United States v. Moore, 694 F. App'x 663

Jonathan Moore pled guilty to one count of conspiracy to defraud the United States and commit bank fraud (18 U.S.C. § 371) based on a scheme at Arrow Trucking Company to underreport payroll taxes and submit false invoices to Transportation Alliance Bank (TAB).
In his plea agreement Moore admitted participation in the conspiracy from January 1 through December 11, 2009, and stipulated to the total monetary loss; he was sentenced to 35 months and joint-and-several restitution of $21,026,682.03.
Moore did not file a direct appeal; in October 2016 he filed a 28 U.S.C. § 2255 motion asserting ineffective assistance of counsel and sought to challenge plea-related matters including the duration of his participation and restitution calculations.
The district court denied § 2255 relief and declined to grant a certificate of appealability (COA); Moore sought a COA from the Tenth Circuit.
The Tenth Circuit reviewed whether reasonable jurists could debate the denial under Slack v. McDaniel and applied Strickland standards for ineffective assistance, including the extension of counsel rights to plea bargaining (Missouri v. Frye).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for failing to advise Moore he could not be guilty after June 2009 due to demotion	Moore: demotion removed payroll/tax authority so he withdrew and could not be guilty after June 2009	Government: Moore admitted involvement through December 2009 and testified to overt acts after demotion, showing no withdrawal	Denied — Moore’s admissions and overt acts show no withdrawal; counsel not ineffective
Whether counsel was ineffective for failing to challenge the government’s loss/restitution calculations	Moore: counsel should have contested the loss amount and restitution	Government: Moore stipulated to loss and restitution in plea agreement; court may rely on stipulations	Denied — stipulation bars challenge; counsel not ineffective
Whether counsel was ineffective for not obtaining reduction of restitution to TAB because of a civil settlement	Moore: civil settlement should reduce TAB restitution obligation	Government: counsel did raise the settlement as a basis for downward variance; court rejected it	Denied — counsel raised it; court discretion to reject variance
Whether a COA should issue to appeal denial of § 2255 relief	Moore: reasonable jurists could debate resolution of his claims	Government: Strickland and record show no debatable error	Denied — no substantial showing of the denial being debatable under Slack

Strickland v. Washington, 466 U.S. 668 (establishes test for ineffective assistance of counsel)
Slack v. McDaniel, 529 U.S. 473 (standard for granting a certificate of appealability)
Missouri v. Frye, 566 U.S. 134 (right to counsel extends to plea-bargaining process)
United States v. Randall, 661 F.3d 1291 (10th Cir.) (to withdraw from a conspiracy defendant must take affirmative action)
United States v. Spann, 515 F.2d 579 (10th Cir.) (courts may rely on parties’ stipulations when calculating loss/restitution)