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-C V-00607-CVE-TLW & 4:07-CR-0195-CVE-4) (N.D. Okla.)

________________ _________________ ORDER DENYING CERTIFIC ATE OF APPEALABILITY *

________________ _________________ Before KELLY , BRISCOE , and LUCERO , Circuit Judges.

________________ _________________ Steven Fishman, a federal prisoner appear ing 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 f iled under Fed. R. Civ. P. 60(b)(1) and (6). The district court determined the motion wa s 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

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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 Court2 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). I. BACKGROUND Mr. Fishman was convicted by a jury of co nspiracy to commit mail and wire fraud and conspiracy to commit mone y laundering, for which he wa s sentenced to 262 months’ imprisonment. See United States v. Fishman , 645 F.3d 1175, 1180 (10th Cir. 2011) (affirming conviction and senten ce). In 2012, he filed a § 2255 motion that included a sentencing challenge regarding th e 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 convicti on to raise Mr. Fishman’s criminal history from Category II to Category III, increasing hi s sentencing guideline range from 235-293 months to 262-327 months; and (2) his counsel had rende red 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 conv iction (for mail fraud) also counted in his criminal history, he co ntended that use of th e obstruction conviction amounted to double counting precluded by Un ited States Sentencing Guideline Manual (USSG) § 4A1.2(a)(2). Th at section provides: If the defendant has multiple prior sentences, determin e whether those sentences are counted separately or treated as a single sentence [for purposes of calculating criminal hist ory points under USSG § 4A1.1]. Prior sentences always are counted separately if the sentences were imposed for offenses that were se parated 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 a rrest, prior sentences are counted3 separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were im posed on the same day . Treat any prior sentence covere d by (A) or (B) as a single sentence (Emphasis added). The district court rejected this claim because, ac cording to undisputed facts recounted in the presentence investig ation report (PSR), there was an intervening arrest between the two offens es: Mr. Fishman committed the obstruction offense after his arrest on the mail-fraud charge (indeed, the obs truction 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 appe al, in which he rais ed 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. Fish man’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, M r. Thornburgh was assessed separate criminal history points for two convictions on which se ntence 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 subs tantially 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) requ ires a second arrest for the subsequent offense (here the obstruction charge). But the pl ain terms of that provision— and common sense—make it clear a ll that is required is that th e “defendant [be] arrested for the first offense prior to co mmitting 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 doub le-counting claim (which he insisted was indistinguishable from Thornburgh’s) had been va lid, that the district court mistakenly denied the claim in his prior § 2255 proceedin g, 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 authoriz ation 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, co rrect 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 re jected 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 mo tion “in substance or effect asserts or reasserts a federal basis for relief from [h is] underlying conviction [or sentence].” Spitznas v. Boone , 464 F.3d 1213, 1215 (10th Ci r. 2006) (explaini ng and applying

2 Section 3553(a)(6) specifies as one of th e 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 § 22 55 proceeding “by challenging the [district] court’s previous ruling on th e merits of that claim.” 4 Id. at 1216; see also Gonzalez , 545 U.S. at 532. And the associated ob jection 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 exerci sed its discretion to dismiss rather than transfer Mr. Fishman’s mo tion to this court for possible authorization under § 2255(h). Nothing in the motion sugg ests he could meet the requirements for authorization. His sentencing challenge, in c ontrast to a challenge to conviction, cannot satisfy the requirement in § 2255(h)(1) that the prisoner present ne w evidence to show “that no reasonable factfinde r would have found him guilty of the [underlying] offense .” (Emphasis added). Nor does his challenge re ly 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 de nial of his claim on the merits; he did not challenge “a procedural ruling . . . which pr ecluded 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 adva nces additional complaints regarding the disparity between his sentence and that u ltimately 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 dist rict 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 revi ew by the Supreme Court,” as required to satisfy § 2255(h)(2). Moreove r, 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