13-3358-cr

United States v. McAuley

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 11th 4 day of April, two thousand fourteen.

5

6 PRESENT: AMALYA L. KEARSE,

7 DENNIS JACOBS,

8 GERARD E. LYNCH,

9 Circuit Judges.

10

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12 UNITED STATES OF AMERICA,

13

14 Appellee,

15

16 -v.- No. 13-3358-cr

17

18 STEVEN MCAULEY,

19

20 Defendant-Appellant.

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22

23 FOR DEFENDANT-APPELLANT: LAURIE S. HERSHEY, Manhasset,

24 NY.

25

26 FOR APPELLEE: CRAIG S. NOLAN (Paul J. Van de

27 Graaf, on the brief) for

28 Tristram J. Coffin, United

29 States Attorney for the District

30 of Vermont, Burlington, VT.

1
1 Appeal from a judgment of the United States District

2 Court for the District of Vermont (Reiss, C.J.).

3

4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

5 AND DECREED that the judgment of the district court be

6 AFFIRMED. 

7

8 Steven McAuley appeals a judgment of conviction

9 (sentencing him chiefly to 63 months’ imprisonment) for

10 possession of a firearm by a felon. We assume the parties’

11 familiarity with the underlying facts, the procedural

12 history, and the issues presented for review.

13

14 McAuley’s only challenge is premised on his lawyer’s

15 failure to move to suppress certain of his post-arrest

16 statements on the ground that they were involuntary. 

17 McAuley told the federal agents that he had stolen the gun

18 he was charged with possessing. On that basis, the district

19 court imposed a two-level Guidelines enhancement. See

20 U.S.S.G. § 2K2.1(b)(4)(A) (Nov. 1, 2012) (“If any firearm .

21 . . was stolen, increase by 2 levels.”). McAuley argues

22 that, because the statements may have resulted from

23 McAuley’s mental illness and drug use, his lawyer’s failure

24 to file a suppression motion constituted ineffective

25 assistance of counsel. 

26

27 “When a criminal defendant on direct appeal asserts

28 trial counsel’s ineffective assistance to the defendant, as

29 the defendant does here, we may (1) decline to hear the

30 claim, permitting the appellant to raise the issue as part

31 of a subsequent 28 U.S.C. § 2255 motion; (2) remand the

32 claim to the district court for necessary fact-finding; or

33 (3) decide the claim on the record before us.” United

34 States v. Doe, 365 F.3d 150, 152 (2d Cir. 2004) (internal

35 quotation marks and brackets omitted). However, this Court

36 has a “baseline aversion to resolving ineffectiveness claims

37 on direct review,” United States v. Salameh, 152 F.3d 88,

38 161 (2d Cir. 1998), and the Supreme Court has explained that

39 “in most cases[,] a motion brought under § 2255 is

40 preferable to direct appeal for deciding claims of

41 ineffective assistance,” Massaro v. United States, 538 U.S.

42 500, 504 (2003); see also id. at 505

43 (“[I]neffective-assistance claims ordinarily will be

44 litigated in the first instance in the district court, the

45 forum best suited to developing the facts necessary to

46 determining the adequacy of representation during an entire

47 trial.”). 

2
1 Resolving ineffectiveness on direct appeal may

2 sometimes be appropriate “when the factual record is fully

3 developed and resolution of the Sixth Amendment claim on

4 direct appeal is ‘beyond any doubt’ or ‘in the interest of

5 justice.’” United States v. Gaskin, 364 F.3d 438, 468 (2d

6 Cir. 2004). The record before us, however, is mostly silent

7 as to the history of McAuley’s mental illness, his lawyer’s

8 understanding of that illness, and McAuley’s demeanor and

9 capacity during the post-arrest interview with federal

10 agents. It would therefore be inappropriate to consider

11 McAuley’s ineffective assistance claim on direct appeal. 

12

13 We have also sometimes remanded ineffective assistance

14 claims to the district court for necessary fact-finding. In

15 Doe, however, we declined to remand a similar claim because

16 “a collateral proceeding under section 2255 provides the

17 defendant with an ample remedy for any ineffectiveness

18 claim.” 365 F.3d at 154. As in Doe, “judicial economy is

19 served by requiring the district court to await the

20 defendant’s collateral section 2255 motion before addressing

21 his ineffectiveness claim. The court will then be able to

22 decide all of the defendant’s collateral claims in one

23 proceeding rather than deciding his ineffectiveness claim

24 now, on remand, and his other collateral claims, should any

arise, later, when considering a section 2255 motion.”1 25 Id.

26 “Because we find that there are no factors here favoring a

27 remand, and because judicial economy is served by requiring

28 the district court to await the defendant’s collateral

29 section 2255 motion,” United States v. Cimino, 381 F.3d 124,

30 130 (2d Cir. 2004), we dismiss McAuley’s ineffective

31 assistance claim without prejudice to his right to pursue it

32 in a motion brought pursuant to 28 U.S.C. § 2255 before the

33 district court. 

34

35

36

1 At issue is a difference in sentencing range between

63-78 months and 51-63 months, so “[e]ven were the defendant

to prevail on his argument, we think the chances remote that

any . . . downward departure affecting the length of his

sentence would be of such magnitude that requiring factual

issues underlying his claims to be determined now on remand

instead of in due course under section 2255 would have an

impact on the overall amount of time the defendant serves on

the present charges against him.” Id.

3
1 The judgment of the district court is hereby affirmed.

2

3 FOR THE COURT:

4 CATHERINE O’HAGAN WOLFE, CLERK

5

6

4