United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted April 8, 2015*

Decided June 29, 2016

Before

DIANE P. WOOD, Chief Judge

FRANK H. EASTERBROOK, Circuit Judge

ANN CLAIRE WILLIAMS, Circuit Judge

No. 14-2042

DIAUNTE SHIELDS,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District 

Court for the Western District of 

Wisconsin.

No. 3:11-cv-00327

William M. Conley,

Chief Judge.

O R D E R

Diaunte Shields pleaded guilty in the United States District Court for the 

Western District of Wisconsin on May 11, 2007, to one count of possession with intent to 

deliver 50 grams or more of cocaine base (“crack cocaine”). On July 25, Shields was 

 

* After examining the briefs and record, we have concluded that oral argument is 

unnecessary. The appeal is thus submitted on the briefs and record. See FED. R. APP. P.

34(a)(2). Because we have concluded that this appeal is successive to Shields’s 2010 

appeal, 365 F. App’x 691, it has been submitted to the original panel pursuant to 

Internal Operating Procedure 6(b). 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 14-2042 Page 2

sentenced to 290 months’ imprisonment as a career offender under the United States 

Sentencing Guidelines section 4B1.1. We affirmed his sentence on direct appeal. United 

States v. Shields, 365 F. App’x 691 (7th Cir. 2010) (nonprecedential disposition).

Shields now brings a collateral proceeding under 28 U.S.C. § 2255. His lawyer, 

whom we recruited to assist him, raises the argument that Shields’s sentence violates 

the cruel and unusual punishment clause of the Eighth Amendment, because the 

enactment of the Fair Sentencing Act of 2010, which lowers for sentencing purposes the 

ratio between the crack and powder forms of cocaine from 100-1 to 18-1 reveals that 

pre-Act sentences are needlessly high. Shields himself, while acting pro se, contended in 

his motion under 28 U.S.C. § 2255 that his trial counsel rendered ineffective assistance 

for purposes of the Sixth Amendment, insofar as counsel refused his request to attack 

the disparity in recommended Guidelines sentences between crack and powder cocaine.

The Eighth Amendment argument that counsel presses is incompatible with 

many decisions in this circuit, issued both before and after 2010. We have consistently 

held that sentences imposed under the pre-2010 law satisfy the Constitution, and that 

the 2010 Act is not fully retroactive. See, e.g., United States v. Robinson, 697 F.3d 443 (7th 

Cir. 2012); United States v. Speed, 656 F.3d 714, 7179-20 (7th Cir. 2011); United States v. 

Strahan, 565 F.3d 1047, 1052-53 (7th Cir. 2009). Both Speed and Strahan sustained life 

sentences and thus necessarily imply the constitutional validity of Shields’s 290-month 

sentence. See also, e.g., United States v. Blewett, 746 F.3d 647 (6th Cir. 2013) (en banc). No 

circuit has accepted an argument along the lines of the one Shield presents. Indeed, his 

argument cannot be reconciled with Dorsey v. United States, 132 S. Ct. 2321 (2012), which 

held that the Fair Sentencing Act applied retroactively only to those who were 

sentenced on or after its effective date (August 3, 2010), not to those who were 

sentenced before then. 132 S. Ct. at 2335–36.

Shields’s ineffectiveness-of-counsel argument is more difficult to resolve. That is 

because, although Shields himself raised it in his motion, his counsel (after recognizing 

that Shields had done so) abandoned the point in his brief on Shields’s behalf in this 

court. Had counsel never been appointed, it would have been easy to say that Shields 

adequately preserved this point. In his pro se motion under § 2255, he wrote: “This 

movant made it perfectly clear to trial counsel ... that I would have liked for him to 

disagee [sic] with the 100-to-1 Sentencing Guideline disparity for cocaine base and 

powder cocaine. [Trial counsel] refused and stated that he would not because the 

argument was frivolous being that the district judges had no power to entertain such an 

argument.” Shields explains that he renewed his request, and then told his attorney he 
No. 14-2042 Page 3

would bring up the argument himself, but after trial counsel told him such a request 

would “piss [the trial judge] off” he dropped the issue. On direct appeal, as Shields 

points out, this Court affirmed the sentence in part because Shields did not raise the 

crack/cocaine disparity at sentencing. 

