NONPRECEDENTIAL DISPOSITION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 February 17, 2010*
Decided February 24, 2010
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 07‐2793
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of Wisconsin.
v. No. 07‐CR‐007‐S‐01
DIAUNTE SHIELDS, John C. Shabaz,
Defendant‐Appellant. Judge.
O R D E R
Diaunte Shields pleaded guilty to possession with intent to distribute crack cocaine.
See 21 U.S.C. § 841(a)(1). Two prior drug convictions, both felonies, qualified him as a
career offender under U.S.S.G. § 4B1.1(a). And because his new crime involved 50 or more
grams of crack and thus carried a possible life sentence, 21 U.S.C. § 841(b)(1)(A)(iii),
*
We granted the appellant’s unopposed motion to waive oral argument. Thus, the
appeal is submitted on the briefs and record. See FED. R. APP. P. 34(f).
No. 07‐2793 Page 2
application of the career‐offender guideline meant an offense level of 37, or 34 after a three‐
level reduction for acceptance of responsibility. See U.S.S.G. §§ 3E1.1(a)‐(b), 4B1.1(b). That
offense level, coupled with the criminal history category of VI mandated by the career‐
offender guideline, yielded an imprisonment range of 262 to 327 months. See U.S.S.G.
§ 4B1.1(b), Ch. 5 Pt. A. At sentencing the district court acknowledged that applying the
career‐offender guideline “significantly increased” Shields’s imprisonment range. But the
court concluded that a sentence in the middle of that range, 290 months’ imprisonment, was
needed to achieve parity with similarly situated offenders and deter him from committing
further crimes. See 18 U.S.C. § 3553(a).
Shields’s sole argument on appeal is that the sentencing court possessed—and
should have exercised—discretion to reject the differences in imprisonment ranges for
offenders involved with crack versus those involved with like amounts of powder cocaine.
He relies principally on Kimbrough v. United States, 552 U.S. 85 (2007), which holds that a
sentencing judge may conclude, even in a “mine‐run case,” that the crack‐to‐powder ratio
underlying the base offense levels in U.S.S.G. § 2D1.1 would produce a sentence greater
than necessary for that particular defendant. Id. at 109‐10; see United States v. Bruce, 550
F.3d 668, 674 (7th Cir. 2008). Shields reasons that the same principle applies to him because
the statutory penalty in § 841(b)(1) that determined his career‐offender range also draws
what he views as an unwarranted distinction between crack and powder cocaine.
Yet Shields did not ask the district court to impose a below‐range sentence on the
basis of a perceived disparity in the career‐offender imprisonment ranges for purveyors of
crack and powder. In general, a district court cannot be faulted for not anticipating
arguments that a defendant might have made but did not make in favor of a lower sentence,
United States v. Filipiak, 466 F.3d 582, 584 (7th Cir. 2006); United States v. Mykytiuk, 415 F.3d
606, 608 (7th Cir. 2005), and even plain‐error review would not benefit Shields, see United
States v. Hearn, 549 F.3d 680, 684 (7th Cir. 2008). Because Shields never asked the district
court to exercise any purported discretion to disagree with the career‐offender guideline, he
would not be entitled to a remand even if the district court did possess such discretion.
AFFIRMED.