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[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 22-14177 Non-Argument Calendar ____________________ UNITED STATES OF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 ____________________ USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 2 of 6

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 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, USCA11 Case: 22-14177 Document: 16-1 Date Filed: 05/11/2023 Page: 4 of 6

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

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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 was not retroactively applicable in § 3582(c)(2) proceedings.

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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.