[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13906

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

WILFRIDO FLOREZ-MONTANO, 

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:02-cr-00228-JSM-JSS-9

____________________

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2 Opinion of the Court 21-13906

Before JORDAN, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Wilfrido Florez-Montano, a Columbian national and federal 

prisoner proceeding pro se, appeals the denial of his motion to reduce his sentences under 18 U.S.C. § 3582(c)(2) and Amendment 

782 to the U.S. Sentencing Guidelines. The government, in turn, 

moves for summary affirmance and to stay the briefing schedule. 

For the reasons stated below, we grant the government’s motion 

for summary affirmance and deny its motion to stay the briefing 

schedule as moot.

I. 

As brief background, in 2002, a jury found Florez-Montano 

guilty of: (1) one count of possession with intent to distribute five 

kilograms or more of cocaine while aboard a vessel subject to the 

jurisdiction of the United States; and (2) one count of conspiracy to 

possess with intent to distribute five or more kilograms of cocaine 

while aboard a vessel subject to the jurisdiction of the United 

States. At trial, the evidence showed that a United States Coast 

Guard vessel had searched a fishing vessel and found two guns and 

268 packages of cocaine totaling 4,665 kilograms of cocaine. 

Florez-Montano acted as a crew member on that fishing vessel. 

Florez-Montano was sentenced by the district court to 292 

months’ imprisonment, based on a sentencing guidelines calculation of a total offense level of 40 and a criminal history category I. 

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He appealed, but we affirmed his sentence. See United States v. 

Estrada-Tello, 99 F. App’x 879 (11th Cir. 2004).1

In 2014, after filing a series of motions not relevant to this 

appeal, Florez-Montano filed a pro se motion to modify or reduce 

his sentence under 18 U.S.C. § 3582(c)(2) and Amendment 782 of 

the Sentencing Guidelines. The probation office issued a memorandum addressing his eligibility for a reduction and found that he 

was ineligible for a reduction because the Drug Quantity Table remained the same at level 38 for 4,665 kilograms of cocaine. The 

district court also appointed counsel for the purpose of seeking to 

reduce his sentence under 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 

1B1.10, but the Federal Public Defender’s office announced that it 

would not be filing a motion for a sentence reduction based on the 

same reasoning. The district court denied this motion.

In 2021, Florez-Montano filed this motion and once again 

sought to reduce his sentence under § 3582(c)(2) and Amendment 

782, arguing that the amendment applied and would reduce his total sentence by 58 months. He also argued that he had exemplary 

conduct in prison and had completed post-sentencing rehabilitation. The district court once again denied his motion, finding that 

his drug quantity exceeded the eligibility threshold such that 

Amendment 782 would not lower his base offense level. This appeal ensued.

1 Angel Neri Estrada-Tello was a codefendant in Florez-Montano’s case.

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II. 

On appeal, Florez-Montano argues that the district court did 

not consider his current motion and intervening facts or law when 

it denied his motion. Specifically, he asserts that the court did not 

consider his post-sentencing rehabilitation efforts. He also argues 

for the first time on appeal that he was not subject to a final order 

of removal, other inmates had been released which created sentencing disparities, and the district court abused its discretion by 

not appointing him counsel. 

In response, the government moves for summary affirmance, arguing that the district court could not have reduced 

Florez-Montano’s sentence because Amendment 782 does not 

lover his guideline range and that he had previously been appointed counsel.

Summary disposition is appropriate either where time is of 

the essence, such as “situations where important public policy issues are involved or those where rights delayed are rights denied,” 

or 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, as is more frequently the case, the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 

1162 (5th Cir. 1969).2

2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), 

we adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981.

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We review de novo a district court’s legal conclusions about 

the Sentencing Guidelines and the scope of its authority under 18 

U.S.C. § 3582(c)(2). United States v. Davis, 587 F.3d 1300, 1303 

(11th Cir. 2009). We liberally construe pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). But

we review arguments brought for the first time on appeal only for 

plain error. United States v. Anderson, 1 F.4th 1244, 1268 (11th Cir. 

2021); Fed. R. Crim. P. 52; see also United States v. Fair, 326 F.3d 

1317, 1318 (11th Cir. 2003) (holding that a § 3582(c)(2) motion is 

criminal). “Plain error occurs when (1) there was an error, (2) the 

error was plain or obvious, (3) the error affected the defendant’s 

substantial rights, and (4) the error seriously affected the fairness, 

integrity, or public reputation of the judicial proceedings.” Anderson, 1 F.4th at 1268–69. To satisfy the plain error rule, an asserted 

error must be clear from the plain meaning of a statute or constitutional provision or from a holding of the Supreme Court or this 

Court directly resolving it. United States v. Morales, 987 F.3d 966, 

976 (11th Cir.), cert. denied, 142 S. Ct. 500 (2021). 

