# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604

Submitted April 8, 201 5 *

Decided June 29, 201 6

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 Di a u nte 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. Th e appeal is thus submitted on the brief s and record. See F ED

. R. A PP

. 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 NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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. 32.1No. 14

- 2042 Page 2

sentenced to 290 months’ imprisonment a s a career offender under the United States Sentencing Guidelines s ection 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 United States v. Shields , 365 F. App’x 691 (7th Cir. 2010) (nonprecedential disposition).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 lowe rs 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 co unsel 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 press es 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 S tates 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 on e 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 Shield s 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 friv olous 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 heNo. 14

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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 h ad 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 c ounsel should have known about Kimbrough by the time of the actual hearing, Shields contend s , and could have object ed at the hearing on the record in order to preserve the Kimbrough argument for appeal. Because Shields had explicitly requested that his att orney make a crack/cocaine disparity objection, we find it particularly troubling that his Federal Defender did not preserve the argument , a gainst the backdrop of the Supreme Court ’s grant of certiorari i n a high

- profile case with such clear relevance to S hields’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 c ourt’s related decisions took some twists and turns. First,

we ordered remand s in cases in which the crack/cocaine disparity objection w as preserved, and we used limited remand s 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. 2 008). Then we held t hat sentencing un der 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 re versed 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 betwe en the two forms of cocaine

.No. 14

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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 Kim brough 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 for feiture 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 overlo ok 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 forfeitu re and consider it.
The final problem is that we do not have enough information in the record to determine whether trial co unsel performed deficiently. We do not know, for example, whether the district court credited Shields’s claims regarding his conversations with trial counsel. Accordingly, we V ACATE the judgment of the district court and R EMAND for further proceedings to d evelop the record relating to Shields’ s ineffective assistance claim.