USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 1 of 6
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-14177
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MIGUEL MORALES COLON,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:13-cr-60166-WPD-1
____________________
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2 Opinion of the Court 22-14177
Before LAGOA, BRASHER, and ANDERSON, Circuit Judges.
PER CURIAM:
Miguel Morales Colon, a federal prisoner proceeding pro se,
appeals the district court’s order denying his motion under
18 U.S.C. § 3582(c)(2). Rather than responding, the government
moves for summary affirmance. We address the parties’ conten-
tions in turn.
I.
In 2013, Colon was charged with one count of receipt of
child pornography, based on an event occurring on June 20, 2013,
in violation of
18 U.S.C. § 2252(a)(2) (“Count One”); and one count
of possession of child pornography, based on an event taking place
the following day, in violation of
18 U.S.C. § 2252(a)(4)(B) and
(b)(2) (“Count Two”). After a trial, a jury found Colon guilty on
both counts.
The presentence investigation report later assigned Colon 2
points under U.S.S.G. § 2G2.2(b)(3)(F) because the receipt and pos-
session offenses also involved distribution of child pornography.
Colon objected to this two-level increase both before sentencing
and at sentencing, asserting that he did not distribute child pornog-
raphy. Making a finding that Colon had knowingly distributed
child pornography, the court overruled the objection. The court
sentenced Colon to 240 months’ imprisonment as to each count,
set to run concurrently, and 5 years of supervised release.
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22-14177 Opinion of the Court 3
Later, Colon, proceeding pro se, moved the district court to
reduce his total sentence under
18 U.S.C. § 3582(c)(2), based on
Amendment 801 to the Sentencing Guidelines. He contended that
Amendment 801 was implemented, in part, to address a circuit split
as to whether a defendant had to “knowingly” distribute child por-
nography to be eligible for the two-level offense level enhancement
under U.S.S.G. § 2G2.2(b)(3)(F). He also asserted that Amendment
801 should apply because there was no evidence presented as to his
mental state. He asserted that the amendment would have low-
ered his guideline range to 168-210 months’ imprisonment.
The district court denied Colon’s motion, setting forth three
bases for this ruling. First, it found that Amendment 801 was a
substantive amendment, not a merely clarifying amendment. Sec-
ond, and in any event, it found that Colon had knowingly placed
child pornography in shared files such that he knowingly distrib-
uted child pornography even under Amendment 801. Finally, it
noted that there would be no prejudice because a two-level reduc-
tion of his offense level under the guidelines would have caused it
to vary upwards to 240 months. Accordingly, it also denied the
motion as a matter of discretion.
This appeal followed.
II.
Summary disposition is appropriate where “the position of
one of the parties is clearly right as a matter of law so that there can
be no substantial question as to the outcome of the case, or where,
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4 Opinion of the Court 22-14177
as is more frequently the case, the appeal is frivolous.” Groendyke
Transp., Inc. v. Davis,
406 F.2d 1158, 1161-62 (5th Cir. 1969). 1 We
review de novo a district court’s legal conclusions regarding the
scope of its authority under the Sentencing Guidelines in a
§ 3582(c)(2) proceeding. United States v. Anderson,
772 F.3d 662,
666 (11th Cir. 2014).
Once a sentence of imprisonment has been pronounced, a
district court’s authority to modify it is narrowly limited by statute.
United States v. Phillips,
597 F.3d 1190, 1194-95 (11th Cir. 2010). A
district court may modify a defendant’s term of imprisonment
where the defendant was sentenced “based on a sentencing range
that has subsequently been lowered by the Sentencing Commis-
sion . . . if such a reduction is consistent with the applicable policy
statements issued by the Sentencing Commission.”
18 U.S.C.
§ 3582(c)(2). To obtain a reduction in a term of imprisonment
based on an amendment to the Sentencing Guidelines, the relevant
amendment must be listed in U.S.S.G. § 1B1.10(d). U.S.S.G.
§ 1B1.10(a)(1).
Amendment 801, which became effective in November 2016
after Colon was sentenced in 2013, revised the language of U.S.S.G.
§ 2G2.2(b)(3)(F) from “[i]f the offense involved . . . distribution
other than distribution described in subdivisions (A) through (E),”
to “If the defendant knowingly engaged in distribution, other than
1 We are bound by decisions issued by the former Fifth Circuit. Bon-
ner v. City of Prichard, Ala.,
661 F.2d 1206, 1210 (11th Cir. 1981) (en banc).
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22-14177 Opinion of the Court 5
described in subdivisions (A) through (E).” U.S.S.G. amend. 801
(emphasis added). Importantly, Amendment 801 is not one of the
listed amendments in the policy statement in § 1B1.10(d). Id.
§ 1B1.10(d).
On direct appeal, we typically review the district court’s ap-
plication of the Guidelines using the version in effect on the date of
sentencing. United States v. Jerchower,
631 F.3d 1181, 1184 (11th
Cir. 2011). However, we will consider clarifying amendments to
the Guidelines on direct appeal, regardless of the date of sentenc-
ing, because the amendments do not represent a substantive
change in the Guidelines.
Id. Unlike with clarifying amendments,
however, we will not apply substantive amendments retroactively.
Id.
Amendments to the commentary of the Sentencing Guide-
lines—or “clarifying amendments”—that are not listed in subsec-
tion (d) may be applied retroactively “only in the context of a direct
appeal and a
28 U.S.C. § 2255 habeas petition.” United States v.
Armstrong,
347 F.3d 905, 908-09 & n.6 (11th Cir. 2003). In the con-
text of a § 3582(c)(2) reduction of a term of imprisonment, an
amendment, whether clarifying or not, may be applied retroac-
tively only if it is listed in U.S.S.G. § 1B1.10(d). Id. at 909.
Here, the district court did not err. Amendment 801, which
Colon based his instant § 3582(c)(2) motion upon, is not listed in
§ 1B1.10(d). See U.S.S.G. § 1B1.10(d). Therefore, the district court
could not reduce his term of imprisonment because Amendment
801 was not retroactively applicable in § 3582(c)(2) proceedings.
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6 Opinion of the Court 22-14177
See id. § 1B1.10(a)(1);
18 U.S.C. § 3582(c)(2). Likewise, Colon’s ar-
gument concerning the difference between clarifying and substan-
tive amendments is inapplicable here, because that rule only deter-
mines whether an amendment is retroactive on direct appeal, not
during § 3582(c)(2) proceedings. See Jerchower,
631 F.3d at 1184;
Armstrong,
347 F.3d at 909. Accordingly, the district court lacked
the authority to modify Colon’s total sentence and properly denied
his § 3582(c)(2) motion. See Phillips,
597 F.3d at 1194-95.
Moreover, as the district court found, the evidence pre-
sented at trial and compiled in the presentence investigation report
supported a conclusion that Colon had knowingly engaged in the
distribution of child pornography. And the district court made
such a finding at sentencing. Accordingly, Colon would not benefit
from Amendment 801 even if it were retroactively applicable.
For these reasons, the government’s position is clearly cor-
rect as a matter of law, and we GRANT its motion for summary
affirmance.
AFFIRMED. 2
2 We DENY as moot the Government’s motion to stay the briefing schedule.
