NOT RECOMMENDED FOR PUBLICATION
                                File Name: 19a0580n.06

                                           No. 18-1202


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                   FILED
                                                                                 Nov 26, 2019
 FRANK HARPER                                            )                   DEBORAH S. HUNT, Clerk
                                                         )
        Petitioner-Appellant,                            )
                                                         )
                                                                ON APPEAL FROM THE
 v.                                                      )
                                                                UNITED STATES DISTRICT
                                                         )
                                                                COURT FOR THE EASTERN
 UNITED STATES OF AMERICA                                )
                                                                DISTRICT OF MICHIGAN
                                                         )
        Respondent-Appellee.                             )
                                                         )

BEFORE:        ROGERS, WHITE, and READLER, Circuit Judges.

       ROGERS, Circuit Judge.          Can a federal criminal defendant take advantage of a

defendant-friendly Supreme Court statutory holding that, after his direct appeal, overturns a long-

standing circuit court precedent? In most instances the answer turns—as in this case—on whether

defendant’s counsel raised the issue on direct appeal, or at least was constitutionally required to

do so. Petitioner Harper and his two co-defendants were sentenced to substantial sentences for

carjacking, as well as substantial consecutive sentences for use of a firearm during a crime of

violence. Harper’s co-defendants were able to take advantage of the Supreme Court’s recent ruling

in Dean v. United States, 

(2017), that district courts may take the length of

statutorily mandated consecutive firearm-use sentences into account in determining the sentences

for the underlying predicate offenses, contrary to our circuit’s prior holdings. Co-defendants’

counsel raised the issue in our court on direct appeal and subsequently obtained a remand from the
No. 18-1202, Harper v. United States


Supreme Court based upon the intervening Dean ruling. Harper’s appellate counsel, while raising

other issues on appeal and on petition for certiorari, did not raise the Dean issue.

         In Harper’s later § 2255 motion alleging ineffective assistance of appellate counsel, the

district court properly denied relief. The Supreme Court had not even granted certiorari in Dean

at the time Harper had lost his direct appeal. Appellate counsel was not ineffective for failing to

predict Dean’s change to Sixth Circuit law before then, and defendants are not constitutionally

entitled to the assistance of counsel at the subsequent certiorari stage of a federal criminal

prosecution. Harper’s remaining arguments for relief are also without merit. The Supreme Court’s

new rule in Dean does not apply retroactively to cases on collateral review, and Harper’s argument

that his carjacking convictions were not crimes of violence under 18 U.S.C. § 924(c) is squarely

foreclosed by our published precedent. See United States v. Jackson, 

, 486 (6th Cir.

2019).

                              I. Harper’s Convictions and Sentence

         A jury convicted Frank Harper, Philip Harper, and Bernard Edmond of violating several

criminal laws relating to their scheme to steal cars and then sell them. Frank Harper was convicted

of one count of conspiracy under 18 U.S.C. § 371, three counts of carjacking under 18 U.S.C.

§ 2119, and three counts of using a firearm in relation to a crime of violence under 18 U.S.C.

§ 924(c). Section 924(c)(3) defines the term “crime of violence” as a felony that “(A) has as an

element the use, attempted use, or threatened use of physical force against the person or property

of another, or (B) that by its nature, involves a substantial risk that physical force against the person

or property of another may be used in the course of committing the offense.” The district court

sentenced Harper to 60 months on the conspiracy count, to be served concurrently with 97 months

for the three carjacking counts. The district court also imposed statutorily required consecutive



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No. 18-1202, Harper v. United States


sentences for Harper’s firearm-use convictions under § 924(c) amounting to 55 years. See

18 U.S.C. § 924(c). Accordingly, Harper was sentenced to 757 months in total.

       Harper and his co-defendants appealed. See United States v. Edmond, 

(6th

Cir. 2016). Frank Harper challenged his convictions and his two co-defendants challenged both

their convictions and sentences. This court affirmed all convictions and sentences on March 3,

2016. 

, cert. granted, judgment vacated, 

(2017), and

cert. granted, judgment vacated sub nom. Harper v. United States, 

(2017).

