USA v. Steven P. Nichol

Filing

Filed opinion of the court by Chief Judge Wood. AFFIRMED. Diane P. Wood, Chief Judge; Richard D. Cudahy, Circuit Judge and Kenneth F. Ripple, Circuit Judge. [6670967-1] [6670967] [15-1108]

Case: 15-1108

Document: 12

Filed: 06/17/2015

Pages: 4

In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-1108
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEVEN P. NICHOLS,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 10 cr 40053-004 — Michael M. Mihm, Judge.

____________________
SUBMITTED MAY 15, 2015 * — DECIDED JUNE 17, 2015
____________________
Before WOOD, Chief Judge, and CUDAHY and RIPPLE, Circuit Judges.
WOOD, Chief Judge. After he was convicted on drugrelated 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. The appeal is therefore submitted on the briefs
and record. See FED. R. APP. P. 34(a)(2)(A).

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response to a government motion under Federal Rule of
Criminal Procedure 35(b), the court reduced the sentence to
88 months. Later, in the hopes of securing an additional reduction, 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 position 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 original 127-month sentence Nichols received followed his guilty plea to charges of conspiracy to manufacture, distribute, and possess with intent to distribute methamphetamines. 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 appropriate. He earned the reduction to 88 months based on his substantial assistance to the government, see FED. R. CRIM. 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 Sentencing Guidelines. 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 have discretion in a
proceeding under § 3582 to impose a sentence below the
amended guidelines range, see id. § 1B1.10(b)(2)(A), there is

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an exception to that rule. The court is authorized to give a
comparable, below-guidelines reduction if the offender previously 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 127-month sentence when the district court reduced his sentence to 88 months in response to the government’s Rule 35(b) motion based on his substantial assistance.
To enable Nichols to receive the same benefit under the
amended guideline, the public defender and government
jointly requested a reduction to 83 months (83 months is approximately 30% below 121 months—the bottom of the
amended guideline range). The court granted the jointly requested reduction to 83 months. (The sentencing order
states, as the Commission requires, that the reduction will
not take effect until November 1, 2015. This delay in the execution of a sentence does not affect its finality or appealability. 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 reduction to 74 months’ imprisonment to account for his substantial assistance. He adds in his reply brief that he did not
“consent” to the public defender’s and government’s joint
motion. Neither point is well taken. Nichols never complained about his lawyer’s representation during the § 3582
proceedings, and it is too late now for him to do so. At this
point, he is bound by the acts of his lawyer over “what arguments 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.

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1996). Because Nichols (through his lawyer) argued for and
received an 83-month sentence, Nichols has waived any argument 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.
The district court’s decision whether to reduce a sentence
under § 3582(c)(2) is discretionary. See United States v. Purnell, 701 F.3d 1186, 1189 (7th Cir. 2012). The district court’s
decision here was a sound one. It reasonably granted a reduction in Nichols’s sentence; that reduction took into account his substantial assistance and adjusted the sentence by
the same proportion that it had used for the reduction Nichols received before the guidelines were amended.
AFFIRMED.