Sylvester Cowan v. United States of America

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0095n.06
No. 17-3288
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SYLVESTER COWAN
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
SOUTHERN DISTRICT OF
OHIO
BEFORE: BOGGS, BATCHELDER, and THAPAR, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Sylvester Cowan appeals the district
court’s dismissal of his collateral attack on his 2003 sentence for federal bank-robbery offenses.
The sentencing court arrived at Cowan’s sentence after finding that both Cowan’s four instant
offenses and at least two prior offenses qualified as “crimes of violence.” Cowan was adjudged
a career offender under the career-offender provision of the then-mandatory Sentencing
Guidelines. After having served nearly fourteen years of his sentence, Cowan challenges his
sentence under 28 U.S.C. § 2255 on the grounds that the Supreme Court’s decision in Johnson v.
United States, 135 S. Ct. 2551 (2015) renders his current sentence unlawful and entitles him to
resentencing.
As a threshold matter, 28 U.S.C. § 2255(f) requires that collateral attacks be timely. To
satisfy this requirement, Cowan must have filed his claim within one year, running from, as
relevant here, “the date on which the right asserted was initially recognized by the Supreme

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Court, if that right has been newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3).
Cowan filed his claim on June 9, 2016—within one year of the Supreme Court’s decision
in Johnson. His motion for relief, however, remains untimely under § 2255(f)(3) because this
circuit has explicitly held that Johnson did not recognize a right that applies to Cowan’s
situation—a sentence under the pre-Booker Sentencing Guidelines. In Raybon v. United States,
867 F.3d 625 (6th Cir. 2017), we held that a Johnson-based collateral attack of a pre-Booker
sentence was untimely “because the Supreme Court has not decided whether the residual clause
of the mandatory Sentencing Guidelines is unconstitutionally vague.” Id. at 630-31 (citation and
alteration omitted)).
Cowan acknowledges Raybon but argues that it was wrongly decided. Whatever merits
Cowan’s argument may have, it cannot prevail before this panel because “only the en banc
process, a material intervening Supreme Court decision, or a relevant change to the Guidelines
permits us to override binding circuit precedent.” United States v. Verwiebe, 874 F.3d 258, 262
(6th Cir. 2017). None of these bases for deviating from binding circuit precedent is available
here. See e.g., Gipson v. United States, No. 17-5333, 2018 WL 739382, at *1 (6th Cir. Feb. 7,
2018).
Accordingly, we affirm the judgment of the district court.

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