                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 11a0128p.06

               UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                _________________


                                               X
                          Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                -
                                                -
                                                -
                                                    No. 09-6322
          v.
                                                ,
                                                 >
                                                -
                       Defendant-Appellant. -
 DEREK BENTON,
                                                -
                                               N
                  Appeal from the United States District Court
               for the Western District of Tennessee at Memphis.
         No. 08-20422-001—Jon Phipps McCalla, Chief District Judge.
                                Argued: March 9, 2011
                          Decided and Filed: May 17, 2011
    Before: BATCHELDER, Chief Judge; CLAY and SUTTON, Circuit Judges.

                                  _________________

                                       COUNSEL
ARGUED: Edwin A. Perry, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. R. Matthew Price, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF: Stephen B.
Shankman, April R. Goode, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Memphis, Tennessee, for Appellant. Jennifer Lawrence-Webber, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
                                  _________________

                                       OPINION
                                  _________________

       CLAY, Circuit Judge. Defendant Derek Benton appeals his conviction and
sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).
Benton argues that his prior state conviction for solicitation to commit aggravated assault
should not qualify as a “violent felony” under the Armed Career Criminal Act, 18 U.S.C.



                                            1
No. 09-6322        United States v. Benton                                         Page 2


§ 924(e)(1). Benton also alleges that the district court erred when it declined to allow
him to withdraw his guilty plea in order to pursue a suppression hearing.

       For the reasons set forth herein, we AFFIRM the decision of the district court.

                            FACTUAL BACKGROUND

       On September 26, 2008, Defendant Derek Benton was pulled over by police after
officers witnessed him run a red light. At the traffic stop, officers asked Benton for his
license, which Benton was unable to produce.

       Benton was placed in the rear of the patrol car while officers ran a background
check, which revealed that Benton was driving under a suspended license and that he
was wanted on an outstanding warrant. At that time, officers placed Benton under arrest.

       Officers then returned to the car and asked LaKeisha Small, Benton’s passenger,
to exit the vehicle. When Small exited, officers observed a loaded Smith & Wesson .45
caliber revolver on the passenger’s seat, which had been previously obscured by Small’s
body. Benton admitted to knowing that the revolver was in the car, but claimed that it
belonged to an acquaintance. Small told the officers that Benton asked her to hide the
revolver behind her body while the officers were approaching the vehicle.

       The Memphis Police Department towed the vehicle to the city lot and completed
an inventory. A subsequent check on the revolver revealed that it had been stolen in
1996. While detained in the police station, Benton made several phone calls, which were
recorded, wherein he admitted to possessing the firearm.

       On December 17, 2008, Benton was indicted on one charge of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g). On June 24, 2009, Benton
pleaded guilty, without the benefit of a plea agreement.

       Benton’s Presentence Investigation Report (“PSR”) calculated his base offense
level at 20, pursuant to United States Sentencing Guideline (“U.S.S.G.” or “Guidelines”)
§ 2K2.1. Under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) and
No. 09-6322           United States v. Benton                                                 Page 3


U.S.S.G. § 4B1.4, Benton’s offense level was adjusted to 33.1 Benton had a total of 6
criminal history points, which equated to a Criminal History Category III. Pursuant to
the ACCA, Benton’s criminal history category was adjusted to IV. Therefore, Benton’s
Guidelines range sentence was 188 to 235 months of imprisonment. Under the ACCA,
Benton was also subject to a statutory sentence of 15 years to life.

        The district court determined that Benton qualified for the ACCA enhancement
based on the following convictions: one case of aggravated assault, committed in 1989;
two cases of solicitation to commit aggravated assault (reduced from aggravated assault),
committed in 1990 and charged together in 1992; and five cases of aggravated assault,
committed in 1998 and charged together in 1999.

        Benton objected to the ACCA enhancement before the district court, arguing that
solicitation to commit aggravated assault is not a “violent felony” within the definition
of the ACCA and so should not be used as a predicate crime under the statute.

        On September 25, 2009, Benton filed a motion to withdraw his guilty plea. At
sentencing, on October 30, 2009, the district court denied the motion to withdraw the
plea, overruled the objection to the sentencing enhancement, and sentenced Benton to
180 months of incarceration. Benton then filed this timely appeal.

                                         DISCUSSION

I.      Motion to Withdraw Guilty Plea

        We review the district court’s denial of Benton’s motion to withdraw his plea for
abuse of discretion. United States v. Ellis, 470 F.3d 275, 280 (6th Cir. 2006). “A district
court abuses its discretion when it relies on clearly erroneous findings of fact, or when
it improperly applies the law or uses an erroneous legal standard.” United States v.
Lineback, 330 F.3d 441, 443 (6th Cir. 2003).




