                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                February 23, 2004

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 03-50932
                         Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

HARRY SCHREIBER,

                                    Defendant-Appellant.

                        --------------------
           Appeal from the United States District Court
                 for the Western District of Texas
                     USDC No. A-95-CR-130-1-JN
                        --------------------

Before HIGGINBOTHAM, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*

     Harry Schreiber, federal prisoner # 40454-004, appeals the

district court’s denial of his motion to reduce his sentence

imposed following his conviction for conspiracy to commit wire

fraud, five counts of wire fraud, and three counts of bankruptcy

fraud.   Schreiber was sentenced to a term of imprisonment of 120

months to be followed by a three-year term of supervised release,

and was ordered to pay a fine of $80,000 and restitution in the

amount of $354,253.   On direct appeal, the court vacated two

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 03-50932
                                 -2-

of the wire fraud convictions and remanded the case for

resentencing.    The district court imposed the same sentence.

     Schreiber argues that the district court erred in

determining that he was precluded from seeking collateral relief

based on a waiver contained in a sentencing agreement reached

with the Government following his guilty plea and the remand for

resentencing.

     The court has not addressed the binding effect of a waiver

contained in a posttrial sentencing agreement.    However, it is

unnecessary to determine the validity of the waiver because

Schreiber’s claims are without merit.

     Schreiber argues that he is entitled to have his sentence

reduced pursuant to Amendment 617 to the Sentencing Guidelines

because that amendment merely clarified the applicable guideline.

Because Amendment 617 is not listed as an amendment to be applied

retroactively in U.S.S.G. § 1B1.10(c), Schreiber is not entitled

to take advantage of the change whether it contained substantive

changes or clarified the amendment.     United States v. Drath,

89 F.3d 216, 217 (5th Cir. 1996).

     Schreiber also argues that his offense level was improperly

raised pursuant to U.S.S.G. § 2F1.1(b)(3) for a violation of

a judicial order because orders of a bankruptcy court were

not included order prior to the enactment of Amendment 597.

He argues that Amendment 597 was improperly applied

retroactively.    This argument is not cognizable in a 18 U.S.C.
                            No. 03-50932
                                 -3-

§ 3582(c)(2) motion.    The district court did not abuse its

discretion in denying Schreiber’s motion to reduce his sentence.

     Schreiber argues that the district court erred in denying

his FED. R. CIV. P. 60(b) motion based on untimeliness and on the

merits.    The district court did not grant or deny Schreiber a

certificate of appealability (COA) to appeal the denial of

his FED. R. CIV. P. 60(b) motion.   Because he is seeking

reconsideration of the merits of the denial of his 28 U.S.C.

§ 2255 motion, Schreiber should have obtained a COA ruling on

the denial of his FED. R. CIV. P. 60(b) motion.   Cf. Dunn v.

Cockrell, 302 F.3d 491, 492 & n.1 (5th Cir. 2002).

     However, because this appeal also involved a review of the

denial of the 18 U.S.C. § 3582 motion, Schreiber has had the

benefit of a full appeal without obtaining an order granting COA.

In the interest of judicial economy, the case will not be

remanded to obtain a COA ruling by the district court.

     Because Schreiber is challenging the validity of his

underlying fraud convictions, his FED. R. CIV. P. 60(b) motion

should have been construed as a successive 28 U.S.C. § 2255

motion.    See Fierro v. Johnson, 197 F.3d 147, 151 (5th Cir.

1999).    Prior to filing the successive motion, Schreiber was

required to obtain authorization to file the successive motion.

28 U.S.C. §§ 2244(b)(3)(A), 2255.    Because Schreiber failed to

obtain such authorization, the district court did not err in

denying the motion.
            No. 03-50932
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AFFIRMED.
