised of the maximum sentence he could receive under the plea agreement. 

Moreover the government will not be prejudiced if Defendant were allowed to withdraw his plea.

RESPECTFULLY SUBMITTED, this __30th__ day of January, 2008.

/s/ JAY LEWIS

Law Offices of Jay Lewis, L.L.C.

P.O. Box 5059

Montgomery, Alabama 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

ASB-2014-E66J

Attorney for Defendant

Case 2:06-cr-00169-WKW-SRW Document 542 Filed 01/30/2008 Page 3 of 4
CERTIFICATE OF SERVICE

I hereby certify that on the _30th_ day of January, 2008, I transmitted the foregoing to the

United States Probation Officer and to the following parties or counsel by facsimile transmission:

A. Clark Morris

Office of the United States Attorney

One Court Square, Suite 201

Montgomery, AL 36104

/s/ JAY LEWIS

Law Offices of Jay Lewis, L.L.C.

P.O. Box 5059

Montgomery, Alabama 36103

(334) 263-7733 (Voice)

(334) 832-4390 (Fax)

J-Lewis@JayLewisLaw.com

ASB-2014-E66J

Attorney for Defendant

Case 2:06-cr-00169-WKW-SRW Document 542 Filed 01/30/2008 Page 4 of 4