                                In the

    United States Court of Appeals
                  For the Seventh Circuit
                      ____________________
No. 17-2618
MICHAEL DANIELS,
                                                 Petitioner-Appellant,
                                  v.

UNITED STATES OF AMERICA,
                                                Respondent-Appellee.
                      ____________________

              Appeal from the United States District Court
                 for the Eastern District of Wisconsin.
              No. 15-CV-1440 — J.P. Stadtmueller, Judge.
                      ____________________

  ARGUED FEBRUARY 21, 2019 — DECIDED OCTOBER 4, 2019
               ____________________

   Before EASTERBROOK, SYKES, and BARRETT, Circuit Judges.
    SYKES, Circuit Judge. In 1991 Michael Daniels was sen-
tenced 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.
2                                                  No. 17-2618

    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, 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 predi-
cate 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 fore-
closes 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 vague-
ness 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 oﬀend-
er. But the error was harmless because it did not aﬀect his
sentence.
No. 17-2618                                                   3

                        I. Background
    On direct appeal 26 years ago, we described Daniels’s ex-
tensive involvement with a violent drug-traﬃcking organi-
zation 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) con-
spiracy 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 count-
ed 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
4                                                       No. 17-2618

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 (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 previ-
ously 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 remain-
ing 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



1 The original charge was for possession of controlled substances with
intent to distribute.
No. 17-2618                                                5

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 designa-
tion to ensure that the original misdesignation would not
aﬀect Daniels’s security classiﬁcation. The letter also ex-
plained that eliminating the career-oﬀender label did not
change Daniels’s Guidelines sentencing range, which re-
mained 360 months to life. The judge reviewed the letter and
acknowledged that “one of [Daniels’s] prior felony convic-
tions 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
6                                                             No. 17-2618

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. Tichen-
or, 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 ex-
tended that holding to the post-Booker advisory Guidelines,

2 As we’ve noted, over the years Daniels ﬁled multiple requests for relief
from his sentence. Other than the Bailey challenge to the § 924(c) convic-
tion, none were captioned as a § 2255 motion. Under Magwood v.
Patterson, 705 U.S. 320 (2010), and Suggs v. United States, 705 F.3d 279, 282
(7th Cir. 2013), the sentence imposed after Daniels successfully chal-
lenged his § 924(c) conviction is deemed a new judgment for § 2255
purposes. Based on his many other requests for relief, however, the
present § 2255 motion might constitute a successive petition requiring
authorization. See 28 U.S.C. § 2255(h). Based on the “convoluted proce-
dural history” of the case and the substantive changes in the law, the
government agrees that it should not be so construed. We accept that
concession.
No. 17-2618                                                    7

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 (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 Novem-
ber 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 Dan-
iels’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 criminal-history category V will be used “in
any [Guidelines] calculations.”
    After the parties ﬁled their initial briefs but before oral
argument, another panel of this court addressed the “analyt-
ical mineﬁeld” that troubled the district judge, ruling that
the Supreme Court’s holding in Beckles is limited to the
advisory Guidelines. Cross, 892 F.3d at 304–07. The mandato-
ry Guidelines, Cross explained, are meaningfully diﬀerent
and may be challenged on vagueness grounds. Id. Applying
the logic of Johnson, the Cross panel invalidated the residual
clause in the career-oﬀender guideline and applied that
ruling retroactively to authorize § 2255 relief for two defend-
ants who were sentenced as career oﬀenders under the
mandatory Guidelines. Id. at 307.
8                                                 No. 17-2618

