February 21, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 15-CV-1440-J.P. Stadtmueller,
Easterbrook, Sykes, and Barrett, Circuit Judges.
Michael Daniels was sentenced to 35 years in prison for
drug-trafficking crimes he committed while leading the
violent Brothers of the Struggle street gang in Milwaukee in
the 1980s. Based on two of his many prior crimes, he was
sentenced as a career offender under the then-mandatory
Sentencing Guidelines. But the designation did not affect his
sentencing range, which was 360 months to life with or
than two decades later, Daniels moved to vacate his sentence
under 28 U.S.C. § 2255 on the authority of Johnson
v. United States, 135 S.Ct. 2551 (2015), which
invalidated the "residual clause" in the Armed
Career Criminal Act as unconstitutionally vague. Daniels
argued that the identically phrased residual clause in the
career-offender guideline is likewise unconstitutionally
vague. Because one of the predicate convictions for his
career-offender status qualified only under the residual
clause, Daniels maintained that he was entitled to
resentencing. The district judge disagreed, relying on
Beckles v. United States, 137 S.Ct. 886 (2017),
which forecloses vagueness challenges to the post-Booker
advisory Sentencing Guidelines. The judge certified his
decision for appeal based on uncertainty about the status of
circuit precedent regarding vagueness challenges to the
pre-Booker mandatory Guidelines.
parties addressed that question in their initial briefs. In
the meantime, a panel of this court issued a definitive
answer, ruling that defendants who were sentenced under the
mandatory Guidelines may bring Johnson-based
vagueness challenges to the career-offender guideline.
Cross v. United States, 892 F.3d 288, 304-06 (7th
Cir. 2018). Applying Johnson, the panel in
Cross invalidated the residual clause of the
"crime of violence" definition in the
career-offender guideline and applied that ruling
retroactively, authorizing relief under § 2255.
Id. at 299-304.
directed the parties to file new briefs addressing the effect
of Cross on this case. We now affirm. Under
Johnson and Cross, Daniels was wrongly
designated a career offender. But the error was harmless
because it did not affect his sentence.
direct appeal 26 years ago, we described Daniels's
extensive involvement with a violent drug-trafficking
organization in Milwaukee in the 1980s. See United States
v. Goines, 988 F.2d 750, 756-57, 778-79 (7th Cir. 1993).
To briefly recap, Daniels helped the Brothers of the Struggle
gain a foothold in the city, ran one of the gang's drug
houses, recruited others to join the conspiracy, and
generally "ruled with the proverbial iron fist through
intimidation." Id. at 779.
and 14 coconspirators were arrested in 1990 and charged in a
36-count indictment with conspiracy and related
drug-trafficking and firearms offenses. After a seven-week
trial, a jury found him guilty of three crimes: (1)
conspiracy to possess cocaine with intent to distribute, 21
U.S.C. §§ 841(a)(1), 846; (2) using a communication
facility to further the distribution of cocaine, id.
§ 843(b); and (3) using a firearm in relation to a
drug-trafficking crime, 18 U.S.C. § 924(c). He was
sentenced in 1991 under the then-mandatory Sentencing
Guidelines. His lengthy criminal record placed him in
criminal-history category V, and his offense level was 38.
Two of his prior convictions-a 1982 conviction for "rape
and indecent liberties to a child" and a 1988 conviction
for possession of a controlled substance with intent to
distribute-qualified as a "crime of violence" and a
"controlled substance offense," respectively, and
thus counted as the two predicates necessary to trigger
application of the career-offender guideline. U.S.S.G. §
Daniels was designated a career offender based on these two
convictions, which raised his criminal-history category to
VI. But the designation had no effect on the sentencing
range. With an offense level of 38 and a criminal-history
category of either V or VI, the range was the same:
360 months to life. The judge imposed concurrent sentences of
420 months for the two drug crimes and a consecutive sentence
of 60 months for the firearm offense.
years later, the Supreme Court's decision in Bailey
v. United States, 516 U.S. 137 (1995), cast doubt on the
§ 924(c) conviction, and Daniels filed a § 2255
motion to vacate his sentence. The judge granted the motion,
vacated the firearm conviction, and resentenced him on the
two remaining counts. His offense level increased to 40
because he became eligible for a firearm-related enhancement
that was previously precluded by the separate § 924(c)
conviction. His criminal-history category remained the same.
As before, the career-offender designation had no effect: The
sentencing range was 360 months to life with or without it.
The judge reimposed the same 420-month sentence for the two
remaining convictions, explaining that he saw no reason to
revisit the original sentence.
unsuccessfully appealed the judge's resentencing decision
and thereafter filed a flurry of motions challenging other
aspects of his sentence. One such motion attacked the
career-offender designation. While that motion was pending,
Daniels wrote to the U.S. Probation Office asking it to
review his career-offender label. On review the Probation
Office determined that Daniels was not in fact a career
offender because the 1988 drug conviction was for simple
felony drug ...