U.S. v. Benton

• Decision Date: 17 May 2011
• Docket Number: No. 09–6322.,09–6322.
• Citation: 639 F.3d 723
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Derek BENTON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

639 F.3d 723

UNITED STATES of America, Plaintiff–Appellee,

v.Derek BENTON, Defendant–Appellant.

No. 09–6322.

United States Court of Appeals, Sixth Circuit.

Argued: March 9, 2011.Decided and Filed: May 17, 2011.

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.Before: BATCHELDER, Chief Judge; CLAY and SUTTON, Circuit Judges.

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. § 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 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).

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 Fed.Appx. 247, 249 (6th Cir.2002) (finding 113 day delay “excessive”); United States v. Jannuzzi, 2009 WL 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, ––– U.S. ––––, 129 S.Ct. 1710, 173 L.Ed.2d 485 (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, ––– U.S. ––––, 129 S.Ct. 1710, 173 L.Ed.2d 485 (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 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...