### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 15

- 1108
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

S TEVEN P. N ICHOLS , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Central District of Illinois

. No. 10 cr 40053

- 004

— Michael M. Mihm , Judge

.

____________________
S UBMITTED M AY 15, 2015 *

— D ECIDED J UNE 17, 2015

____________________

Before W OOD , Chief Judge , and C UDAHY and R IPPLE , Ci rcuit Judges

. W OOD , Chief Judge

. After he was convicted on drug

related charges, Steven Nichols was sentenced to 127 months in prison and five years of supervised release. A year later, in

* After examining the briefs and record, we have concluded that oral argument is unnecessary. T he appeal is therefore submitted on the brief s and record. See F ED

. R. A PP

. P. 34(a)(2)(A)

.2 No. 15

- 1108

response to a government motion und er Federal Rule of Criminal Procedure 35(b), the court reduced the sentence to 88 months. Later, in the hopes of securing an additional r eduction, Nichols filed a motion under 18 U.S.C. § 3582(c). The district court lopped off another five months, leaving Nichols with a sentence of 83 months. Nichols takes the pos ition that the court used the wrong baseline and thus did not give him a generous enough reduction. He is mistaken: the court did not err, and Nichols is thus not entitled to further relief.
The o riginal 127

- month sentence Nichols received fo llowed his guilty plea to charges of conspiracy to manufa cture, distribute, and possess with intent to distribute met hamphetamines. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A). His guideline range was 151 to 188 months, but the district court concluded that a below

- range sentence was appropr iate. He earned the reduction to 88 months based on his su bstantial assistance to the government, see F ED

. R. C RIM

. P. 35(b). In November 2014, Nichols moved under § 3582(c )(2) for a further sentence reduction to 51 months’ imprisonment, based on the retroactive application of Amendment 782 to the S entencing G uidelines. This amendment lowered by two levels the offense levels specified in the Drug Quantity Table, see U.S.S.G. Supp. App., C amend. 782 (2014), and reduced Nichols’s guidelines range to 121 to 151 months. See U.S.S.G. § 2D1.1(c)(5) (2014). The district court appointed the Federal Public Defender’s office to represent Nichols

. Although a court normally does not ha ve discretion in a proceeding under § 3582 to impose a sentence below the amended guidelines range, see i d. § 1B1.10(b)(2)(A) , there isNo. 15

- 1108 3

an exception to that rule. The court is authorized to give a comparable, below

- guidelines reduction if the offender pr ev iously received a below

- guidelines sentence because of substantial assistance. Id. § 1B1.10(b)(2)(B); see United States v. Glover , 686 F.3d 1203, 1207 (11th Cir. 2012). That exception applied to Nichols. He had received a 30% reduction below his original 1 27

- month sentence when the district court r educed his sentence to 88 months in response to the gover nment’s Rule 35(b) motion based on his substantial assistance

. To enable Nichols to receive the same benefit under the amended guideline, the public defende r and government jointly requested a reduction to 83 months (83 months is a pproximately 30% below 121 months

— the bottom of the amended guideline range). The court granted the jointly r equested reduction to 83 months. (The sentencing order states, as the Co mmission requires , that the reduction wil l not take effect until November 1, 2015. This delay in the ex ecution of a sentence does not affect its finality or appealabi lity. See Berman v. United States , 302 U.S. 211, 212

– 13 (1937).) On appeal from the disposition of his § 3582 motion, Nichols, now pro se , argues that he should have received a greater reduction. He believes that he is entitled to a redu ction to 74 months’ imprisonment to account for his substa ntial assis tance. He adds in his rep ly brief that he did not “consent” to the public defender’s and government’s joint motion. Neither point is well taken. Nichols never co mplained about his lawyer’s representation during the § 3582 proceedings, and it is too late now for him to do so. At th is point, he is bound by the acts of his lawyer over “what a rguments to pursue.” New York v. Hill , 528 U.S. 110, 114

– 15 (2000); see also United States v. Johnson , 580 F.3d 567, 569

– 70 (7th Cir. 2009); United States v. Boyd , 86 F.3d 719, 723 (7th Cir.4 No. 15

- 1108

1996) . Because Nichols (through his lawyer) argued for and received an 83

- month sentence, Nichols has waived any a rgument for a different sentence. See United States v. Turner, 651 F.3d 743, 747 (7th Cir. 2011). Even if waiver were not a bar, Nichols could not succeed. T he district court’s decision whether to reduce a sentence under § 3582(c)(2) is discretionary. See United States v. Pu rnell , 701 F .3d 1186, 1189 (7th Cir. 2012). The district court ’s decision here was a sound one. It reasonably granted a r educti on in Nichols’s sen tence; that reduction took into a ccount his substantial assistance and adjusted the sentence by the same proportion that it had used for the reduction Nic hols received before the guidelines were amended.
A FFIRMED

.