UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. VERNON EARL COLEMAN, Defendant - Appellant. No. 17-2067 (D.C. No. 2:10-CR-02603-WJ-1) (D. N.M.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before LUCERO , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ Vernon Earl Coleman, a federal prisoner ap pearing pro se, requests a certificate of appealability (COA) to appeal the district court’s dismissal of his “Motion to Correct Sentence.” He was convicted in 20 11 of possession with intent to distribute 100 kilograms and more of marijuana and sent enced to 164 months’ imprisonment. After a number of unsuccessful collateral challenges to his conviction and sentence, he filed the instant motion asking to be sentenced based on a criminal history category of IV and an offense level of 31 (with a further reduction of 3 points for acceptan ce of responsibility),

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 which he claimed had been the judge’s direction at the sentencing hearing. 1 The district court determined that the mo tion 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 correct ness of that disposition is not debatable by reasonable jurists, we de ny a COA and dismiss this appeal. See Slack v. McDaniel , 529 U.S. 473, 484 (2000) (s tating standard for COA). In his combined opening brief and request for a COA, Mr. Coleman just reasserts the substantive claim advanc ed in his motion, without addressing the dispositive jurisdictional deficiency explai ned by the district court. The motion, which sought to remedy an alleged error in his sentence, fe ll squarely under § 22 55 (providing remedy for claim that “sentence was imposed in violati on of the Constitution or laws of the United States . . . or is otherwise s ubject to collateral attack”). See also Caravalho v. Pugh , 177 F.3d 1177, 1178 (10th Cir. 1999) (unless inadequate or ineffective, a motion for relief under § 2255 is “[t]he exclusive remedy for testing the validity of a judgment and sentence” (internal quotation marks omitted)). And, as the district court explained, before a second or successive § 2255 motion may be pursued, the defendant must obtain authorization from the circuit court unde r 28 U.S.C. §§ 2255(h) and 2244(b)(3). See

1 Actually, the court’s statement of reasons for sentence reflects application of the career-offender guideline (consistent with th e presentence report the court expressly adopted) based on prior drug o ffenses, resulting in use of cr iminal history category VI and an offense level of 34 (reduced to 31 for acceptance of responsibility). See United States Sentencing Guideline Ma nual § 4B1.1(b)(2). The court’s reference to category IV in the sentencing excerpt cited by Mr. Cole man is not to the c ontrary; it was simply observing that, with a 24-month downward va riance it was giving Mr. Coleman (for other reasons), the result was consistent with a crim inal history category IV sentence, though the court expressly disavowed de parting downward with respect to criminal history.3 In re Cline , 531 F.3d 1249, 1250 (10th Cir. 2008). M r. Coleman’s failure to do this left the district court with only two options, neith er of which entailed granting him any relief on the merits: either dismiss th e motion for lack of jurisdiction or transfer it to this court to allow Mr. Coleman to seek authorization. See id. at 1252. The district court followed clear circuit precedent in ch oosing the first option. A district court properly exercises its discretion in dismissing rather than transferring an unauthorized s econd or successive § 2255 motion “[w]here there is no risk that a meritorious successive clai m will be lost,” as when the motion “fails on its face to satisfy any of the authoriza tion standards of § 2255(h),” In re Cline , 531 F.3d at 1252. That is the case here. Mr. Coleman’s sentenci ng challenge, in contrast to a challenge to a conviction, cannot satis fy the requirement in § 2255(h )(1) that a prisoner present new evidence to show “that no reasonable factfinder would have found him guilty of the [underlying] offense .” (Emphasis added); see also In re Webster , 605 F.3d 256, 257 (5th Cir. 2010) (noting plai n language of § 2255(h)(1) comp els conclusion that it cannot be satisfied by defendant challenging sentence rather than convic tion). Nor does his claim rely on a “new rule of constitutional la w, made retroactive to cases on collateral review by the Supreme Court,” as required to satisfy § 2255(h)(2). Thus, it would have been patently futile to transfer Mr. Coleman’s claim fo r consideration of authorization under § 2255(h)—as the district cour t made clear in its decision. We deny a COA and dismiss this appeal . Mr. Coleman’s motion for leave to proceed in forma pauperis is denied because he has not advanced a reas oned argument on the law or facts in support of the appeal. DeBardeleben v. Quinlan , 937 F.2d 502, 5054 (10th Cir. 1991). He is reminded that he re mains responsible for paying the full filing fee for this appeal. See 28 U.S.C. § 1915(a), (b).

Entered for the Court

ELISABETH A. SHUMAKER, Clerk