                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 07a0399n.06
                             Filed: June 14, 2007

                                            No. 06-3754

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellee,                         )
                                                   )
v.                                                 )   ON APPEAL FROM THE UNITED
                                                   )   STATES DISTRICT COURT FOR THE
KENYATTA JACKSON,                                  )   SOUTHERN DISTRICT OF OHIO
                                                   )
       Defendant-Appellant.                        )




       Before: ROGERS and COOK, Circuit Judges; and DOWD, District Judge.*


       COOK, Circuit Judge. Kenyatta Jackson pleaded guilty to one count of possessing with

intent to distribute more than five grams of crack cocaine, in violation of 21 U.S.C. § 841(a) and

(b)(1)(B)(iii), and to one count of possession of a firearm in furtherance of a drug trafficking crime,

in violation of 18 U.S.C. § 924(c)(1)(A)(i). Jackson appeals the district court’s denial of his motion

to withdraw his guilty plea and his motion to suppress his post-Miranda confession. We affirm.


                                                   I




       *
       The Honorable David Dudley Dowd, Jr., Senior United States District Judge for the
Northern District of Ohio, sitting by designation.
No. 06-3754
U.S. v. Jackson


       Jackson went to the Westside Child Daycare Center and handed a box to a school employee

for safekeeping. The employee opened the box, saw a gun inside, closed it, and called the Columbus

police. Jackson saw the officers arrive and ran to the basement to hide. He hid a bag of crack

cocaine and his gun there before attempting to leave the school. The police caught Jackson, arrested

him, and placed him in a police cruiser. They searched the school and found the loaded gun and

crack in the daycare basement.


       While in the back of the police cruiser, Officer Christine Nemchev told Jackson, who had

yet to be given his Miranda warnings, that he might as well come clean. Jackson told the officer that

the school employee had no right to look in the box he gave her. Two hours later, the Columbus

Police Department’s (CPD) liaison to the ATF, Brett Slaughter, and an ATF special agent, Beth

Dallas, interviewed Jackson at CPD headquarters. They first advised him of his Miranda rights and,

after he waived them, ensured that the waiver was knowing and voluntary. Jackson confessed to

Dallas and Slaughter and indicated his desire to cooperate with law enforcement. After he was

indicted, Jackson moved to suppress the statements in the cruiser and his confession to Dallas and

Slaughter. The district court granted his motion with respect to the cruiser statements and denied

it with respect to his confession.


       Jackson initially pleaded not guilty, but later accepted a charge bargain. He entered an

unconditional plea to possessing crack with intent to distribute and possessing the gun in furtherance

of a drug trafficking crime. After Jackson pleaded guilty, his counsel moved to withdraw, and he


                                                -2-
No. 06-3754
U.S. v. Jackson


was appointed new counsel. Before sentencing, he moved to withdraw his guilty plea. The district

court denied the motion, finding that Jackson had failed to establish a fair and just reason under

Rule 11(d)(2)(B), and sentenced him to 120 months. He now appeals both the denial of his motion

to suppress and the denial of his motion to withdraw his plea.


                                                  II


       We review a “district court’s denial of a motion to withdraw a guilty plea for abuse of

discretion.” United States v. Dixon, 479 F.3d 431, 436 (6th Cir. 2007) (citing United States v. Pluta,

144 F.3d 968, 973 (6th Cir. 1998)). After the district court accepts the plea, a defendant may

withdraw that plea before he is sentenced only if he “can show a fair and just reason for requesting

the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B); see United States v. Quinlan, 473 F.3d 273, 276 (6th

Cir. 2007). Jackson bears the “burden to demonstrate that proper grounds exist for the granting of

such a motion.” Dixon, 479 F.3d at 436 (citing United States v. Triplett, 828 F.2d 1195, 1197 (6th

Cir. 1987)).


