                                                                                      FILED
                                                                          United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                              Tenth Circuit

                             FOR THE TENTH CIRCUIT                                July 3, 2017
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                            No. 17-5039
                                                (D.C. Nos. 4:12-CV-00607-CVE-TLW &
STEVEN FISHMAN,                                         4:07-CR-0195-CVE-4)
                                                              (N.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before KELLY, BRISCOE, and LUCERO, Circuit Judges.
                   _________________________________

       Steven Fishman, a federal prisoner appearing pro se, requests a certificate of

appealability (COA) to appeal the district court’s dismissal of his “Motion for Relief

from a Judgment or Order Due to a Disparity in Sentencing between Defendant Fishman

and Co-Defendant Thornburgh,” ostensibly filed under Fed. R. Civ. P. 60(b)(1) and (6).

The district court determined the motion was in substance a second or successive motion

for relief under 28 U.S.C. § 2255, and dismissed it for lack of the circuit authorization

required by 28 U.S.C. § 2244(b)(3). Because the correctness of that disposition is not




       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
debatable by reasonable jurists, we deny a COA and dismiss this appeal. See Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (stating standard for COA).

                                   I. BACKGROUND

       Mr. Fishman was convicted by a jury of conspiracy to commit mail and wire fraud

and conspiracy to commit money laundering, for which he was sentenced to 262 months’

imprisonment. See United States v. Fishman, 645 F.3d 1175, 1180 (10th Cir. 2011)

(affirming conviction and sentence). In 2012, he filed a § 2255 motion that included a

sentencing challenge regarding the calculation of his criminal history. The disposition of

that challenge is necessary to an understanding of the motion under review here.

       The § 2255 motion claimed, inter alia, that (1) the district court had erroneously

relied on a prior obstruction-of-justice conviction to raise Mr. Fishman’s criminal history

from Category II to Category III, increasing his sentencing guideline range from 235-293

months to 262-327 months; and (2) his counsel had rendered ineffective assistance by

failing to object to this error. Noting that the sentence for the obstruction conviction was

imposed on the same day as the sentence for another prior conviction (for mail fraud)

also counted in his criminal history, he contended that use of the obstruction conviction

amounted to double counting precluded by United States Sentencing Guideline Manual

(USSG) § 4A1.2(a)(2). That section provides:

       If the defendant has multiple prior sentences, determine whether those
       sentences are counted separately or treated as a single sentence [for
       purposes of calculating criminal history points under USSG § 4A1.1].
       Prior sentences always are counted separately if the sentences were
       imposed for offenses that were separated by an intervening arrest (i.e., the
       defendant is arrested for the first offense prior to committing the second
       offense). If there is no intervening arrest, prior sentences are counted

                                             2
       separately unless (A) the sentences resulted from offenses contained in the
       same charging instrument; or (B) the sentences were imposed on the same
       day. Treat any prior sentence covered by (A) or (B) as a single sentence
(Emphasis added). The district court rejected this claim because, according to undisputed

facts recounted in the presentence investigation report (PSR), there was an intervening

arrest between the two offenses: Mr. Fishman committed the obstruction offense after his

arrest on the mail-fraud charge (indeed, the obstruction involved an attempt to fabricate

evidence supporting his defense in the mail-fraud prosecution).1 This court denied a

COA and dismissed Mr. Fishman’s ensuing appeal, in which he raised only new issues

not included in his § 2255 motion. See United States v. Fishman, 608 F. App’x 711, 712

(10th Cir. 2015).

       In January 2017, Mr. Fishman’s co-defendant, Joseph Thornburgh, successfully

challenged his sentence on the basis of a double-counting violation under

USSG § 4A1.1(a)(2). Like Mr. Fishman, Mr. Thornburgh was assessed separate criminal

history points for two convictions on which sentence had been imposed the same day.

But in his case, the PSR stated that details about the convictions were unavailable, and

the government conceded in response to Mr. Thornburgh’s § 2255 motion that the

imposition of separate criminal history points was improper. On resentencing,

Mr. Thornburgh received a substantially shorter term.



