                        NONPRECEDENTIAL DISPOSITION
                To be cited only in accordance with Fed. R. App. P. 32.1




                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,                               Appeal from the United States District
    Plaintiff-Appellant,                       Court for the Western District of
                                               Wisconsin.
      v.
                                               No. 3:11-cv-00327
UNITED STATES OF AMERICA,
     Defendant-Appellee.                       William M. Conley,
                                               Chief Judge.

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States v. Shields, 365 F. App’x 691 (7th Cir. 2010) (nonprecedential disposition).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