Subsequently, Harper’s appellate counsel filed a petition for certiorari on August 2, 2016, as did

his co-defendants. Harper’s petition—unlike his co-defendants’ petitions—did not challenge

whether the district court was required or permitted to consider the mandatory minimum sentence

under § 924(c) when sentencing Harper for his conspiracy and carjacking convictions.

       On October 28, 2016, the Supreme Court granted certiorari in Dean, 

(2016),

which presented the question of what is the sentencing court’s discretion to consider a mandatory

minimum sentence under § 924(c) when imposing a sentence on the underlying predicate crime.

Harper’s petition for certiorari did not raise this issue, and his counsel did not amend his petition

to add this issue after the Supreme Court granted certiorari in Dean. The Supreme Court denied

Harper’s petition on January 11, 2017. The Supreme Court decided Dean on April 3, 2017, holding

that sentencing courts may consider the mandatory minimum sentence imposed under § 924(c)

when calculating a just sentence for the predicate 

–77. Several weeks

later, the Supreme Court granted Harper’s co-defendants’ petitions, vacated this court’s judgment,

and remanded their cases for further consideration in light of Dean. Harper v. United States,

(2017); United States v. Edmond, 

(2017). This court then affirmed

those defendants’ convictions and remanded to the district court “for the limited purpose of



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No. 18-1202, Harper v. United States


resentencing in light of Dean.” The district court significantly reduced those defendants’ sentences

for their predicate offenses.

       Harper filed a § 2255 motion to vacate, set aside, or correct his sentence, asserting five

grounds for relief. The district court denied Harper’s motion and denied Harper’s request for a

certificate of appealability. However, this court granted a certificate of appealability on Harper’s

claims that: “(1) pursuant to Johnson, carjacking is not a crime of violence and therefore cannot

serve as a predicate felony for Harper’s § 924(c) convictions; and (2) appellate counsel was

ineffective for failing to challenge on appeal the district court’s failure to consider the § 924(c)

mandatory minimum sentences when determining the sentences for the predicate convictions and

that, alternatively, he is entitled to resentencing because Dean is retroactively applicable to cases

on collateral review.”

       The district court rejected the first of these two claims, that Harper’s § 924(c) convictions

should be vacated under Johnson v. United States. 

(2015). In Johnson, the

Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C.

§ 924(e)(2)(B)(ii), was unconstitutionally vague. 

. At the time of the

district court’s decision, this court had determined that the residual clause in § 924(c)(3)(B) was

sufficiently different from the residual clause at issue in Johnson that it was not unconstitutionally

vague. See United States v. Taylor, 

, 376–79 (6th Cir. 2016), abrogated by United

States v. Davis, 

(2019). This led the district court to hold that Johnson did not

provide a ground for relief.

       Further, the district court rejected Harper’s Dean-related claims.         The district court

determined that Harper failed to establish that his appellate counsel provided ineffective assistance

of counsel under Strickland v. Washington, 

(1984). Under Strickland, to establish



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No. 18-1202, Harper v. United States


ineffective assistance of counsel, a defendant must show that: (1) counsel’s performance was

deficient such that the “representation fell below an objective standard of reasonableness,” and

(2) the deficient performance resulted in prejudice to the defense. 

The district court

did not find appellate counsel’s failure to raise the issue of whether the district court was permitted

to consider a mandatory minimum sentence under § 924(c) when calculating a sentence for the

predicate offense to be objectively unreasonable. The Supreme Court did not even grant certiorari

in Dean until over six months after this court had affirmed Harper’s convictions as well as his co-

defendants’ convictions and sentences. This led the district court to conclude that Harper’s

appellate counsel was not ineffective based on a failure to predict the subsequent development of

the law in Dean. The district court also held that appellate counsel’s failure to raise the issue in

Harper’s petition for certiorari and failure to attempt to amend his petition after the Supreme Court

granted certiorari in Dean did not constitute ineffective assistance, reasoning that there is “no

constitutional right to counsel at the petition-for-certiorari stage.” In addition, the district court

concluded that Harper could not demonstrate prejudice. The district court, which was also the

sentencing court in this matter, asserted it took “the 55 years of mandatory minimums for the

firearm offenses into account in declining to run the sentences on the carjacking and conspiracy

charges consecutive to one another. If Harper was to be re-sentenced, the court would be free to

impose the same sentence under the dictates of Dean.” Finally, the district court ruled that Dean

does not apply retroactively on collateral review.

