                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       October 17, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

v.                                                        No. 13-4150
                                                 (D.C. Nos. 2:12-CV-00444-TS &
KEVIN THOMAS BROGAN,                                  2:10-CR-00284-TS-1)
                                                            (D. Utah)
             Defendant-Appellant.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      Fraud is no stranger to Kevin Thomas Brogan; this bank-fraud case marks his

third fraud conviction. He seeks leave to appeal from the denial of his 28 U.S.C.

§ 2255 motion for relief from the sentence imposed. We deny his request for a

certificate of appealability (COA) and dismiss this appeal.1


*
       This order is not binding precedent except under the doctrines of law of the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.
1
       Although it appears Brogan was released from prison in February 2014 after
completing his term of imprisonment, his request for a COA is not moot because he
must still serve 60 months on supervised release. See United States v. Smith,
991 F.2d 1468, 1470 (9th Cir. 1993) (holding appeal not moot because the defendant
would “be entitled to an earlier end to his term of supervised release” if he prevailed
on his argument that he should have received a shorter term of imprisonment).
                                    BACKGROUND

       From November 2007 to April 2009, Brogan worked as a consultant for a

financial firm, providing general accounting services to one of the firm’s clients.

Using information and materials obtained through his employment, Brogan

“falsif[ied] checks [made] payable to himself and then creat[ed] invoices and images

of checks that would create the appearance that the money was paid to legitimate

businesses.” Aplt. Opening Br. & Request for COA at 1-2. Specifically,

       he would enter an invoice and then do a manual input for a check to pay
       for the invoice. Brogan would then create a counterfeit check that was
       made payable to either Bank of America or Chase Card Services. . . .
       [Next], he would put the manual check and invoice back in the vendor
       file in case the payment was audited. . . . [T]he Bank of America and
       Chase accounts belonged to him. . . . [O]ne of the fraudulent checks he
       created was in his own name.

R., Vol. I at 92.

       Brogan’s scheme was discovered in April 2009,2 and he was indicted on

twelve charges of bank and mail fraud. Ultimately, he pled guilty to two counts of

bank fraud.

       The presentence report calculated an offense level of 18 after adding 14 levels

because Brogan’s intended loss exceeded $400,000 but was less than $1,000,000.

Given his criminal history, the resulting guidelines range was 33 to 41 months. At

the sentencing hearing, his counsel raised no objection to the calculated guidelines
2
      This was not Brogan’s first criminal scheme targeting an employer. In fact,
from 1996 through 1998, he defrauded two other employers. He was convicted of
bank fraud in both of those cases and sentenced to prison.


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range. The judge imposed a sentence in the middle of the guidelines range: 37

months.

      Nearly a year after his sentencing, Brogan filed a pro se § 2255 motion in the

district court, claiming he received ineffective assistance of counsel at sentencing,

specifically “he advised his defense attorney that a fraudulent check was never

generated or deposited on one of the invoices in question” and “counsel was in

possession of documetation [sic] that confirmed Brogan’s assertion.” R., Vol. I

at 24-25.

      The only check found for that particular invoice was number 30878, dated

December 31, 2008, and made payable to “Foreland Refining Corporation” in the

amount of $24,615.84. Had check 30878 not been included in the intended loss

amount, Brogan would have faced a 27-33 months guidelines range, instead of the

33-41 months range used in imposing his sentence.

      After an evidentiary hearing, the judge denied § 2255 relief. Generally, he

did not consider Brogan credible and went farther in concluding Brogan’s counsel

would have properly investigated the matter had check 30878 been brought to

counsel’s attention. Brogan unsuccessfully sought relief from that decision under

Fed. R. Civ. P. 60(b)3 and then appealed to this court for relief.




3
      The judge construed Brogan’s Rule 60(b) motion as a second or successive
2255 motion, declined to transfer it to this court, and dismissed it. That decision may
have been improper, but “because the controlling constitutional claim that trial
                                                                             (continued)
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                                      DISCUSSION

                               I. Standards of Review

      “A federal prisoner may not appeal from the denial of a § 2255 petition

without first obtaining a COA.” United States v. Bedford, 628 F.3d 1232, 1234

(10th Cir. 2010). Brogan satisfies his burden by “showing that reasonable jurists

could debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). Furthermore, “[k]eeping in mind the standard of

review governing a request for a [COA], . . . the district court’s legal rulings on a

§ 2255 motion [are reviewed] de novo and its findings of fact for clear error.” United

States v. Kennedy, 225 F.3d 1187, 1193 (10th Cir. 2000) (internal quotation marks

omitted).

                        II. Ineffective Assistance of Counsel

      To prevail on an ineffective-assistance-of-counsel claim, Brogan “must show

. . . counsel’s representation fell below an objective standard of reasonableness” and

“prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 688 (1984).