Shields had raised the argument on direct appeal under the Supreme Court’s 

decision in Kimbrough v. United States, 552 U.S. 85 (2007), which was decided months

after his sentencing. Kimbrough held that a judge may consider the crack/cocaine 

disparity in sentencing and impose a lower-than-Guidelines sentence for no better 

reason than simple disagreement. The Supreme Court had granted certiorari in 

Kimbrough on June 11, 2007, more than a month before Shields’s sentencing hearing. 

Shields states that the conversation he had with his attorney took place around the end 

of April or the beginning of May. It is possible that his trial counsel was not yet aware 

of Kimbrough when he informed Shields that an objection to the crack/cocaine disparity 

was frivolous. But counsel should have known about Kimbrough by the time of the 

actual hearing, Shields contends, and could have objected at the hearing on the record 

in order to preserve the Kimbrough argument for appeal. Because Shields had explicitly 

requested that his attorney make a crack/cocaine disparity objection, we find it 

particularly troubling that his Federal Defender did not preserve the argument, against 

the backdrop of the Supreme Court’s grant of certiorari in a high-profile case with such 

clear relevance to Shields’s situation. See Government of Virgin Islands v. Forte, 865 F.2d 

59, 62-63 (3d Cir. 1989) (reversing denial of a § 2255 petition claiming ineffective 

assistance of counsel where the defendant had asked his attorney to make a Batson-type 

argument and counsel refused although the Supreme Court had granted certiorari in 

Batson v. Kentucky, 476 U.S. 79 (1986)). 

After Kimbrough, this court’s related decisions took some twists and turns. First, 

we ordered remands in cases in which the crack/cocaine disparity objection was 

preserved, and we used limited remands where it was not and the court’s decision did 

not reveal whether it had been considered. United States v. Taylor, 520 F.3d 746 (7th Cir. 

2008). Then we held that sentencing under the career-offender guideline did not 

implicate Kimbrough, and we indicated that the plain error doctrine would preclude 

considering an unpreserved Kimbrough argument in career-offender cases. United States 

v. Hearn, 549 F.3d 680 (7th Cir. 2008). We reversed course in the latter group of cases just 

one month after Shields’s direct appeal, concluding in United States v. Corner, 598 F.3d 

411 (7th Cir. 2010), that Kimbrough does apply to a career-offender guideline calculation 

involving the disparity between the two forms of cocaine. 
No. 14-2042 Page 4

If Shields’s trial counsel was indeed ineffective for failing to object to the 

crack/cocaine sentencing disparity as applied to Shields through § 4B1.1, the district 

court would be entitled to consider Shields’s underlying Kimbrough argument for 

resentencing in light of the court’s discretion to factor in the disparity. But there is a 

complication that we must address: the question whether the failure of Shields’s 

recruited counsel to raise this point amounts to a waiver or forfeiture on Shields’s 

behalf. We think that, at most, counsel’s decision should be considered a forfeiture 

rather than a waiver, because counsel never indicates that he has consciously deleted 

this argument on appeal—the point just disappears. We may overlook such a forfeiture 

in the interests of justice. Had we left Shields to his own devices, we have no doubt that 

he would have pressed his ineffective-assistance contention before this court, as he has 

done throughout. There are some situations, admittedly different from this one, in 

which we routinely look at both counsel’s submissions and the defendant’s submissions 

to see if there is any issue of merit for an appeal. See Cir. Rule 51(b), addressing motions 

to withdraw pursuant to Anders v. California, 388 U.S. 924 (1967). Given the clarity and 

persistence of Shields’s efforts to preserve this point, we will excuse counsel’s forfeiture 

and consider it.

The final problem is that we do not have enough information in the record to 

determine whether trial counsel performed deficiently. We do not know, for example, 

whether the district court credited Shields’s claims regarding his conversations with 

trial counsel. Accordingly, we VACATE the judgment of the district court and REMAND

for further proceedings to develop the record relating to Shields’s ineffective assistance 

claim.