     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,
 4       on the 11th day of April, two thousand fourteen.
 5
 6       PRESENT: AMALYA L. KEARSE,
 7                DENNIS JACOBS,
 8                GERARD E. LYNCH,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       UNITED STATES OF AMERICA,
13
14                    Appellee,
15
16                    -v.-                                              No. 13-3358-cr
17
18       STEVEN MCAULEY,
19
20                Defendant-Appellant.
21       - - - - - - - - - - - - - - - - - - - -X
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
25   arise, later, when considering a section 2255 motion.”1 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




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