Ordinarily, a district court may not modify a defendant’s 

term of imprisonment once it has been imposed. § 3582(c). But, 

under § 3582(c)(2), a district court may reduce the prison sentence 

of a “defendant who has been sentenced to a term of imprisonment 

based on a sentencing range that has subsequently been lowered 

by the Sentencing Commission.” Accord U.S.S.G. § 1B1.10(a)(1). 

The grounds on which a district court may reduce a defendant’s 

sentence under § 3582(c)(2), however, are narrow. United States 

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v. Berry, 701 F.3d 374, 376 (11th Cir. 2012). For a defendant to be 

eligible for such a reduction, the Sentencing Commission must 

have amended the Sentencing Guidelines, the amendment must 

have lowered the defendant’s sentencing range, and the relevant 

amendment must be listed in U.S.S.G. § 1B1.10(d). See United 

States v. Hamilton, 715 F.3d 328, 337 (11th Cir. 2013); § 3582(c)(2); 

U.S.S.G. § 1B1.10(a)(1) & cmt. n.1(A). The applicable guideline 

range is a defendant’s guideline range before any departures or variances. U.S.S.G. § 1B.10 cmt. n.1(A). When determining the extent 

to which a reduction in a defendant’s term of imprisonment is warranted under § 3582(c)(2), a court “shall determine the amended 

guideline range that would have been applicable to the defendant 

if the amendment(s) . . . had been in effect at the time the defendant 

was sentenced,” but “shall leave all other guideline application decisions unaffected.” Id. § 1B1.10(b)(1). Thus, “[w]here a retroactively applicable guideline amendment reduces a defendant’s base 

offense level, but does not alter the sentencing range upon which 

his . . . sentence was based, § 3582(c)(2) does not authorize a reduction in sentence.” Hamilton, 715 F.3d at 337 (alteration in original) 

(quoting United States v. Moore, 541 F.3d 1323, 1330 (11th Cir. 

2008)). 

Amendment 782 revised the drug quantity tables in U.S.S.G. 

§ 2D1.1 and raised the threshold amount of cocaine required for a 

base offense level of 38 from 150 kilograms to 450 kilograms, resulting in a two-level reduction to the base offense level applicable 

to many drug offenses. See U.S.S.G. app. C, amend. 782 (2014). 

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Because Amendment 782 is one of the listed amendments that applies retroactively, it may serve as the basis for a § 3582(c)(2) motion to reduce sentence. U.S.S.G. §§ 1B1.10(a)(1), (d). 

Finally, a defendant does not have a mandatory constitutional right to counsel in a § 3582(c)(2) motion. United States v. 

Webb, 565 F.3d 789, 794–95 (11th Cir. 2009).

Here, each of Florez-Montano’s contentions is meritless. 

First, the district court properly considered his present § 3582(c)(2) 

motion for a sentence reduction. The court referenced his previous motion for a sentence reduction, but did so to acknowledge his 

previous effort to reduce his total sentence using the same amendment.

Second, Florez-Montano was not entitled to a sentence reduction in 2021, or even when he sought one in 2014,3 under 

Amendment 782. As relevant here, U.S.S.G. § 2D1.1(c)(1) established a base offense level of 38 for 450 kilograms or more of cocaine. Amendment 782 changed the applicable drug threshold to 

450 kilograms of cocaine, see id. app. C, Amend. 782; id.

§ 2D1.1(c)(1), but his offense conduct involved 4,665 kilograms of 

cocaine. That establishes a base offense level of 38, the same as his 

3 Amendment 782 became effective immediately for defendants sentenced on 

or after November 1, 2014. United States v. Maiello, 805 F.3d 992, 995 (11th 

Cir. 2015). But for defendants who, like Florez-Montano, were sentenced 

prior to the effective date, the Sentencing Commission promulgated section 

1B1.10(e), which prohibited any order granting relief under Amendment 782 

from taking effect prior to November 1, 2015. Id.

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previous base offense level. § 2D1.1(c)(1). Using the amended 

guidelines, a total offense level of 40 and a criminal history category 

I establishes a guideline sentencing range of 292 to 365 months’ imprisonment, the same as his previous range. See U.S.S.G., Sentencing Table. Thus, as his guideline range did not change, the district 

court did not have the authority to reduce his total sentence. 

Third, for those arguments that Florez-Montano raises for 

the first time on appeal, even construing pro se filings liberally, his 

assertions regarding not being subject to a final order of deportation and sentencing disparities with other inmates do not show an 

error, let alone an error that is plain. Anderson, 1 F.4th at 1268–69; 

Morales, 987 F.3d 966, 976. As for his appointment of counsel arguments, there is no constitutional required appointed counsel for 

a § 3582(c)(2) proceeding, Webb, 565 F.3d at 794–95, and the Public 

Defender’s Office already appeared and declined to file a brief because of the drug quantity found at sentencing meaning that his 

base offense level remained the same.

Accordingly, because the government’s position is correct as 

a matter of law, we GRANT the government’s motion for summary affirmance and DENY as moot its motion to stay the briefing 

schedule.

AFFIRMED. 

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