Sixth Circuit Holds that Solicitation to Commit Aggravated Assault Qualifies as Violent Felony for Armed Career Criminal Act

• US v. DEREK BENTON

Today the Sixth Circuit holds 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.”  Therefore, the Court finds it qualifies as a “violent felony" under the Armed Career Criminal Act (ACCA).


In this case out of the Western District of Tennessee, Derek Benton appeals his conviction and sentence for being a felon in possession of a firearm; and, specifically the enhancement he received as a result of his prior conviction in state court for solicitation to commit aggravated assault.


The ACCA sets a fifteen year minimum sentence for any person convicted of being a felon in possession of a firearm if that person also has three or more prior convictions for a violent felony. 


Whether solicitation to commit aggravated assault constitutes a “violent felony” under the ACCA is a question of first impression in the Sixth Circuit in this case.  Because the crime involves conduct that presents a serious potential risk of physical injury it qualifies just as if it were an actual aggravated assault.  Benton's sentence of 180 months was affirmed.