    In light of Cross, we struck the parties’ briefs and in-
structed them to ﬁle new briefs addressing its eﬀect on this
case.
                        II. Discussion
    This § 2255 appeal presents only legal issues, so our re-
view is de novo. Hrobowski v. United States, 904 F.3d 566, 569
(7th Cir. 2018). As we’ve explained, Daniels was sentenced as
a career oﬀender based on a 1988 drug conviction and a 1982
conviction for sexual abuse of a minor. The former was
counted as a “controlled substance oﬀense” for career-
oﬀender purposes. U.S.S.G. § 4B1.2(b). The latter was con-
sidered a career-oﬀender predicate under the residual clause
of the deﬁnition of “crime of violence.” Id. § 4B1.2(a)(2). For
years Daniels has argued that neither conviction actually
qualiﬁes, making the career-oﬀender label erroneous.
    We begin with the obvious: The Probation Oﬃce uncov-
ered and corrected the career-oﬀender misdesignation long
ago. In 2009 the Probation Oﬃce determined that the 1988
drug conviction was for simple felony possession of con-
trolled substances, which doesn’t qualify as a predicate
controlled-substance oﬀense. That knocked out one of the
two necessary predicates for the career-oﬀender designation,
and although the error had no eﬀect on Daniels’s sentencing
range, the Probation Oﬃce took steps to correct the misdes-
ignation with the Bureau of Prisons.
    After Cross, it’s now clear that the 1982 conviction also
should not have been counted. The government has not
raised a timeliness objection to this new claim: Daniels ﬁled
his § 2255 motion within one year of the Supreme Court’s
decision in Johnson, as required by 28 U.S.C. § 2255(f)(3).
No. 17-2618                                                   9

And the claim is clearly cognizable under Cross. The 1982
conviction for sexual abuse of a minor was included as a
career-oﬀender predicate only under the residual clause of
the “crime of violence” deﬁnition in the Guidelines. U.S.S.G.
§ 4B1.2(a)(2). Cross invalidated the residual clause as uncon-
stitutionally vague in light of Johnson and applied that ruling
retroactively, authorizing relief under § 2255. 892 F.3d at
299–307. Beckles wasn’t an obstacle in Cross because it only
addressed the post-Booker advisory Guidelines. See id. at 304.
Other circuits disagree, but Cross controls and Beckles is not
an obstacle here either. See D’Antoni v. United States, 916 F.3d
658, 664 n.4 (7th Cir. 2019) (collecting cases from other
circuits).
   All this is undisputed. Everyone agrees that Daniels was
mistakenly designated a career oﬀender based on two
nonqualifying predicates. “Since the parties do not dispute
the error, we [need] only address whether the error [is]
harmless.” United States v. Lomax, 816 F.3d 468, 478 (7th Cir.
2016).
   The parties debate whether the Chapman or Brecht stand-
ard governs the harmless-error analysis. The former applies
to constitutional errors identiﬁed and reviewed on direct
appeal and requires the government to demonstrate that the
error “was harmless beyond a reasonable doubt.” Chapman
v. California, 386 U.S. 18, 24 (1967). The latter applies to
constitutional errors identiﬁed on collateral review under
28 U.S.C. § 2254. Under Brecht v. Abrahamson, a state prisoner
must show that the error “had [a] substantial and injurious
eﬀect or inﬂuence in determining the jury’s verdict.”
507 U.S. 619, 623, 633–34 (1993) (quotation marks omitted).
10                                                            No. 17-2618

   The Supreme Court has not addressed which standard
applies in § 2255 cases, but some of our sister circuits have
adopted Brecht in this context. 3 We haven’t taken a ﬁrm
position, and our caselaw gestures in conﬂicting directions.
Compare Lanier v. United States, 220 F.3d 833, 839 (7th Cir.
2000) (applying a harmless-error test resembling the
Chapman formulation), with Sorich v. United States, 709 F.3d
670, 674 (7th Cir. 2013) (using the Brecht standard to evaluate
constitutional error in jury instructions).
    We don’t need to resolve that tension. The error here is
harmless under any standard. We have long held that
Guidelines-calculation errors that don’t aﬀect a defendant’s
sentencing range are harmless as a matter of law. See, e.g.,
United States v. Harmon, 721 F.3d 877, 892 (7th Cir. 2013)
(concluding that any error in calculating a defendant’s
criminal-history category “was harmless” because “his
guidelines range was the same—360 months to life—
whether he was in criminal history category I or II”). It’s
undisputed that the career-oﬀender misdesignation did not
aﬀect the Guidelines range: with or without it, Daniels faced
360 months to life in prison. Accordingly, no record-sensitive
evaluation of the type described in either Chapman or Brecht
is needed.
   Daniels identiﬁes several cases where we examined the
judge’s sentencing remarks to determine harmlessness even
though the Guidelines range was the same with or without