       We look to seven factors when deciding whether a defendant can provide a “fair and just”

reason for withdrawing his plea:


       (1) the amount of time that elapsed between the plea and the motion to withdraw it;
       (2) the presence (or absence) of a valid reason for the failure to move for withdrawal
               earlier in the proceedings;
       (3) whether the defendant has asserted or maintained his innocence;


                                                -3-
No. 06-3754
U.S. v. Jackson


       (4) the circumstances underlying the entry of the guilty plea;
       (5) the defendant’s nature and background;
       (6) the degree to which the defendant has had prior experience with the criminal
               justice system; and
       (7) potential prejudice to the government if the motion to withdraw is granted.


Dixon, 479 F.3d at 436 (quoting Pluta, 144 F.3d at 973); accord Quinlan, 473 F.3d at 276-77;

United States v. Ellis, 470 F.3d 275, 281 (6th Cir. 2006); United States v. Bashara, 27 F.3d 1174,

1181 (6th Cir. 1994). Although the district court used a five-factor test, see, e.g., United States v.

Riascos-Suarez, 73 F.3d 616, 621 (6th Cir. 1996), the two tests are virtually identical, and we will

apply the seven-factor test set forth above.


       Jackson’s primary reason for asking the court to allow him to withdraw his plea is rooted in

the fourth factor—circumstances underlying the plea. He argues that the district court erred by

misstating the § 924(c) elements during the plea colloquy when it explained, “Count 2, the charge

of possession of a firearm in furtherance of a drug trafficking crime, the elements are as follows:

first that you knowingly possessed a firearm, and, second, the possession was in furtherance of or

was possessed to aid in the commission of a drug trafficking crime . . . .”


       Section 924(c) prohibits using a firearm in furtherance of a drug trafficking crime or carrying

a firearm during and in relation to a drug trafficking offense. United States v. Combs, 369 F.3d 925,

932 (6th Cir. 2004). Jackson argues that the district court’s adding of the phrase “aid in the

commission of” erroneously described the § 924(c) elements. The government counters that the

                                                -4-
No. 06-3754
U.S. v. Jackson


phrase merely defines “in furtherance of.” We have interpreted “in furtherance of” to require a

specific nexus between the gun and the crime charged. See, e.g., Combs, 369 F.3d at 933; United

States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001). The gun must advance, promote, or facilitate

the crime. See Mackey, 265 F.3d at 461; United States v. Paige, 470 F.3d 603, 609 (6th Cir. 2006).

While § 924(c) does not read as the district court said, there seems little light between “aid” and

“furtherance” in this context, and any error strikes us as minor.


       Jackson does not allege any specific confusion as a result of the district court’s technical

misstatement of the § 924(c) elements. He does not explain what he thought “aid” meant and how

that might be different than “furtherance,” and, even assuming the district court’s recitation of the

§ 924(c) elements actually confused him, why he would have pleaded guilty to possessing a gun to

aid the commission of a drug offense but not to possessing a gun to further a drug offense.


       Nor should the district court’s misstatement be examined in a vacuum. The indictment

alleged that Jackson “did knowingly possess a firearm . . . in furtherance of a drug trafficking crime.”

During the plea colloquy, the district court asked Jackson whether he had been furnished with the

indictment, whether he understood the nature and meaning of the crimes, whether he discussed the

crimes with his attorney, and whether his attorney fully advised him of the nature and meaning of

the crimes. Jackson answered “yes” to each of these questions. He also admitted the factual basis

of the § 924(c) charge. Furthermore, in his plea agreement, Jackson agreed in writing to plead guilty

to “possession of a firearm in furtherance of a drug trafficking crime.”


                                                 -5-
No. 06-3754
U.S. v. Jackson


       Although we agree with Jackson that the district court should not have inserted the language

“to aid in the commission of,” his task is to provide us a reason to allow him to withdraw his plea.

We recognize the possibility of a district court so misstating the elements of a crime that a defendant

could rightly complain that he did not know to which offense he was pleading guilty. See United

States v. Gandia-Maysonet, 227 F.3d 1, 3-5 (1st Cir. 2000) (allowing a defendant to withdraw his

plea where the trial court repeatedly misstated the scienter element). The misstatement here was far

less serious than the one in Gandia, and Jackson has not shown how the district court’s alleged error

actually prejudiced him.1 Simply put, the circumstances underlying the plea do not warrant allowing

Jackson to withdraw it.