        1
          Absent the designation as an armed career criminal, Benton would have been subject to a two-
level enhancement because the firearm was a stolen weapon, and a three-level reduction for acceptance
of responsibility.
No. 09-6322        United States v. Benton                                            Page 4


       Under Federal Rule 11(d), 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). This Court
applies a seven-factor test when determining whether a defendant presents valid grounds
for plea withdrawal. We weigh the following:

       (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; (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.

United States v. Bashara, 27 F.3d 1174, 1181 (6th Cir. 1994); Ellis, 470 F.3d at 281.

       In providing a rationale for this test, we have emphasized that “the aim of the rule
is to allow a hastily entered plea made with unsure heart and confused mind to be
undone, not to allow a defendant to make a tactical decision to enter a plea, wait several
weeks, and then obtain a withdrawal if he believes he made a bad choice in pleading
guilty.” Bashara, 27 F.3d at 1181 (internal quotation marks omitted). We have also
noted that “‘[w]hen a defendant has entered a knowing and voluntary plea of guilty at
a hearing at which he acknowledged committing the crime, the occasion for setting aside
a guilty plea should seldom arise.’” Ellis, 470 F.3d at 280 (quoting United States v.
Morrison, 967 F.2d 264, 268 (8th Cir. 1992)).

       A.      Amount of Time Elapsed Between Plea and Motion to Withdraw

       Benton entered his guilty plea on June 24, 2009, and filed his motion to withdraw
on September 25, 2009—93 days later.          This Court has declined to allow plea
withdrawal when intervening time periods were as brief as one month. See, e.g.,United
States v. Valdez, 362 F.3d 903, 913 (6th Cir. 2004) (finding that an “unjustified 75-day
delay, alone, supported the court’s denial”); United States v. Smith, 46 F. App’x 247, 249
(6th Cir. 2002) (finding 113 day delay “excessive”); United States v. Jannuzzi, 2009 WL
No. 09-6322         United States v. Benton                                        Page 5


579331, *3 (6th Cir. 2009) (slip) (finding 30 day delay to be “at the boundary line
between what is acceptable and what is not”). The amount of time elapsed, therefore,
weighs against Benton.

        B.      Validity of Reason for Failure to Move Earlier in the Proceedings

        Benton argues that the significant delay in filing his motion to withdraw ensued
because, “while preparing for sentencing, Mr. Benton became aware of the then recently
released [Arizona v. Gant, 129 S. Ct. 1710 (2009)] decision and asked counsel whether
it might apply to the circumstances of his case.” (Def.’s Br. at 15.) Thereafter his
counsel “took time to review the circumstances of the case, perform research, and
consult with other attorneys in her office . . . .” (Id.)

        Though we recognize that defense counsel may have had to contend with
competing demands on her time and resources, we cannot excuse a delay of more than
three months in this case. Once Benton and his counsel became aware of new
developments that might be relevant to his case, it was incumbent upon them to take
action within a reasonable period of time. Therefore, while Benton may have had a valid
reason for not filing the motion immediately upon learning of the Supreme Court’s
decision in Gant, he does not present a valid excuse for the extended length of the delay.

        C.      Assertion of Innocence

        Benton makes no assertion of innocence. This factor, therefore, weighs against
Benton.

        D.      Circumstances Underlying the Guilty Plea

        Benton argues that he “should have been given the opportunity to withdraw his
plea to attempt a motion to suppress to argue Gant and then to respond to any arguments
the government might raise against same.” (Id. at 17-18.)

        The Supreme Court decided Arizona v. Gant, 129 S. Ct. 1710 (2009), on
April 21, 2009, approximately two months before Benton entered his plea in this case.
In Gant, the Supreme Court held that “[p]olice may search a vehicle incident to a recent
No. 09-6322         United States v. Benton                                          Page 6


occupant’s arrest only if the arrestee is within reaching distance of the passenger
compartment at the time of the search or it is reasonable to believe the vehicle contains
evidence of the offense of arrest.” Id. at 1714.

        Benton acknowledges that “[t]his Circuit has repeatedly frowned upon a practice
where a defendant makes a tactical decision to enter a plea, waits several weeks, and
then, believing he made a bad choice in pleading guilty, wants to withdraw the plea.”
(Def.’s Br. at 11 (citing United States v. Haygood, 549 F.3d 1049, 1052 (6th Cir. 2008).)
Yet this is just what Benton now argues that he should have been allowed to do.

