Daniels v. United States

• Citation: 939 F.3d 898
• Decision Date: 04 October 2019
• Docket Number: No. 17-2618,17-2618
• Parties: Michael DANIELS, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

939 F.3d 898

Michael DANIELS, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-2618

United States Court of Appeals, Seventh Circuit.

Argued February 21, 2019

Decided October 4, 2019

Shelley M. Fite, Attorney, FEDERAL DEFENDER SERVICES OF WISCONSIN, INC., Madison, WI, for Petitioner-Appellant.

Jonathan H. Koenig, William J. Lipscomb, Rebecca Taibleson, Attorneys, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI, for Respondent-Appellee.

Before Easterbrook, Sykes, and Barrett, Circuit Judges.

Sykes, Circuit Judge.

In 1991 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 without it.

More than two decades later, Daniels moved to vacate his sentence under 28 U.S.C. § 2255 on the authority of Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (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 , ––– U.S. ––––, 137 S. Ct. 886, 197 L.Ed.2d 145 (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.

The 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.

We 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.

I. Background

On 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.

Daniels 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. § 4B1.1 –.2.

Accordingly, 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.

A few years later, the Supreme Court’s decision in Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (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.

Daniels 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 possession, not possession with intent to distribute,¹ and none of his other convictions qualified as career-offender predicates.

On February 9, 2009, the Probation Office sent a letter to the Bureau of Prisons removing the career-offender designation to ensure that the original misdesignation would not affect Daniels’s security classification. The letter also explained that eliminating the career-offender label did not change Daniels’s Guidelines sentencing range, which remained 360 months to life. The judge reviewed the letter and acknowledged that "one of [Daniels’s] prior felony convictions was erroneously found to be a ‘controlled substance offense’ as defined in § 4B1.2, when it in fact did not meet the definition." Because the Guidelines range did not change, the judge took no further action.

In 2015 Daniels moved to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on a retroactive amendment to the Sentencing Guidelines for certain drug offenses. He reminded the court that he was no longer a career offender. The Probation Office reduced Daniels’s offense level in light of the amendment but advised the judge that the change did not affect the Guidelines range and therefore no adjustment in the sentence was warranted. The judge agreed and denied the motion.

Later in 2015 Daniels filed the present § 2255 motion. He again challenged his career-offender designation, only this time he invoked the Supreme Court’s decision in Johnson , which invalidated the residual clause in the Armed Career Criminal Act on vagueness grounds. 135 S. Ct. at 2563. Daniels argued that the identically worded residual clause in the career-offender guideline is likewise unconstitutionally vague. His 1982 conviction for sexual abuse of a minor had been counted as a crime of violence only under the residual clause, so in light of Johnson , Daniels had yet another reason to attack the career-offender designation.²

The district court stayed the motion to await further legal developments—notably, the Supreme Court’s decision in Beckles , which rejected a Johnson -based vagueness challenge to the residual clause of the career-offender guideline in the post-Booker advisory Guidelines. Beckles , 137 S. Ct. at 895. Beckles did not, however, address whether offenders who were sentenced under the mandatory Guidelines may raise vagueness challenges. Id. at 892.

After Beckles , the judge lifted the stay and surveyed our pre-Beckles circuit precedent on vagueness challenges to the Sentencing Guidelines, including United States v. Hurlburt , 835 F.3d 715 (7th Cir. 2016) (en banc); United States v. Tichenor , 683 F.3d 358 (7th Cir. 2012) ; and United States v. Brierton , 165 F.3d 1133 (7th Cir. 1999). Briefly stated, in Brierton we ruled that the mandatory Guidelines cannot be challenged on vagueness grounds, 165 F.3d at 1139, and Tichenor extended that holding to the post-Booker advisory Guidelines, 683 F.3d at 364–65. But we overruled Tichenor in Hurlburt based on the Supreme Court’s intervening decision in Peugh v. United States , 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013). Hurlburt , 835 F.3d at 722–25. Beckles clearly displaced Hurlburt , but the status of earlier circuit caselaw remained unclear. The judge denied the § 2255 motion but granted a certificate of appealability, noting the "analytical minefield" in our caselaw after Beckles .

This appeal followed. While briefing was underway, Daniels submitted additional pro se filings to the district court concerning his career-offender status. On November 14, 2018, the Probation Office again wrote to the Bureau of Prisons noting the mistaken career-offender designation and explaining that the misdesignation did not affect Daniels’s Guidelines range and "will not impact the terms or conditions of his supervised release." The Probation Office also explained that if Daniels ever faces a future revocation proceeding, a...