PUBLISH UNITED STATES CO URT OF APPEALS

FOR THE TENTH CIRCUIT

In re: RUFUS TAIWAN SHINES,

Movant. No. 12-6208 (D.C. Nos. 5:12-CV-00414-R & 5:10-CR-00272-R-1) (W.D. Okla.)

ORDER

Before BRISCOE , Chief Judge, EBEL and HOLMES , Circuit Judges.

PER CURIAM

.

Rufus Taiwan Shines, a federal pr isoner, moves through counsel for

authorization to file a second or successi ve 28 U.S.C. § 2255 mo tion challenging his sentence. We deny authorization. Mr. Shines was convicted after a jury tr ial on one count of simple possession of 24.3 grams of a mixture containing cocaine base (i.e ., crack cocaine), and one count of being a felon in possession of a fi rearm. His offenses occurred on March 2, 2010, and his conviction o ccurred on October 26, 2010. He was sentenced on April 22, 2011, to 60 months ’ imprisonment on each count, to run concurrently, and three years of supervised release on each coun t, also to run conc urrently. According to Mr. Shines’s proposed § 2255 motion, his advisory sentencing range under the FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court- 2 - United States Sentencing Guid elines for both offenses was 37-46 months, but his

60-month sentence was based on the version of 21 U.S.C. § 844 in effect at the time of his offense, which mandated a five-yea r minimum sentence fo r a first conviction of simple possession of 5 grams or more of crack cocaine. Mr. Sh ines filed a direct appeal but voluntarily dism issed it. He later filed a § 2255 motion, which was denied, and he voluntarily dismi ssed an appeal from that denial. In his application for authorization, Mr . Shines relies on the Supreme Court’s

recent decision in Dorsey v. United States , 132 S. Ct. 2321 (2012)

. In Dorsey , the Court held that “the Fair Sentencing Ac t’s new, lower manda tory minimums [for crack cocaine offenses] apply to the post- Act sentencing of pre-Act offenders.” 132 S. Ct. at 2335. The Fair Sentencing Act (FSA) of 2010, Pub. L. No. 111-120, 124 Stat. 2372, took effect A ugust 3, 2010, which was afte r Mr. Shines’s offense but before his sentencing. In relevant part , the FSA eliminated the mandatory minimum five-year sentence that was applied to Mr. Shines. See § 3, 124 Stat. at 2372 (striking the sentence of § 844 that provided manda tory minimum sentences for simple possession of cocaine base); Dorsey , 132 S. Ct. at 2329 (“The Act also eliminated the 5-year mandatory minimum for simple pos session of crack.”). In his proposed § 2255 motion, Mr. Shines states that th e FSA reduced the punishment for simple possession, as applicable to him, to a mandatory minimum sentence of 15 days’ imprisonment and a maximum sentence of two years’ imprisonment. See 21 U.S.C. § 844 (“Any person who violat es this subsection may be sentenced to a term of- 3 - imprisonment of not more than 1 year, a nd shall be fined a minimum of $1,000, or both, except that if he commits such o ffense after a prior conviction under this subchapter or subchapter II of this ch apter, or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be se ntenced to a term of imprisonmen t for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2,500 . . . .”). Thus, the relief he seeks in his prop osed § 2255 motion is for the district court to vacate his five-year sentence, resentence him consistent with the advisory range, and reduce his term of supervised release to one year in acco rdance with a revised statutory penalty.

In order to file a second or successive § 2255 motion in the district court,

Mr. Shines must first obtain our authorization. See 28 U.S.C. § 2255(h); id. § 2244(b)(3). This court may authorize a claim only if Mr. Sh ines makes a prima facie showing that the claim relies on (1) “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [him] guilty of the offense”; or (2) “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme C ourt, that was previously unavailable.”

Id. § 2255(h); see also id. § 2244(b)(3)(C). Mr. Shines relies on § 2255(h)(2), claiming that Dorsey announced a new rule of law. However, Dorsey did not announce a new rule of constitutional law, as required by § 2255(h )(2). Instead, Dorsey concerned statutory interpretation. The- 4 - Court characterized the issue before it as follows: “The underlying question before us is one of congressional in tent as revealed in the Fa ir Sentencing Act’s language, structure, and basic objectiv es. Did Congress in tend the Act’s more lenient penalties to apply to pre-Act offenders senten ced after the Act took effect?” Dorsey , 132 S. Ct. at 2326. And nothing in the Court’s analysis sugge sts a new rule of constitutional law. Because new statutory interpretations cannot be raised in a

second or successive § 2255 motion, see Brace v. United States , 634 F.3d 1167, 1170 (10th Cir. 2011), we DENY Mr . Shines’s motion for authori zation. This denial of authorization “shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S. C. § 2244(b)(3)(E).