        In so arguing, Benton claims neither “unsure heart” nor “confused mind,” but
instead requests withdrawal for strictly tactical reasons, which we have consistently
found impermissible. Thus, we also weigh this factor against Benton.

        E.      Background and Prior Experience with the Criminal Justice System

        Benton has an extensive history with the criminal justice system, with his first
serious offense occurring only two months after his eighteenth birthday. He has, since
then, accumulated a record that includes more than a dozen convictions, many of them
for quite serious offenses.

        It is both notable and commendable that Benton appears to have turned his life
around in the last ten years, and is now a married father and responsible small business
owner. Nonetheless, Benton’s present positive endeavors do not erase his prior
experience with the criminal justice system, which tends to show that Benton was
intimately familiar with the system and was aware of the ramifications of entering his
guilty plea.

        Benton now argues that he was confused when he pleaded guilty because he
“could not have known that he would be subjected to the ACCA’s statutory minimum
when he did not know that his conviction for solicitation to commit assault would be
counted as a predicate violent felony.” (Def.’s Br. at 19.) But it is clear from the record
that the district court correctly explained the potential penalties and sentences during the
Rule 11 plea colloquy, and that Benton unequivocally stated to the district court that he
No. 09-6322          United States v. Benton                                          Page 7


understood those penalties.        While Benton clearly expressed dissatisfaction and
disagreement with the fact that he would be sentenced under the ACCA, there is no
indication in the record that he was confused about the implications of his plea or the
basis of his sentence enhancement.

          Thus, we also weigh this factor against Benton.

          F.     Potential Prejudice to the Government

          “[T]he government is not required to establish prejudice that would result from
a plea withdrawal, unless and until the defendant advances and establishes a fair and just
reason for allowing the withdrawal.” Ellis, 470 F.3d at 286 (quoting United States v.
Spencer, 836 F.2d 236, 240 (6th Cir. 1987)). Here, because all preceding factors weigh
against Benton, the government is not required to show that it would be prejudiced by
withdrawal of the plea.

          G.     Summary

          Because all factors weigh against Benton, we find that the district court did not
abuse its discretion when it denied Benton’s motion to withdraw his guilty plea, as
Benton failed to show a fair and just reason why he should be allowed to do so.

II.       Armed Career Criminal Act Enhancement

          We review the district court’s determination that an offense constitutes a “violent
felony” under the Armed Career Criminal Act de novo. United States v. Gross, 624 F.3d
309, 322 (6th Cir. 2010) (citing United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.
2005)).

          “[I]n determining the nature of a defendant’s prior conviction, we apply a
‘categorical’ approach, meaning that we look at the statutory definition of the crime of
conviction, not the facts underlying that conviction, to determine the nature of the
crime.” United States v. Ford, 560 F.3d 420, 421-22 (6th Cir. 2009); see also Taylor v.
United States, 495 U.S. 575, 602 (1990). As an exception, “[i]f it is possible to violate
a criminal law in a way that amounts to a crime of violence and in a way that does not,
No. 09-6322            United States v. Benton                                           Page 8


we may look at the indictment, guilty plea and similar documents to see if they
‘necessarily’ establish the nature of the prior offense.” Ford, 560 F.3d at 422 (quoting
Shepard v. United States, 544 U.S. 13, 26 (2005)).

        A.         Statutory Framework

        The ACCA mandates a fifteen year minimum sentence for a defendant convicted
under 18 U.S.C. § 922(g), when that defendant has three or more prior convictions for
a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA
provides the following, two-prong definition of “violent felony”:

        (B) the term “violent felony” means any crime punishable by
        imprisonment for a term exceeding one year, or any act of juvenile
        delinquency involving the use or carrying of a firearm, knife, or
        destructive device that would be punishable by imprisonment for such
        term if committed by an adult, that--
                   (i) has as an element the use, attempted use, or threatened
                   use of physical force against the person of another; or
                   (ii) is burglary, arson, or extortion, involves use of
                   explosives, or otherwise involves conduct that presents a
                   serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2)(B).