          II. Carjacking Qualifies as a Crime of Violence Under 18 U.S.C. § 924(c)

       Harper’s carjacking qualifies as a crime of violence under the elements clause of 18 U.S.C.

§ 924(c). Section 924(c)’s definition of a “crime of violence” contains an elements clause and

residual clause. Although the Supreme Court has determined that § 924(c)’s residual clause is



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No. 18-1202, Harper v. United States


unconstitutionally vague, United States v. Davis, 

, 2336 (2019), this court has held

that carjacking constitutes a crime of violence under § 924(c)’s elements clause, United States v.

Jackson, 

(6th Cir. 2019).

        Harper argues that carjacking is not a crime of violence because it can be committed by

“intimidation.” He asserts that carjacking by “intimidation” can be accomplished “by making a

statement that only could theoretically, not actually, put someone in fear of bodily harm, and

therefore does not satisfy” § 924(c)’s elements clause. But in Jackson, we rejected a similar

argument and concluded that the commission of carjacking by ‘“intimidation’ necessarily involves

the threatened use of violent physical force.” 

. This published holding

forecloses Harper’s claim that his carjacking convictions were not crimes of violence under

§ 924(c).

       III. Harper Did Not Receive Constitutionally Ineffective Assistance of Counsel

        Harper’s contentions that he should be resentenced because he received ineffective

assistance of appellate counsel fail. Harper cannot establish that he received ineffective assistance

of counsel at the time of his direct appeal because an argument premised on the principle espoused

by Dean was squarely foreclosed by this court’s precedent. When the Supreme Court granted

certiorari in Dean, Harper had already petitioned for certiorari. He no longer had a constitutional

right to counsel at the petition-for-certiorari stage, and there was no derivative right to the effective

assistance of counsel at this point.

A. Direct Appeal

        In Harper’s direct appeal, his appellate counsel did not raise the argument that the district

court should have considered the mandatory consecutive sentence imposed under the § 924(c)

convictions when determining the sentences for the predicate offenses. On the other hand,



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No. 18-1202, Harper v. United States


Harper’s two co-defendants both raised this argument in their direct appeals to this court. Further,

Harper’s counsel did not raise this issue in his petition for certiorari and did not amend his petition

when the Supreme Court granted certiorari in Dean, a case raising the specific question of whether

the sentencing court must ignore the mandatory minimum sentence imposed under § 924(c) when

calculating the sentence for the predicate offense. Again, his two co-defendants raised this issue

in their petitions for certiorari. Ultimately, Harper’s petition was denied while the Supreme Court

vacated and remanded this court’s judgment regarding his two co-defendants in light of Dean.

Subsequently, Harper’s two co-defendants received significantly reduced sentences. While the

disparity between Harper’s and his co-defendants’ situations may appear unfair, he nevertheless

cannot meet Strickland’s high burden to prove ineffective assistance of counsel.

       Although Harper’s counsel did not raise a Dean-type claim in his direct appeal, this did not

fall below the “wide range of professionally competent assistance” required under the Sixth

Amendment. 

. To establish ineffective assistance of counsel, a

defendant must show that “counsel’s representation fell below an objective standard of

reasonableness.” 

Dean was not even decided until over a year after this court issued

its opinion in Harper’s direct appeal. Harper’s counsel challenged his conviction on several

grounds.    His counsel challenged the admission of certain evidence and alleged that the

Government engaged in prosecutorial misconduct. 

–47. Strickland’s

performance standard does not require an attorney to raise every non-frivolous issue on appeal.

See Jones v. Barnes, 

, 751 (1983). Indeed, the Supreme Court has noted that

‘“[w]innowing out weaker arguments on appeal and focusing on’ those more likely to prevail . . .

is the hallmark of effective appellate advocacy.” Smith v. Murray, 

, 536 (1986)

(quoting 

–52).