       1
         Mr. Fishman’s argument in the § 2255 proceedings reflected a mistaken belief
that the intervening-arrest condition in § 4A1.1(a)(2) requires a second arrest for the
subsequent offense (here the obstruction charge). But the plain terms of that provision—
and common sense—make it clear all that is required is that the “defendant [be] arrested
for the first offense prior to committing the second offense.”
                                             3
       After learning of Mr. Thornburgh’s success, Mr. Fishman filed the instant motion,

ostensibly under Rule 60(b). He contended that his double-counting claim (which he

insisted was indistinguishable from Thornburgh’s) had been valid, that the district court

mistakenly denied the claim in his prior § 2255 proceeding, and that the resultant

sentence disparity now evident between the two co-defendants required reconsideration

of his sentence in light of 18 U.S.C. § 3553(a)(6).2 The district court deemed the motion

to be an unauthorized second or successive § 2255 motion and dismissed it for lack of

jurisdiction consistent with In re Cline, 531 F.3d 1249 (10th Cir. 2008), concluding that a

transfer to this court for possible authorization under § 2255(h) was unwarranted because

there was “no risk that a meritorious successive claim [would] be lost,” id. at 1252.

                                    II. DISPOSITION

       The district court was, beyond debate, correct in treating Mr. Fishman’s motion as

an unauthorized second or successive § 2255 motion. To the extent the motion reasserted

the § 4A1.1(a)(2) challenge to his sentence rejected in his prior § 2255 proceeding, it fell

squarely within the established rule that a prisoner cannot evade second-or-successive

constraints by invoking Rule 60(b) if his motion “in substance or effect asserts or

reasserts a federal basis for relief from [his] underlying conviction [or sentence].”

Spitznas v. Boone, 464 F.3d 1213, 1215 (10th Cir. 2006) (explaining and applying




       2
        Section 3553(a)(6) specifies as one of the factors to be considered in sentencing
“the need to avoid unwarranted sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”

                                              4
Gonzalez v. Crosby, 545 U.S. 524, 538 (2005)).3 To the extent the motion asserted that

the district court wrongly decided the § 4A1.1(a)(2) claim in the prior proceeding, it fell

squarely within the associated principle that Rule 60(b) does not apply if a prisoner seeks

to vindicate a claim denied in a prior § 2255 proceeding “by challenging the [district]

court’s previous ruling on the merits of that claim.”4 Id. at 1216; see also Gonzalez,

545 U.S. at 532. And the associated objection regarding sentence disparity was

inseparably tied to and dependent upon the underlying § 4A1.1(a)(2) claim.5

       It is also beyond debate that the district court properly exercised its discretion to

dismiss rather than transfer Mr. Fishman’s motion to this court for possible authorization

under § 2255(h). Nothing in the motion suggests he could meet the requirements for

authorization. His sentencing challenge, in contrast to a challenge to conviction, cannot

satisfy the requirement in § 2255(h)(1) that the prisoner present new evidence to show

“that no reasonable factfinder would have found him guilty of the [underlying] offense.”

(Emphasis added). Nor does his challenge rely on a “new rule of constitutional law,


       3
        Gonzalez and Spitznas arose in the habeas context, but we have applied their
holdings in the context of § 2255 motions as well. See, e.g., United States v. Baker,
718 F.3d 1204, 1207 (10th Cir. 2013).
       4
         Mr. Fishman challenged the previous denial of his claim on the merits; he did not
challenge “a procedural ruling . . . which precluded a merits determination” or “a defect
in the integrity of the [§ 2255] proceeding,” Spitznas, 464 F.3d at 1216.
       5
         In his appellate brief Mr. Fishman advances additional complaints regarding the
disparity between his sentence and that ultimately imposed on Mr. Thornburgh when
Thornburgh was resentenced. But our review here is limited to the grounds asserted by
Mr. Fishman in the motion dismissed by the district court, in which he relied solely on
the divergent outcomes of the § 4A1.1(a)(2) objections asserted by the co-defendants in
their respective § 2255 motions, see Aplt. Opening Br. and App. for a COA, Ex. A.
                                              5
made retroactive to cases on collateral review by the Supreme Court,” as required to

satisfy § 2255(h)(2). Moreover, as the district court noted (and indeed determined in

connection with Mr. Fishman’s prior § 2255 motion), his § 4A1.1(a)(2) claim itself lacks

merit.

         The request for a COA is denied and the appeal is dismissed.


                                              Entered for the Court



                                              ELISABETH A. SHUMAKER, Clerk




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