* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se eFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered sub mitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. JORGE ALBERTO FIGUEREDO, aka George Figueredo, Defendant - Appellant. No. 97-1262 (D.C. No. 96-M-1670) (D. Colo.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL , and KELLY , Circuit Judges. ** Mr. Figueredo, appearing pro se, seeks to appeal fr om the denial of a second or successive motion under 28 U.S.C. § 2255 to vacate, correct or set aside his sentence. He contends that Amendment 518 to the Sentencing Guidelines, modifying application note 12 of the co mmentary to USSG § 2D1.1, should be given retroactive effect, see United States v. Felix , 87 F.3d 1057, 1060- 2 -

(9th Cir. 1996) (direct appeal after resentencing), and his sentence thereby reduced pursuant to 18 U.S.C. § 3582(c)(2). Amendm ent 518 is not listed in USSG § 1B1.10(c) as retroactive and it does not ent itle Mr. Figueredo to resentencing in a successive collateral proceeding involving his May 1992 sentence. SeeUnited States v. Drath , 89 F.3d 216, 217 (5th Cir. 1996); see also United States v. Ynfante , 78 F.3d 677, 682 n.4 (D.C. Cir. 1996). We need n ot resolve the appeal on this ground because a second or successive § 2255 motion is not permitted to be filed in the district court abs ent authorization from the court of appeals. See28 U.S.C. §§ 2244(b)(3)(A); 2255; Felker v. Turpin , 116 S. Ct. 2333, 2340 (1996). Although Mr. Figueredo filed tw o motions directly or indirectly seeking successive § 2255 relief, the di strict court lacked jurisdiction to entertain them, and we therefore vacate its orders filed on May 28, 1997 and June 25, 1997, resolving those motions. Rather than rem and to the district court with instructions to transfer the motions to the court o f appeals for proper authorization to file, see Coleman v. United States , 106 F.3d 339, 341 (10th Cir. 1997), we construe Mr. Figueredo’s appeal as an app lication for leave to file a second or successive § 2255 motion in the district court, and deny it, see Pease v. Klinger , 115 F.3d 763, 764 (10th Cir. 1997).- 3 - Background Mr. Figueredo was convicted of conspiracy to distri bute five kilograms or more of cocaine, 21 U.S.C. §§ 846, 841(a)(1), 841(b )(1)(A) and sentenced to 145 months imprisonment. That conviction was affirmed on direct appeal. See United States v. Figueredo , No. 92-1142, (10th Cir. Oct. 15, 1993) (unpub. or der and judgment). He subsequently filed a § 2255 moti on on July 12, 1996, based on the sole ground of ineffective assistance of counse l. The district court denied the motion. SeeD. Ct. Judgment filed Sept. 10, 1996. On April 28 , 1997, Mr. Figueredo filed a motion to correct sentence, see Fed. R. Crim. P. 35, that the district court denied. See D. Ct. Order filed May 9, 1997. On May 21, 1997, Mr. Figueredo sought reconsideration of that order rely ing in part on § 2255. The district court viewed this as a second motion under§ 2255 and denied relief. See D. Ct. Order filed May 28, 1997. Mr. Figueredo the n sought relief under Fed. R. Civ. P. 60(b). See Motion filed June 23, 1997. The district court de nied relief. SeeD. Ct. Order filed June 25, 1997. In response to Mr. Figueredo’s notice of appeal and request for a certificate of appealabili ty filed July 11, 1997, the district court denied the certificate. See D. Ct. Order filed July 15, 1997.- 4 - Discussion Amendment 518 to the Sentencing Guidelines was effe ctive November 1, 1995, and plainly could have been raised in Mr. Fig ueredo’s first § 2255 motion filed in July 1996. See In re Sims , 111 F.3d 45, 47-48 (6th Cir. 1997) (movant not entitled to file a second § 2255 motion where c hange in Sentencing Guideline occurred prior to denial of first § 2255 petition). Mr. Figueredo has not demonstrated that his two motions before the distri ct court rest upon (1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establi sh by clear and convincing evidence that no reasonable factfinder w ould have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroact ive to cases on collateral review by the Supreme Court, that was previously un available. 28 U.S.C. § 2255; see28 U.S.C. § 2243(b)(3)(B) (required certification by threejudge panel of the court of appeals). The amendment of an application note to the Sentencing Guidelines simply does not implicate a n ew rule of constitutional law. Mr. Figueredo’s appeal (including his motion for a certificate of appealability) is construed as an application to fi le successive § 2255 motions and is DENIED. The district court’s orders of May 28, 1997 and June 23, 1997 denying relief are VACATED, and we REMAND to the di strict court with instructions to DISMISS Mr. Figueredo’s May 21, 199 7 and June 23, 1997 § 2255 motions.- 5 -

IT IS SO ORDERED.

Entered for the Court Paul J. Kelly, Jr. Circuit Judge