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No. 18-1202, Harper v. United States


       In cases where an appellate attorney has presented one argument on appeal rather than

another, the “petitioner must demonstrate that the issue not presented ‘was clearly stronger than

issues that counsel did present.’” Caver v. Straub, 

, 348 (6th Cir. 2003) (quoting

Smith v. Robbins, 

, 289 (2000)). Harper cannot make such a showing here. His

appeal brief was filed fifteen months before the Supreme Court granted certiorari in Dean, and this

court’s opinion in his appeal was issued over six months before the Supreme Court even granted

certiorari in Dean. This court’s precedent foreclosed any Dean-type argument at the time. In

United States v. Franklin, 

, 586 (6th Cir. 2007), we held that the “sentencing court

must determine an appropriate sentence for the underlying crimes without consideration of the

§ 924(c) sentence.” An argument foreclosed by binding precedent can hardly be said to be clearly

stronger than issues that counsel did present.

       Harper’s appellate counsel cannot be faulted for failing to predict the future development

of the law in Dean. See Thompson v. Warden, Belmont Corr. Inst., 

, 288–89 (6th Cir.

2010). One factor in considering the constitutional adequacy of appellate counsel’s performance

is whether there was any “arguably contrary authority on the omitted issues.” Mapes v. Coyle, 

, 427–28 (6th Cir. 1999) (citations omitted). Again, there was not just “arguably contrary

authority” to the omitted Dean-type claim here, there was binding authority foreclosing this

argument at the time of Harper’s direct appeal. See 

. “A fair assessment

of attorney performance requires that every effort be made to eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the

conduct from counsel’s perspective at the time.” 

. Thus, despite the

fact that Dean ultimately overturned Franklin’s precedent and determined that sentencing courts

may take into consideration the mandatory minimum sentence required by § 924(c) when



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No. 18-1202, Harper v. United States


calculating a just sentence for the underlying offense, Harper’s appellate counsel’s representation

did not fall below the objective standard of reasonableness by failing to predict this legal

development.

B. Petition for Certiorari

       Harper cannot demonstrate that he received constitutionally deficient counsel with respect

to his petition for certiorari because he did not have a constitutional right to counsel at that stage.

Dean was not granted certiorari until after Harper had already filed his petition for certiorari. Thus,

Harper was clearly in the discretionary appeal stage at the time one could glean any foreshadowing

from the grant of certiorari in Dean. “Because defendants are not constitutionally entitled to the

assistance of counsel in preparing petitions for certiorari,” which means that even the failure to file

a petition for certiorari cannot amount to constitutionally ineffective assistance of counsel,

counsel’s performance at this stage cannot be constitutionally ineffective. Nichols v. United States,

, 242 (6th Cir. 2009) (en banc) (citing Ross v. Moffitt, 

, 617 (1974)).

       In Nichols, this court sitting en banc concluded that the defendant, Nichols, could not

prevail on his ineffective assistance of counsel claim based on his counsel’s failure to petition the

Supreme Court for certiorari because defendants are not constitutionally entitled to the assistance

of counsel in preparing petitions for certiorari. 

Nichols’s counsel did not raise an

Apprendi-based argument challenging the Federal Sentencing Guidelines in submitting the

sentencing memorandum in October 2002, in which he raised numerous other objections. At the

time, this court had held that Apprendi required reversal “when the district court determined a fact

that caused the defendant’s sentence to exceed a statutory maximum or, under some limited

circumstances, that required a statutorily mandated minimum sentence, without a jury determining

the fact beyond a reasonable doubt.” United States v. Chapman, 

, 535 (6th Cir. 2002).



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No. 18-1202, Harper v. United States


This court had several times rebuffed arguments that Apprendi applied to every fact that increases

the defendant’s sentence under the then-binding Federal Sentencing Guidelines. See, e.g., id.;

United States v. Copeland, 

, 605 n.8 (6th Cir. 2003).

