UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

STEVEN FISHMAN, 

 Defendant - Appellant. 

No. 17-5039 

(D.C. Nos. 4:12-CV-00607-CVE-TLW & 

4:07-CR-0195-CVE-4) 

(N.D. Okla.) 

_________________________________ 

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 This order is not binding precedent except under the doctrines of law of the case, 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. 

FILED 

United States Court of Appeals 

Tenth Circuit 

July 3, 2017

Elisabeth A. Shumaker 

Clerk of Court
2 

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 
3 

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.” 
4 

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.” 
5 

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. 
6 

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