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

                              FOR THE TENTH CIRCUIT                         August 7, 2017
                          _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 17-5043
                                               (D.C. Nos. 4:16-CV-00655-GKF-PJC and
JONATHAN LELAND MOORE,                                 4:14-CR-00187-GKF-1)
                                                             (N.D. Okla.)
      Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before LUCERO, BALDOCK, and MORITZ, Circuit Judges.
                  _________________________________

      Jonathan Moore, proceeding pro se, seeks a certificate of appealability

(“COA”) to challenge the denial of his 28 U.S.C. § 2255 petition. We deny a COA

and dismiss the appeal.

                                           I

      Moore pled guilty to one count of conspiracy to defraud the United States and

to commit bank fraud in violation of 18 U.S.C. § 371. The charge stemmed from a

conspiracy between Moore and other employees of Arrow Trucking Company to

underreport payroll taxes and to submit false invoices to Transportation Alliance

Bank (“TAB”). In his plea agreement, Moore admitted to being involved in the

      *
         This order is not binding precedent, except under the doctrines of law of the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.
conspiracy from January 1 through December 11, 2009, and he stipulated to the total

monetary losses suffered. He was sentenced to 35 months’ imprisonment and

ordered jointly and severally liable for restitution totaling $21,026.682.03. No direct

appeal was filed. In October 2016, Moore filed a § 2255 motion, claiming ineffective

assistance of counsel. The district court denied relief on the merits and declined to

grant a COA. Moore now seeks a COA from this court.

                                           II

      To appeal the district court’s denial of § 2255 relief, Moore must obtain a

COA. § 2253(c)(1)(B). We will grant a COA only if “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)

(quotation omitted). To succeed on an ineffective assistance claim, a prisoner must

establish “that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). The right to counsel extends to the plea-bargaining process. Missouri v.

Frye, 566 U.S. 134, 140 (2012).

      Moore argues that his counsel was ineffective for failing to advise him during

plea negotiations that he could not be guilty of the conspiracy offense after June

2009, because he had been demoted from Chief Financial Officer and was no longer

responsible for payroll or taxes. However, Moore repeatedly admitted his

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involvement in the conspiracy through December 2009, and he testified to several

overt acts that he took in furtherance of the conspiracy after his demotion. Because

Moore’s own admissions indicate he did not withdraw from the conspiracy after the

demotion, see United States v. Randall, 661 F.3d 1291, 1294 (10th Cir. 2011)

(defendant “must take affirmative action” to withdraw from conspiracy), defense

counsel did not render ineffective assistance by failing to advise him otherwise.

      Additionally, Moore claims that counsel was ineffective for failing to

challenge the government’s proof of loss and restitution calculations. But Moore

stipulated to the loss amount in his plea agreement, and he agreed to pay restitution

in the full amount of the victims’ losses. Thus, the district court was entitled to rely

on those stipulations in calculating restitution, and counsel could not have been

ineffective in failing to object to those calculations. See United States v. Spann, 515

F.2d 579, 580-83 (10th Cir. 1975) (stating jury may rely on testimony admitted into

evidence by parties’ stipulation in reaching decision). Relatedly, Moore asserts

ineffective assistance based on counsel’s failure to argue for a reduced restitution

obligation to TAB in light of a civil settlement. But defense counsel did raise the

civil settlement as a basis for a downward variance, which the court rejected.




                                            3
                               III

For the foregoing reasons, we DENY a COA and DISMISS the appeal.


                                Entered for the Court


                                Carlos F. Lucero
                                Circuit Judge




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