        After being sentenced, Nichols appealed, challenging a jury instruction, but again making

no mention of Apprendi. United States v. Nichols, 100 F. App’x 524, 526 (6th Cir. 2004). This

court affirmed the district court judgment in June 2004. Then, nearly two weeks after this court

issued its opinion and one day before Federal Rule of Appellate Procedure 40(a)(1)’s fourteen-day

period to seek rehearing of that decision expired, the Supreme Court issued its decision in Blakely

v. Washington, 

, 303 (2004), holding that “the ‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in

the jury verdict or admitted by the defendant.” (Citations and emphasis omitted.) Nichols’s

attorney did not move for rehearing or move to stay the mandate so that he could petition for

rehearing out-of-time based on Blakely. Unlike his co-defendant’s attorney, Nichols’s attorney

did not petition the Supreme Court for certiorari by the September 2004 deadline for him to do so

to argue that Blakely should apply to the Federal Sentencing Guidelines.1

        In August 2004, before Nichols’s time to petition the Supreme Court for certiorari expired,

the Supreme Court granted certiorari in Booker, a case posing the question of whether enhanced

sentences pursuant to the Federal Sentencing Guidelines based on a judge’s factual determinations

violated the Sixth Amendment. In January 2005, the Supreme Court issued its opinion in Booker,

holding that the mandatory Federal Sentencing Guidelines violated the Sixth Amendment. United

States v. Booker, 

(2005). In light of Booker, the Supreme Court granted Nichols’s

co-defendant’s petition for certiorari and remanded his case for resentencing. See Smith v. United


1
  Because this court entered judgment on June 11, 2004, Nichols and his co-defendant had until September 9, 2004,
(i.e., 90 days) to petition the Supreme Court for certiorari. See Sup. Ct. R. 13(3).

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No. 18-1202, Harper v. United States


States, 

(2005). On remand, the district court reduced Nichols’s co-defendant’s

sentence by nine months. 

. This led Nichols to claim that he received

ineffective assistance of counsel based on “his attorney’s failure to argue that it was improper to

enhance his sentence based on facts that had not been proved to a jury beyond a reasonable doubt.”

Essentially, Nichols was arguing that his attorney was deficient because his counsel

failed to move the panel to reconsider or to petition the Supreme Court for certiorari. 

       But we rejected Nichols’s argument that his counsel was constitutionally ineffective. The

Sixth Amendment only guarantees the right to counsel at trial and on direct “first tier” appeal as

of right. 

see Halbert v. Michigan, 

, 610 (2005). “[T]he Constitution does

not entitle a defendant to the assistance of counsel for a discretionary appeal (e.g., a petition for

certiorari).” 

(citing 

). This led us to reason that

“where there is no constitutional right to counsel there can be no deprivation of effective

assistance.” 

v. Thompson, 

, 752 (1991)). Thus, we concluded

that Nichols could not demonstrate ineffective assistance of counsel due to his counsel’s failure to

petition the Supreme Court for certiorari because Nichols did not have a constitutional right to

counsel at the petition-for-certiorari stage. 

to distinguish Nichols is unavailing. Harper argues that his case is

different because his appellate counsel actually did file a petition for certiorari whereas Nichols’s

counsel never filed such a petition. Harper contends that therefore once his attorney filed a petition

for certiorari, his attorney’s failure to amend his petition or supplement it after the grant of

certiorari in Dean constituted deficient performance. But this reads Nichols too narrowly. Nichols

did not solely determine that the failure to file a petition for certiorari cannot amount to

constitutionally ineffective assistance of counsel. Nichols clearly establishes that there is no right



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No. 18-1202, Harper v. United States


to counsel at the petition-for-certiorari stage and “where there is no constitutional right to counsel

there can be no deprivation of effective assistance.” 

right does not suddenly attach by

virtue of Harper’s counsel filing a certiorari petition. This would create the bizarre result that

Harper’s counsel could not be deemed constitutionally ineffective if the attorney had failed to even

file a petition for certiorari, but opened the door to this possibility by actually filing a petition.

Thus, the lack of a constitutional right to counsel at the petition-for-certiorari stage means that a

defendant cannot show he received constitutionally ineffective assistance of counsel at this

discretionary appeal stage.