        Pursuant to Tennessee law, a person commits aggravated assault when he
intentionally, knowingly or, in certain cases, recklessly commits an assault2 and either
“[c]auses serious bodily injury to another” or “[u]ses or displays a deadly weapon.”
Tenn. Code. Ann. § 39-13-102. Under the Tennessee Code, solicitation of a crime is
defined, in relevant part, as follows:


        2
            A person commits assault who:
                   (1) Intentionally, knowingly or recklessly causes bodily injury to
                   another;
                   (2) Intentionally or knowingly causes another to reasonably fear
                   imminent bodily injury; or
                   (3) Intentionally or knowingly causes physical contact with another
                   and a reasonable person would regard the contact as extremely
                   offensive or provocative.
Tenn. Code Ann. § 39-13-101.
No. 09-6322           United States v. Benton                                                    Page 9


         (a) Whoever, by means of oral, written or electronic communication,
         directly or through another, intentionally commands, requests or hires
         another to commit a criminal offense, or attempts to command, request
         or hire another to commit a criminal offense, with the intent that the
         criminal offense be committed, is guilty of the offense of solicitation.

Tenn. Code Ann. § 39-12-102.

         Whether solicitation to commit aggravated assault constitutes a “violent felony”
under the ACCA is a question of first impression in this Circuit. It has already been
established that the crime of aggravated assault has as an element the use or threat of
force, and therefore qualifies as a “violent felony” for ACCA purposes.3 The initial
question we must address, then, is whether solicitation of aggravated assault carries with
it the “use of force” element of the greater offense.

         B.       Element of the Use, Attempted Use, or Threatened Use of Physical
                  Force
         Benton argues that “all that is required [for solicitation] is some form of
communication. As such, it does not meet the narrow definition of ‘use, attempted use
or threatened use of physical force against another.’”                     (Def.’s Br. at 23-24.)
Furthermore, Benton reasons that “it cannot be said that solicitation is the legal
equivalent of aggravated assault,” because the Tennessee Code classifies solicitation “as
a less serious offense than the actual crime committed.” (Id. at 24-25.)

         The government counters that “[w]hile it is true that [Benton] did not plead to an
aggravated assault, the fact that the conviction was for solicitation does not strip the
violent nature of the crime, or dispel the fact that . . . force was used against another
person which caused serious bodily injury to another.” (Pl.’s Br. at 27.)

         The government’s argument is inconsistent with the categorical approach
expounded in Taylor. Under this approach, we may only look to the statutory elements
of the crime to which the defendant actually pleaded. Therefore, we are barred from

         3
           See, e.g., United States v. Matthews, 278 F.3d 560, 563 (6th Cir. 2002) (holding that reckless
aggravated assault counts as a violent felony under the ACCA); see also Johnson v. United States,___ U.S.
___, 130 S. Ct. 1265, 1271 (2010) (holding that under the ACCA “the phrase ‘physical force’ means
violent force—that is, force capable of causing physical pain or injury to another person”).
No. 09-6322         United States v. Benton                                         Page 10


considering the individual circumstances of Benton’s crime for the purposes of the
current inquiry. Nor can we, in determining whether a conviction was for a “violent
felony,” favor the originally charged offense over the offense to which Benton
eventually pleaded. See Taylor, 495 U.S. at 601-02.

        Under the Tennessee Code, solicitation of a crime is an offense that is distinct
from both criminal attempt and conspiracy, and is charged as “an offense two
(2) classifications lower than the most serious offense solicited, unless the offense
solicited was a Class B or C misdemeanor, in which case the solicitation would not be
an offense.” Tenn. Code Ann. § 39-12-107(b). Solicitation is also distinguished from
criminal responsibility, under which theory a defendant may be charged with an offense
if, “[a]cting with intent to promote or assist the commission of the offense, or to benefit
in the proceeds or results of the offense, the person solicits, directs, aids, or attempts to
aid another person to commit the offense.” Tenn. Code Ann. § 39-11-402(2).

        Because solicitation is distinct from criminal responsibility (and so is not charged
as the offense itself) and is considered a lesser offense than the offense solicited, it is
apparent that the Tennessee legislature considered solicitation to be both different from,
and of a lower degree of criminal culpability than, the offense solicited. Of course,
“whether a prior conviction is a crime of violence is a matter of federal law,” not state
law, United States v. Anglin, 601 F.3d 523, 527 (6th Cir. 2010), and the state
legislature’s treatment of the law is informative but not dispositive. Because aggravated
assault constitutes a “violent felony”, it does not automatically mean that solicitation
constitutes the same.

