                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 18a0388n.06

                                         No. 17-3976


                         UNITED STATES COURT OF APPEALS
                                                                                   FILED
                                                                              Aug 03, 2018
                              FOR THE SIXTH CIRCUIT
                                                                          DEBORAH S. HUNT, Clerk
 CHRISTOPHER L. PROWELL,                               )
                                                       )
        Petitioner-Appellant,                          )      ON APPEAL FROM THE
                                                       )      UNITED STATES DISTRICT
 v.                                                    )      COURT     FOR      THE
                                                       )      NORTHERN DISTRICT OF
 UNITED STATES OF AMERICA,                             )      OHIO
                                                       )
        Respondent-Appellee.                           )                OPINION
                                                       )



       BEFORE:       COOK, STRANCH, and NALBANDIAN, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Christopher Prowell appeals the district court’s

denial of his motion for resentencing brought pursuant to 28 U.S.C. § 2255. Because the relief

sought by Prowell is foreclosed by published circuit precedent, we AFFIRM.

                                   I.    BACKGROUND

       In 1999, Christopher Prowell pled guilty to six counts of bank robbery, in violation of

18 U.S.C. § 2113(a) and (d), and one count of brandishing a firearm in commission of an armed

bank robbery, in violation of 18 U.S.C. § 924(c)(1). Prowell was designated a career offender

based, in part, on a 1994 Alabama conviction for third-degree burglary, which at that time

constituted a crime of violence. As a result, he received an enhanced sentence of 272 months of

imprisonment under then mandatory Guidelines.

       In 2016, Prowell moved to vacate his sentence under 28 U.S.C. § 2255. He argued that his

Alabama burglary conviction was no longer a crime of violence in light of Johnson v. United
No. 17-3976, Prowell v. United States


States, 135 S. Ct. 2551, 2557 (2015), which held that the “residual clause” of the Armed Career

Criminal Act (ACCA) was unconstitutionally vague. Citing our decision in Raybon v. United

States, 867 F.3d 625 (6th Cir. 2017), the district court denied Prowell’s § 2255 motion, holding

that it was untimely. The district court granted Prowell’s motion for a certificate of appealability

and this appeal followed.

                                         II.   ANALYSIS

       A.      Standard of Review

        “On appeal from the denial of a § 2255 motion, we review legal conclusions de novo and

factual findings for clear error.” Howard v. United States, 743 F.3d 459, 463 (6th Cir. 2014)

(quoting Regaldo v. United States, 334 F.3d 520, 523–24 (6th Cir. 2003)).

       B.      Prowell’s § 2255 Motion

       Section 2255 motions must be filed within one year of final judgment, or as is relevant

here, within one year of a Supreme Court decision recognizing the right asserted and making it

retroactively applicable to cases on collateral review. 28 U.S.C § 2255(f)(1), (3). Prowell argues

that his § 2255 motion is timely because it was filed within one year of the Supreme Court’s

decision in Johnson. This case requires that we determine the filing deadline applicable to

Prowell’s motion.

       The governing law begins with the Supreme Court’s 2015 decision in Johnson. For a brief

period of time, the law of this circuit held that the identically worded provision of the Guidelines’

residual clause was also unconstitutionally vague. United States v. Pawlak, 822 F.3d 902, 903

(6th Cir. 2016). In Beckles v. United States, 137 S. Ct. 886, 890 (2017), however, the Supreme

Court held that the advisory sentencing Guidelines are not subject to a void for vagueness

challenge.



                                                -2-
No. 17-3976, Prowell v. United States


       Because he was sentenced prior to United States v. Booker, 543 U.S. 220 (2005), and was

therefore subject to a mandatory Guidelines sentence, Prowell argues that his challenge is not

foreclosed by Beckles. See Beckles, 137 S. Ct. at 895 (“[W]e hold that the advisory Sentencing

Guidelines are not subject to a vagueness challenge under the Due Process Clause and that

§ 4B1.2(a)’s residual clause is not void for vagueness.” (emphasis added)); id. at 903 n.4

(Sotomayor, J. concurring) (“The Court’s adherence to the formalistic distinction between

mandatory and advisory rules at least leaves open the question whether defendants sentenced to

terms of imprisonment before our decision in United States v. Booker . . . may mount vagueness

attacks on their sentences.”). If the mandatory sentencing Guidelines are subject to void for

vagueness challenges, Prowell argues, then the residual clause of the mandatory Guidelines is

unconstitutional for the same reasons articulated in Johnson. Prowell also notes that the Eleventh

Circuit has held that his third-degree burglary conviction does not constitute a crime of violence

under any of the ACCA’s crime of violence provisions. Mays v. United States, 817 F.3d 728 (11th

Cir. 2016); United States v. Howard, 742 F.3d 1334 (11th Cir. 2014).

       Prowell’s argument runs headlong into our published precedent. As he acknowledges, our

decision in Raybon considered and rejected precisely this challenge. 867 F.3d at 630. There, we

reasoned that because it is an “open question” whether a petitioner may mount a Johnson challenge

to a sentence imposed under the mandatory Guidelines, there has been no decision by the United

States Supreme Court recognizing a right that has been made retroactive.          Id.; 28 U.S.C.

§ 2255(f)(3). And because no right has been recognized, Prowell’s § 2255 motion should have

been filed within one year of the district court’s entry of final judgment, rather than within one

year of the Johnson decision.




                                               -3-
No. 17-3976, Prowell v. United States


       The district court entered judgment in Prowell’s case on December 21, 1999. Prowell did

not take a direct appeal, and the time to appeal the judgment expired 14 days later on January 4,

2000. Fed. R. App. P. 4(b)(1)(A)(i). His § 2255 motion needed to be filed within one year of that

date. 28 U.S.C. § 2255(f)(1); Raybon, 867 F.3d at 630–31. Prowell’s § 2255 motion filed on June

13, 2016 was untimely. Although Prowell urges that Raybon be revisited by the en banc court, we

cannot disregard published precedent absent a decision by the en banc court or intervening

Supreme Court precedent. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.

1985) (“[A] prior decision remains controlling authority unless an inconsistent decision of the

United States Supreme Court requires modification of the decision or this Court sitting en banc

overrules the prior decision.”).

                                     III. CONCLUSION

       Under our binding precedent, Prowell’s § 2255 motion was untimely. We therefore

AFFIRM the decision of the district court denying Prowell’s motion for resentencing.




                                               -4-