       Further, Harper argues that this court recognized in Lucas v. O’Dea, 

, 420

(6th Cir. 1999), that there may be instances in which “counsel’s failure to raise an issue whose

resolution is clearly foreshadowed by existing decisions might constitute ineffective assistance of

counsel.” But this cannot overcome the insurmountable hurdle of Nichols. Harper asserts that

although Franklin foreclosed the Dean-type argument at the direct appeal stage, he was not

precluded from raising this argument for the first time at the petition-for-certiorari stage. Dean

was granted certiorari while Harper’s petition was still pending, and Harper alleges that the grant

of certiorari in Dean “clearly foreshadowed” a new resolution of this sentencing issue. Thus,

Harper contends that his counsel was constitutionally deficient for not adding this Dean-type

argument to his pending petition once the Supreme Court granted certiorari in Dean. But as

discussed above, Harper did not have a constitutional right to counsel at the petition-for-certiorari

stage, so he could not have been deprived of effective assistance at this stage even if such a

foreshadowing would have constitutionally required counsel to raise the issue at the first-appeal

level had the grant in Dean occurred earlier.




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No. 18-1202, Harper v. United States


                       IV. Dean is Not Retroactive on Collateral Review

       Harper’s alternative argument that Dean announced a new rule of law that applies

retroactively also fails. A new rule only applies retroactively on collateral review if “(1) the rule

is substantive or (2) the rule is a watershed rule of criminal procedure implicating the fundamental

fairness and accuracy of the criminal proceeding.” Whorton v. Bockting, 

, 416 (2007)

(citing Saffle v. Parks, 

, 495 (1990)); see also Teague v. Lane, 

, 311

(1989). The rule announced in Dean does not fit into either of these categories.

       First, Dean is not a substantive rule. “A rule is substantive rather than procedural if it alters

the range of conduct or the class of persons that the law punishes.” Schriro v. Summerlin, 

, 353 (2004) (citations omitted). Harper contends that the rule set forth in Dean is substantive

because it declared that sentencing courts are not prevented from considering the mandatory

minimum sentence under § 924(c) when determining the appropriate sentence for the predicate

offense for the class of defendants that have been convicted of an offense under § 924(c).

However, Dean did not prohibit the imposition of any form of punishment on a particular class of

defendants. The rule set forth in Dean is permissive—not mandatory. When sentencing a

defendant for a predicate § 924(c) offense, a sentencing court may consider the mandatory

minimum sentence required by § 924(c). But the court is not required to do so. Sentencing courts

remain free to ultimately impose the exact same sentences as they may have before Dean.

Accordingly, Dean did not proscribe the punishment of certain conduct or prohibit a category of

punishment for any class of defendants because of their status or offense. Dean therefore did not

announce a new substantive rule.

       Second, Dean is not a watershed rule of criminal procedure. To be a watershed rule of

criminal procedure, “a new rule must meet two requirements: Infringement of the rule must



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No. 18-1202, Harper v. United States


‘seriously diminish the likelihood of obtaining an accurate conviction,’ and the rule must ‘alter our

understanding of the bedrock procedural elements’ essential to the fairness of a proceeding.” Tyler

v. Cain, 

, 665 (2001) (quoting Sawyer v. Smith, 

, 242 (1990)). Harper

contends that Dean announced a watershed rule of criminal procedure because it ‘“significantly

improve[s] the pre-existing factfinding procedures’ at sentencings in § 924(c) cases, which were

limited at Harper’s sentencing since the district court did not believe it had discretion to consider

the mandatory nature of the three § 924(c) convictions relative to the sentence for the carjacking

predicate and conspiracy offenses.” But this does not demonstrate that Dean constitutes a

watershed rule of criminal procedure. Dean has nothing to do with conviction accuracy. Rather,

Dean was solely focused on sentencing courts’ discretion to consider the mandatory minimum

sentence under § 924(c) when imposing the sentence on the predicate offense. Cf. Goode v. United

States, 

, 385 (6th Cir. 2002). This is not the type of “profound and ‘sweeping’

change” that “alter[s] our understanding of the bedrock procedural elements essential to the

fairness of a proceeding,” as described in 

(citing 

). A decision that “left sentencing authority, albeit with increased discretion, with sentencing

judges . . . could not have announced a ‘watershed rule.’” Duncan v. United States, 

,

447 (6th Cir. 2009).

       Accordingly, Dean does not apply retroactively to cases on collateral review.

                                          V. Conclusion

       For the reasons stated above, we affirm the judgment of the district court.




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