                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                 UNITED STATES COURT OF APPEALS April 10, 2007

                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                          Clerk of Court


 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
                                                           No. 06-3301
                                                (D .C. N os. 06-CV -3111-SA C &
 v.
                                                       04-CR-40008-SAC)
                                                             (Kansas)
 DAVID G. PFLUM ,

          Defendant-Appellant.




                                      ORDER *


Before M U R PHY , SE YM OU R, and M cCO NNELL, Circuit Judges.




      David G. Pflum, a federal prisoner proceeding pro se, 1 seeks a Certificate

of Appealability (COA) to appeal the district court’s denial of his motion under

28 U .S.C . § 2255 to vacate or correct his sentence. For the reasons set out below ,

w e decline to grant a C OA .

      M r. Pflum was convicted by a jury on eight counts of failure to pay

quarterly employment taxes, in violation of 26 U.S.C. § 7202, and three counts of


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      1
        We liberally construe Mr. Pflum’s pro se application. See Hall v. Scott, 292
F.3d 1264, 1266 (10th Cir. 2002).
failure to file a federal income tax return, in violation of 26 U.S.C. § 7203. He

was sentenced to 30 months imprisonment. 2 He appealed his conviction, claiming

the district court erred in refusing to give the jury his proposed instruction on

“willfulness,” and in denying a motion to strike the testimony of two IRS agents

regarding the amount of taxes M r. Pflum allegedly owed the government. W e

affirmed. United States v. Pflum, 150 Fed. Appx. 840 (10th Cir. 2005).

Regarding his second claim, we held that because M r. Pflum’s objection to the

IRS agents’ testimony was untimely, he could not assert a claim on appeal that

the testimony was admitted in error.

      M r. Pflum filed the present § 2255 action asserting his counsel was

ineffective for failing to object in a timely fashion to the agents’ testimony and to

the accompanying exhibits. In a thoroughly reasoned opinion, the district court

denied M r. Pflum’s motion, concluding he had failed to show that his counsel’s

untimely objections prejudiced his defense at trial or resulted in an illegal

sentence. Rec., vol. I, doc. 121. The court also denied M r. Pflum’s application

for a certificate of appealability (COA). Id. doc. 127.




      2
         M r. Pflum’s trial took place between the two Supreme Court opinions in
Blakely v. Washington, 542 U.S. 296 (2004), and United States v. Booker, 543
U.S. 220 (2005). The trial court, in an abundance of caution, submitted to the
jury all applicable sentencing factors, including the amount in taxes owed by M r.
Pflum. Accordingly, the sentencing range faced by M r. Pflum was calculated
using facts found by a jury under the reasonable doubt standard. See United
States v. Pflum, 150 Fed. Appx. 840, 841 (10th Cir. 2005).

                                         -2-
      Issuance of a COA is jurisdictional. M iller-El v. Cockrell, 537 U.S. 322,

335-36 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” M iller-El, 537 U.S. at 327.

      In order to establish a successful claim for ineffective assistance of

counsel, M r. Pflum must show that counsel's performance was deficient and that

this deficient performance prejudiced his defense, depriving him of a fair trial

with a reliable result. Strickland v. Washington, 466 U.S. 668, 687 (1984). In

determining M r. Pflum failed to show that his counsel’s performance prejudiced

his defense, the district court found that the testimony and exhibits M r. Pflum

claims his counsel was deficient in failing to challenge pertained to the amount of

taxes M r. Pflum owed the government. After reviewing the trial record, the court

concluded the amount of taxes owed was never a defense M r. Pflum asserted at

trial, and therefore his counsel’s failure to object to the manner in which the

amount was calculated did not interfere with M r. Pflum’s chosen “good faith”

defense. M oreover, the court noted M r. Pflum’s concession on appeal “that the

challenged testimony of [the agents] ‘affected only his sentence,’ not his

convictions.” Rec., vol. I, doc. 121 at 10.

                                          -3-
      M r. Pflum contends on appeal that he was prejudiced by counsel’s failure

to object because “his entire sentence was based on inadmissible evidence of the

28% of the w ages that he did not deduct from his employees’ wages.” A plt. Br.

at 4. The district court concluded M r. Pflum failed to show that, but for his

counsel’s allegedly deficient performance, the result at sentencing would likely

have been different. The court pointed out that the amount of taxes M r. Pflum

owed could have been constitutionally determined by the court instead of the jury

at a sentencing hearing post-Booker. Id. at 11.

      After reviewing the record, we conclude M r. Pflum has not demonstrated

that jurists of reason could debate the district court’s resolution of his ineffective

assistance of counsel claim. M r. Pflum’s assertion that he would have been given

a lesser sentence if his counsel had objected to the IRS agents’ testimony and the

government’s exhibits is speculative at best and fails to meet the requirements of

the second Strickland prong for a showing of prejudice.

      Accordingly, for substantially the same reasons given by the district court,

we D EN Y M r. Pflum’s application for a COA and DISM ISS his appeal.


                                        ENTERED FOR TH E CO UR T,


                                        Stephanie K. Seymour
                                        Circuit Judge




                                          -4-