Our review under Strickland’s first prong is highly deferential, and requires counsel’s

performance to “have been completely unreasonable, not merely wrong.” Byrd v.


counsel was ineffective is now properly before this court,” Brogan has chosen not to
press the issue. Aplt. Opening Br. & Request for COA at 10 n.3.


                                          -4-
Workman, 645 F.3d 1159, 1168 (10th Cir. 2011) (internal quotation marks omitted).

If counsel was deficient in not objecting to the inclusion of check/invoice 30878,

there is prejudice, “[a]s there is an increase in the actual amount of jail time that may

be served using the improperly-applied guideline range.” United States v. Horey,

333 F.3d 1185, 1188 (10th Cir. 2003).

      At this stage the issue presented is quite narrow. Brogan argues evidence was

available to counsel that “should have caused [him] to know . . . Check 30878 and its

accompanying invoice were not part of the intended loss.” Aplt. Opening Br. &

Request for COA at 14.4 He points out the check was voided roughly two months

before the discovery of his scheme and no corresponding check made payable to him

or his accounts was found. Thus, he concludes, “the check was ‘voided’ in the

ordinary course of business rather than ‘stopped’ in an effort to retract a discovered

fraud.” Id. at 15.5 That’s a stretch.


4
        Brogan does not challenge the district judge’s decision finding him not
credible and determining his counsel would have investigated the inclusion of check
30878 if the problem has been brought to counsel’s attention. Any disputes with
these aspects of the judge’s decision are waived. See United States v. Wayne,
591 F.3d 1326, 1334 n.6 (10th Cir. 2010) (holding argument waived for failure to
raise it in opening brief). His argument here is that even without prompting counsel
was ineffective in failing to object to the check being included in the intended loss
computations.
5
        Although the district judge failed to address this theory, we may do so in the
first instance. See United States v. Alvarez, 137 F.3d 1249, 1251 (10th Cir. 1998)
(“[W]e are free to affirm a district court decision on any grounds for which there is a
record sufficient to permit conclusions of law, even grounds not relied upon by the
district court.” (internal quotation marks omitted)); see Davis v. Roberts, 425 F.3d
830, 834 (10th Cir. 2005) (stating that “[n]o reason suggests itself why [the principle
                                                                             (continued)
                                           -5-
      We start with the presumption of counsel’s competence and look to the

defendant to supply evidence to the contrary. Byrd v. Workman, 645 F.3d 1159, 1168

(10th Cir. 2011). The evidence available to Brogan’s counsel suggests check/invoice

30878 was actually part of Brogan’s scheme. In particular, Dalbo—the victim of

Brogan’s scheme—listed check 30878 in a table with four other checks as,

“Fraudulent Checks That Didn’t Clear The Banks.” R., Vol. I at 241 (emphasis

added). Although the payee is listed as “???,” another check in that category,

uncontested by Brogan, likewise designates no payee. Id. Moreover, a report

prepared by Dalbo’s investigators recounted a May 2009 meeting with Brogan, and

stated the parties “generally agree[d]” on the fraudulent checks, with the exception of

two checks, neither of which was number 30878. Id. at 99. Additionally, a report

from the Postal Inspection Service indicated the actual and intended losses from

Brogan’s scheme were $404,388, which included the $24,615.84 from check 30878.

      Counsel is expected to test problematic aspects of the government’s case, but

cannot be expected to run to ground every factual anomaly, particularly one

retrieved, post hoc, from the bowels of the record. By no means do we suggest that

counsel need not consider, discuss, and possibly investigate matters of concern to a



of affirming on any ground] should be rejected in considering an application for a
COA”); see, e.g., United States v. Miles, 546 F. App’x 730, 734-35 (10th Cir. 2012)
(denying COA on a component of defendant’s ineffective-assistance claim not
addressed by the district court); Szuchon v. Lehman, 273 F.3d 299, 318 & n.8 (3d Cir.
2001) (denying COA on an access-to-competent-psychiatrist claim on a ground not
addressed by the district court).

                                         -6-
client. But that is a different case. After an evidentiary hearing the district judge

concluded: 1) Brogan did not call the anomaly now relied upon to the attention of

counsel; and 2) had he done so counsel would have investigated. That conclusion is

not contested. We are then left only with the argument that counsel should have

somehow divined a problem not reasonably suggested by the record. We cannot say

counsel acted unreasonably in not contesting check 30878’s inclusion as an intended

loss. The propriety of the decision denying § 2255 relief is not reasonably debatable.

                                     CONCLUSION

      We deny a COA and dismiss this appeal.


                                                Entered for the Court




                                                ELISABETH A. SHUMAKER, Clerk




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