[DO NOT PUBLISH]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

____________________

USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 1 of 6
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’ contentions 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 possession 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 pornography. 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. 

USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 2 of 6
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 pornography 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 lowered 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. Second, and in any event, it found that Colon had knowingly placed 

child pornography in shared files such that he knowingly distributed child pornography even under Amendment 801. Finally, it 

noted that there would be no prejudice because a two-level reduction 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, 

USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 3 of 6
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 Commission . . . 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. Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1210 (11th Cir. 1981) (en banc).

USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 4 of 6
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 application 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 sentencing, 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 Guidelines—or “clarifying amendments”—that are not listed in subsection (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 context of a § 3582(c)(2) reduction of a term of imprisonment, an 

amendment, whether clarifying or not, may be applied retroactively 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. 

USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 5 of 6
6 Opinion of the Court 22-14177

See id. § 1B1.10(a)(1); 18 U.S.C. § 3582(c)(2). Likewise, Colon’s argument concerning the difference between clarifying and substantive amendments is inapplicable here, because that rule only determines 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 presented 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 correct 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. 

USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 6 of 6