        We find that a plain reading of the statutory definition of solicitation to commit
aggravated assault yields the conclusion that it does not require as an element “the use,
attempted use, or threatened use” of force. Rather, it has as an element the “command,
request or hire” of another to employ such force. Because the crime of solicitation to
commit aggravated assault is at least one step removed from the requisite level of force
contemplated in § 924(e)(2)(B)(1) of the ACCA, it does not qualify as a “violent felony”
under the first prong of the definition.
No. 09-6322          United States v. Benton                                       Page 11


          C.     Otherwise Presents a Serious Potential Risk of Physical Injury

          The Supreme Court has explained that the residual clause of the ACCA,
§ 924(e)(2)(B)(2), is not intended as a catch-all provision. Instead, “the provision’s
listed examples—burglary, arson, extortion, or crimes involving the use of
explosives—illustrate the kinds of crimes that fall within the statute’s scope. Their
presence indicates that the statute covers only similar crimes, rather than every crime
that ‘presents a serious potential risk of physical injury to another.’” Begay v. United
States, 553 U.S. 137, 142 (2008).

          Following from this logic, the Supreme Court limited offenses encompassed by
§ 924(e)(2)(B)(2) to “crimes that are roughly similar, in kind as well as in degree of risk
posed, to the examples themselves.” Id. at 143. Applying this limitation to the facts of
Begay, the Supreme Court held that “a prior record of DUI [driving under the influence],
a strict liability crime, differs from a prior record of violent and aggressive crimes
committed intentionally such as arson, burglary, extortion, or crimes involving the use
of explosives. The latter are associated with a likelihood of future violent, aggressive,
and purposeful ‘armed career criminal’ behavior in a way that the former are not.” Id.
at 148.

          Clearly, whether an offense involves “violent, aggressive, and purposeful”
conduct is not the only point of comparison that we may consider when determining
whether an offense is similar in kind and degree to the listed examples. See id. at 144.
Instead, Begay additionally directs us to look to whether the offense “conduct is such
that it makes more likely that an offender, later possessing a gun, will use that gun
deliberately to harm a victim.” Id. at 145-46.

          We have translated Begay into a two-part test, which requires that an offense, to
be considered a “violent felony” under the second prong of the ACCA, “(1) poses a
serious potential risk of physical injury to others; and (2) involves the same kind of
purposeful, violent, and aggressive conduct as the enumerated offenses of burglary,
arson, extortion, or offenses involving the use of explosives.” United States v. Young,
580 F.3d 373, 377 (6th Cir. 2009).
No. 09-6322         United States v. Benton                                        Page 12


        Benton argues that “solicitation simply does not involve violent force,” and
cannot therefore present a risk of physical injury. We disagree. While solicitation to
commit aggravated assault may not directly cause physical injury, it does create a
heightened and serious potential risk of the occurrence of physical injury. Cf. Lorillard
Tobacco Co. v. Reilly, 533 U.S. 525, 579 (2001) (Thomas, J., concurring) (identifying
“[t]he harm that the State seeks to prevent” in criminalizing solicitation of a crime as
“the harm caused by the unlawful activity that is solicited”).

        Solicitation also involves purposeful conduct, requiring as an element that the
perpetrator act “with the intent that the criminal offense be committed.” Tenn. Code
Ann. § 39-12-102. Because solicitation to commit aggravated assault requires intent that
serious bodily injury be caused, or a deadly weapon be used, it also meets the criteria of
“violent and aggressive conduct.”

        Furthermore, solicitation to commit aggravated assault is exactly the kind of
conduct that “makes [it] more likely that an offender, later possessing a gun, will use that
gun deliberately to harm a victim.” See Begay, 553 U.S. at 146. Because the crime is
of the type that may be committed by encouraging the use or brandishing of a gun, it
clearly falls within the purview of the types of crimes to which the ACCA was intended
to apply.

        We therefore hold that the Tennessee state offense of solicitation to commit
aggravated assault “involves conduct that presents a serious potential risk of physical
injury to another,” and “involves the same kind of purposeful, violent and aggressive
conduct as the enumerated offenses.” It therefore qualifies as a “violent felony” under
§ 924(e)(2)(B)(2) of the ACCA. See Young, 580 F.3d at 377. Thus, we find that the
district court did not err when it determined that Benton’s prior state conviction for
solicitation to commit aggravated assault constituted a “violent felony” under the ACCA.
No. 09-6322        United States v. Benton                                       Page 13


                                    CONCLUSION

       The district court did not abuse its discretion when it denied Defendant’s motion
to withdraw his guilty plea, nor did it err when it determined that the Tennessee state
offense of solicitation to commit aggravated assault qualifies as a “violent felony” under
the Armed Career Criminal Act. We hereby AFFIRM the decision of the district court.