       The amount of time between Jackson’s entry of the plea and his motion to withdraw—forty

days—also militates against allowing withdrawal. Generally, the shorter a defendant’s delay

between entering a plea and moving to withdraw it, the more favorably disposed the court is to

withdrawal. Conversely, “a defendant’s reasons for [moving to withdraw a plea] will be more

closely scrutinized when he has delayed his motion for a substantial length of time.” Ellis, 470 F.3d


       1
         In his brief, Jackson mentioned Rule 11(b)(1)(G) (requiring district courts to explain “the
nature of each charge to which the defendant is pleading”), although he requested only that he be
allowed to withdraw his plea under Rule 11(d)(2)(B). At oral argument, Jackson’s counsel relied
primarily on Rule 11(b)(1)(G) and suggested relief under that section would be appropriate as well.
A defendant may request that an appellate court vacate a guilty plea for failure to comply with Rule
11(b). Jackson has not argued for such relief except cursorily. See Meridia Prods. Liab. Litig. v.
Abbott Labs., 447 F.3d 861, 868 (6th Cir. 2006) (declining to consider an inadequately developed
argument). That said, because Jackson failed to object contemporaneously, we would review for
plain error. United States v. McCreary-Redd, 475 F.3d 718, 721 (6th Cir. 2007). And given that we
find no prejudice, any Rule 11(b)(1)(G) error would not permit us to vacate Jackson’s plea.

                                                 -6-
No. 06-3754
U.S. v. Jackson


at 281 (quoting United States v. Baez, 87 F.3d 805, 808 (6th Cir. 1996)). Numerous decisions of this

court have found that delays on the order of forty days weigh against granting the motion to

withdraw. See, e.g., United States v. Valdez, 362 F.3d 903, 912 (6th Cir. 2004) (seventy-five days);

United States v. Durham, 178 F.3d 796, 798-99 (6th Cir. 1999) (seventy-seven days); Baez, 87 F.3d

at 808 (sixty-seven days); Bashara, 27 F.3d at 1181 (forty-six days); United States v. Goldberg, 862

F.2d 101, 104 (6th Cir. 1988) (fifty-five days); United States v. Spencer, 836 F.2d 236, 239 (6th Cir.

1987) (thirty-six days).


       None of the other Dixon factors supports allowing Jackson to withdraw his plea. Other than

a generalized complaint about his counsel, Jackson offers no specific reason why he failed to

withdraw his plea earlier. Furthermore, we will not read Jackson’s not-guilty plea as an assertion

of innocence within the meaning of the third factor. Finally, we note that Jackson’s lack of formal

education is not a reason to excuse a guilty plea, especially considering his veteran status with the

criminal justice system. And given that the first six factors weigh against allowing Jackson to

withdraw his plea, we need not consider the seventh factor—prejudice to the government. See

United States v. Lineback, 330 F.3d 441, 445 (6th Cir. 2003) (Gilman, J., concurring) (“[W]here a

defendant fails to show [a reason for withdrawing his plea], the court need not consider . . . whether

the withdrawal would prejudice the government.” (citing United States v. Alexander, 948 F.2d 1002,

1004 (6th Cir. 1991))).




                                                -7-
No. 06-3754
U.S. v. Jackson


         Jackson bears the burden to show a fair and just reason that would entitle him to withdraw

his guilty plea under Rule 11(d)(2)(B). We agree with the district court’s exercise of discretion here

in finding Jackson failed to carry his burden.


                                                  III


         Jackson also appeals the district court’s denial of his motion to suppress. Jackson, however,

did not enter a conditional guilty plea, Fed. R. Crim. P. 11(a)(2), which would have allowed him to

appeal “an adverse ruling on a pre-plea motion to suppress evidence.” United States v. Bell, 350

F.3d 534, 535 (6th Cir. 2003). Jackson waived his right to appeal this ruling, and we affirm on that

basis.


                                                  IV


         Because the district court properly denied Jackson’s motion to withdraw his guilty plea and

Jackson has waived his right to appeal the denial of the suppression motion, we affirm the judgment

of conviction.




                                                 -8-
