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 )

SENTENCING MEMORANDUM

and

MOTION FOR DOWNWARD DEPARTURE

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

show the Court as follows:

Pursuant to USSG § 3B1.2(a), Defendant is entitled to a decrease in the offense level of 4

levels. This is a multi-defendant case involving 16 defendants, the seizure of more than a million

dollars in cash, and the movement of large quantities of drugs. Compared to the culpability of

other members of the conspiracy, Defendant was a minimal participant. Taking all of the

allegations of the indictment as true for the purposes of this objection, Defendant was a mere

street-level dealer, facilitating one distribution of 14.06 grams of cocaine base.

The United States Sentencing Commission, in its effort to reduce the disparity between

cocaine powder and cocaine base, has created a system in which the crack-to-powder ration

varies wildly from one offense level to the next. Worse yet, the ratio is the most severe for

Defendant. At offense level 38, for example, the ratio (crack:powder) is 33:1, at level 30, it is

70:1, and at Defendant’s base offense level – 24 – the ratio is a whopping 80:1. The lowest

disparity under the new scheme is 25:1. Fairness and sentencing uniformity demand that

Defendant’s base offense level be set at a level that reflects a 25:1 crack/powder ratio. That

would set Defendant’s BOL at 18 (5 (minimum level) x 25 = 125 g (powder); 125 g (powder =

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BOL 18). Even if the Court were to multiply the actual amount of cocaine base by 25, the result

would be a cocaine-powder-equivalent of 352 grams, putting the final guideline offense level at

22.

This reflects unsound judgment on the part of the Sentencing Commission within the

meaning of Rita v. U.S., 127 S.Ct. 2465, 2468 (2007), and cannot be reconciled with a rational

sentencing scheme.

Defendant asserts that he should be assigned a base offense level that reflects the lowest

guideline disparity available between crack and powder.

Particularly in view of the recent Supreme Court holdings released on December 10,

2007, in U.S. v. Kimbrough and U.S. v. Gall, Defendant asserts that a reduction of base offense

level from 24 to 18 is reasonable.

In Kimbrough, the Court held as follows:

We hold that, under Booker, the cocaine Guidelines, like all other Guidelines, are

advisory only, and that the Court of Appeals erred in holding the crack/powder

disparity effectively mandatory. A district judge must include the Guidelines

range in the array of factors warranting consideration. The judge may determine,

however, that, in the particular case, a within-Guidelines sentence is “greater than

necessary” to serve the objectives of sentencing. 18 U.S.C. § 3553(a) (2000 ed.

and Supp. V). In making that determination, the judge may consider the disparity

between the Guidelines’ treatment of crack and powder cocaine offenses.

Kimbrough v. U.S. 2007 WL 4292040, *5 (2007).

On the same day, the Gall Court relieved trial courts of the need to show “extraordinary”

circumstances in order to fashion a just sentence:

In reviewing the reasonableness of a sentence outside the Guidelines range,

appellate courts may therefore take the degree of variance into account and

consider the extent of a deviation from the Guidelines. We reject, however, an

appellate rule that requires “extraordinary” circumstances to justify a sentence

outside the Guidelines range. We also reject the use of a rigid mathematical

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formula that uses the percentage of a departure as the standard for determining the

strength of the justifications required for a specific sentence.

Gall v. U.S., 2007 WL 4292116, *6 (2007)

Most importantly, the Gall Court re-emphasized its holding in Rita that sentencing

considerations must start with computation of the guidelines, but not end there. The Court

directed that trial courts should give the parties a chance to argue their positions and should then

consider all of the factors set forth in 18 U.S.C. § 3553. In determining the final sentence,

however, the trial court “may not presume that the Guidelines range is reasonable.” Gall at *7.

Instead, he “must make an individualized assessment based on the facts presented.” Id.

With these cases, the Supreme Court has continued to reject a mechanical, arithmetical

approach to sentencing, a rejection that it had earlier recognized in Koon v. U.S., 518 U.S. 81,

113 (1996), when it held that “[i]t has been uniform and constant in the federal judicial tradition

for the sentencing judge to consider every convicted person as an individual and every case as a

unique study in the human failings that sometimes, mitigate, sometimes magnify, the crimes and

the punishment to ensue.” Post-Koon, there are virtually no limits on the number of potential

factors that may warrant a departure below guideline ranges.

Defendant also submits that the Court should not use Count 1 of the indictment to set his

maximum term of imprisonment. As Defendant and the government have agreed that the total

amount of cocaine base to be attributed to Defendant is 14.06 grams (representing his total stake

in the conspiracy), his maximum term should be read in accordance with 21 USC § 841(b)(1)(B),

providing for a range of 5-40 years.

Defendant has objected to the Probation Officer’s calculations to the extent that they end

in a factually absurd result in that the application of the guidelines to a case in which Defendant

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distributed 14.06 grams of cocaine base and immediately accepted his responsibility and

expressed remorse would result in his imprisonment of 262-327 months (before departure for

substantial assistance). Defendant appreciates the fact that the Probation Officer has applied

career offender rules to this case, but suggests that the result is not in keeping with this crime and

Defendant’s role in it.

Defendant respectfully requests that the Court sentence him to no more than 125 months,

reflecting a sentence that comports with 18 USC § 3553, and in particular the stricture that a

sentence be no grater than necessary “to reflect the seriousness of the offense, to promote respect

for the law, and to provide just punishment for the offense.”

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

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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

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