3 See United States v. Smith, 723 F.3d 510, 517 (4th Cir. 2013); United States
v. Dago, 441 F.3d 1238, 1246 (10th Cir. 2006); United States v. Montalvo,
331 F.3d 1052, 1058 (9th Cir. 2003) (per curiam); Ross v. United States,
289 F.3d 677, 682 (11th Cir. 2002); Murr v. United States, 200 F.3d 895, 906
(6th Cir. 2000).
No. 17-2618                                                11

the error. See Lomax, 816 F.3d at 479; United States v. Ander-
son, 517 F.3d 953, 966 (7th Cir. 2008). For example, he points
to language from Lomax stressing that “had the district court
relied on [the] career oﬀender status when choosing the
appropriate sentence, the error would not have been harm-
less even though the guideline range would have been the
same.” 816 F.3d at 479. We note for starters that this was
unexplained dicta. Even so, it merely suggests that if the
judge had explicitly tied the sentence to the career-oﬀender
misdesignation, the error would have been harmful. Here
the judge never mentioned the career-oﬀender designation
in announcing his sentencing decision. No further inquiry is
required.
    Nor does Narvaez v. United States help Daniels’s position.
There the § 2255 petitioner pleaded guilty to bank robbery
and was sentenced as a career oﬀender based on two prior
Wisconsin convictions for failing to return to conﬁnement.
The career-oﬀender designation “increased the then-
mandatory sentencing range … from 100–125 months to
151–188 months,” and the judge imposed a prison term at
the midpoint of the enhanced Guidelines range. Narvaez v.
United States, 674 F.3d 621, 624 (7th Cir. 2011). After the
Supreme Court cast doubt on whether his prior convictions
qualiﬁed as “crimes of violence,” the petitioner moved to
vacate his sentence under § 2255. We reversed the district
court’s denial of relief, holding that the petitioner “never
should have been classiﬁed as a career oﬀender and never
should have been subjected to the enhanced punishment.”
Id. at 627. Daniels compares his circumstances to Narvaez but
overlooks a crucial distinction: In that case the career-
oﬀender misdesignation increased the Guidelines range. Not
so here.
12                                                No. 17-2618

    Finally, Daniels argues that the career-oﬀender misdes-
ignation carries prejudicial collateral consequences. He lists
three: The Bureau of Prison’s security-classiﬁcation rules
account for an inmate’s criminal-history category, the Guide-
lines rules on supervised release similarly consider a de-
fendant’s criminal-history category, and future changes in
the law that might otherwise beneﬁt him may not apply to
career oﬀenders.
    But the Probation Oﬃce addressed any possible collateral
eﬀects of the misdesignation in two separate letters to the
Bureau of Prisons. Its 2009 letter explained that Daniels is
not in fact a career oﬀender, ensuring that the initial misdes-
ignation will not aﬀect his security classiﬁcation. In the 2018
letter, the Probation Oﬃce explained that the initial misdes-
ignation “will not impact the terms of conditions of his
supervised release” and that the correct criminal-history
category will be used in any Guidelines calculations “if
Mr. Daniels face[s] future revocation proceedings.”
   In short, although Daniels was wrongly designated a ca-
reer oﬀender, the error was harmless because it did not
aﬀect the Guidelines range. The district judge properly
denied the § 2255 motion.
                                                    AFFIRMED
