                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 18a0095n.06

                                          No. 17-3288


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                Feb 27, 2018
SYLVESTER COWAN                                         )
                                                                            DEBORAH S. HUNT, Clerk
                                                        )
       Petitioner-Appellant,                            )
                                                        )
                                                                ON APPEAL FROM THE
v.                                                      )
                                                                UNITED STATES DISTRICT
                                                        )
                                                                COURT     FOR      THE
UNITED STATES OF AMERICA,                               )
                                                                SOUTHERN DISTRICT OF
                                                        )
                                                                OHIO
       Respondent-Appellee.                             )
                                                        )
                                                        )

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
No. 17-3288
Cowan v. United States

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.




                                                 -2-
