13-3358-cr United States v. McAuley



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

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**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
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**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 .**  **At a stated term of the United States Court of Appeals** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 11 th** **day of April, two thousand fourteen.** 4 5 **PRESENT: AMALYA L. KEARSE,** 6 **DENNIS JACOBS,** 7 **GERARD E. LYNCH,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **UNITED STATES OF AMERICA,** 12 13 **Appellee ,**  14 15 **-v.- No. 13-3358-cr** 16 17 **STEVEN M C** **AULEY,** 18 19 **Defendant-Appellant**

**.** 20 - - - - - - - - - - - - - - - - - - - -X 21 22 **FOR DEFENDANT-APPELLANT:** LAURIE S. HERSHEY, Manhasset, 23 NY. 24 25 **FOR APPELLEE:** CRAIG S. NOLAN (Paul J. Van de 26 Graaf, on the brief ) for 27 Tristram J. Coffin, United 28 States Attorney for the District 29 of Vermont, Burlington, VT. 30

1Appeal from a judgment of the United States District 1 Court for the District of Vermont (Reiss, C.J. ). 2 3 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,** 4 **AND DECREED**that the judgment of the district court be 5
**AFFIRMED**

. 6 7 Steven McAuley appeals a judgment of conviction 8 (sentencing him chiefly to 63 months’ imprisonment) for 9 possession of a firearm by a felon. We assume the parties’ 10 familiarity with the underlying facts, the procedural 11 history, and the issues presented for review. 12 13 McAuley’s only challenge is premised on his lawyer’s 14 failure to move to suppress certain of his post-arrest 15 statements on the ground that they were involuntary. 16 McAuley told the federal agents that he had stolen the gun 17 he was charged with possessing. On that basis, the district 18 court imposed a two-level Guidelines enhancement. See 19 U.S.S.G. § 2K2.1(b)(4)(A) (Nov. 1, 2012) (“If any firearm . 20 . . was stolen, increase by 2 levels.”). McAuley argues 21 that, because the statements may have resulted from 22 McAuley’s mental illness and drug use, his lawyer’s failure 23 to file a suppression motion constituted ineffective 24 assistance of counsel. 25 26 “When a criminal defendant on direct appeal asserts 27 trial counsel’s ineffective assistance to the defendant, as 28 the defendant does here, we may (1) decline to hear the 29 claim, permitting the appellant to raise the issue as part 30 of a subsequent 28 U.S.C. § 2255 motion; (2) remand the 31 claim to the district court for necessary fact-finding; or 32 (3) decide the claim on the record before us.” United 33 States v. Doe , 365 F.3d 150, 152 (2d Cir. 2004) (internal 34 quotation marks and brackets omitted). However, this Court 35 has a “baseline aversion to resolving ineffectiveness claims 36 on direct review,” United States v. Salameh , 152 F.3d 88, 37 161 (2d Cir. 1998), and the Supreme Court has explained that 38 “in most cases[,] a motion brought under § 2255 is 39 preferable to direct appeal for deciding claims of 40 ineffective assistance,” Massaro v. United States , 538 U.S. 41 500, 504 (2003); see also id. at 505 42 (“[I]neffective-assistance claims ordinarily will be 43 litigated in the first instance in the district court, the 44 forum best suited to developing the facts necessary to 45 determining the adequacy of representation during an entire 46 trial.”). 47

2Resolving ineffectiveness on direct appeal may 1 sometimes be appropriate “when the factual record is fully 2 developed and resolution of the Sixth Amendment claim on 3 direct appeal is ‘beyond any doubt’ or ‘in the interest of 4 justice.’” United States v. Gaskin , 364 F.3d 438, 468 (2d 5 Cir. 2004). The record before us, however, is mostly silent 6 as to the history of McAuley’s mental illness, his lawyer’s 7 understanding of that illness, and McAuley’s demeanor and 8 capacity during the post-arrest interview with federal 9 agents. It would therefore be inappropriate to consider 10 McAuley’s ineffective assistance claim on direct appeal. 11 12 We have also sometimes remanded ineffective assistance 13 claims to the district court for necessary fact-finding. In 14 Doe , however, we declined to remand a similar claim because 15 “a collateral proceeding under section 2255 provides the 16 defendant with an ample remedy for any ineffectiveness 17 claim.” 365 F.3d at 154. As in Doe , “judicial economy is 18 served by requiring the district court to await the 19 defendant’s collateral section 2255 motion before addressing 20 his ineffectiveness claim. The court will then be able to 21 decide all of the defendant’s collateral claims in one 22 proceeding rather than deciding his ineffectiveness claim 23 now, on remand, and his other collateral claims, should any 24 arise, later, when considering a section 2255 motion.” 1 Id. 25 “Because we find that there are no factors here favoring a 26 remand, and because judicial economy is served by requiring 27 the district court to await the defendant’s collateral 28 section 2255 motion,” United States v. Cimino , 381 F.3d 124, 29 130 (2d Cir. 2004), we dismiss McAuley’s ineffective 30 assistance claim without prejudice to his right to pursue it 31 in a motion brought pursuant to 28 U.S.C. § 2255 before the 32 district court. 33 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.

3The judgment of the district court is hereby affirmed. 1 2 FOR THE COURT: 3 CATHERINE O’HAGAN WOLFE, CLERK 4 5 6

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