McCauley v. USA

Filing 13

ORDER. Eric Scott McCauley's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, Doc. 1 , is denied. Signed on 4/21/15 by District Judge Nanette K. Laughrey. (Order mailed to Movant.) (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
ERIC SCOTT MCCAULEY,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 2:14-cv-04282-NKL

ORDER
Before the Court is Eric Scott McCauley’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence, [Doc. 1]. For the reasons set forth below, the Motion is denied.
I.

Background1
On April 3, 2009, a federal grand jury in the Western District of Missouri returned a fifth

superseding indictment in Case No. 07-cr-04009-01-NKL, charging McCauley and two codefendants with a variety of narcotics and money laundering offenses. McCauley was charged
with conspiracy to distribute and possess with intent to distribute 1,000 kilograms of marijuana,
in violation of 21 U.S.C. § 846 (Count One); possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a)(1) (Counts Two and Twenty-Nine); monetary transaction in
criminally derived property, in violation of 18 U.S.C. § 1957 (Counts Three through Five);
money laundering, in violation of 18 U.S.C. § 1956(a) (Counts Seven through Twenty-Seven);
conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956(h) (Count Twenty-

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The following facts are taken almost verbatim from the United States’ brief. In his reply in support of his § 2255
Motion, McCauley did not specifically dispute these background statements, and the Court finds them to be
consistent with the record.

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Eight); and distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1) (Count Thirty).
[Crim. Doc. 130].2
On October 30, 2009, J.R. Hobbs was appointed to represent McCauley. [Crim Doc.
183]. Both of McCauley’s co-defendants pleaded guilty, and on March 14, 2011, McCauley
alone proceeded to trial. After two days of testimony and evidence, the case was submitted to the
jury on March 16, 2011. McCauley was found guilty on all counts, with the exception of Count
One, for which he was found guilty of a lesser-included charge of conspiracy to distribute over
100 kilograms of marijuana rather than the more than 1,000 kilograms of marijuana charged.
[Crim. Doc. 277].
McCauley’s presentence investigation report (PSR) was completed by the United States
Probation Office. The PSR calculated a total offense level of 43 with a criminal history category
of III, which resulted in a Guidelines range of life imprisonment, or the statutory maximum of
570 years. [Crim. Doc. 316, ¶¶ 119-20]. Through his attorney, McCauley objected to the base
offense level of 34, to an enhancement under § 3B1.1(a) for his leadership role in the offense, to
the PSR’s failure to recommend a reduction for acceptance of responsibility, and to the criminal
history category. [Crim. Doc. 316].
At sentencing on January 19, 2012, the Court overruled McCauley’s objections except as
to the drug quantities attributable to him. The Court found a base offense level of 32 (two levels
below the 34 recommended by the PSR) based on a finding by a preponderance of the evidence
that McCauley was responsible for more than 1,000 kilograms but less than 3,000 kilograms of
marijuana. The total offense level was a 41 with a criminal history category of III, which placed
McCauley’s Guidelines range at 360 months to life imprisonment. After hearing argument by

2

“Crim. Doc.” refers to the docket from the underlying criminal proceedings against McCauley, Case No. 2:07-cr04009-01-NKL. “Doc.” refers to the docket from this civil case, Case No. 2:14-cv-04282-NKL.

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both sides, the Court sentenced McCauley to a total of 276 months’ imprisonment, comprised of
276 months on each of Counts One and Two, 120 months on each of Counts Three, Four and
Five, 240 months on each of Counts Seven through Twenty-Eight, and 60 months on Counts
Twenty-Nine and Thirty, all to run concurrently. The court imposed an additional 60-month
sentence on Count Thirty, to run consecutively to Count Thirty only, for a total of 120 months on
that count. [Crim. Doc. 332]; see also [Crim. Doc. 336] and [Crim. Doc. 347].
The Court’s written judgment was imposed on January 19, 2012, and was entered on
January 24, 2012. [Crim. Doc. 332]. After the Eighth Circuit upheld McCauley’s judgment and
sentence, McCauley filed this Motion pursuant to 28 U.S.C. § 2255, alleging three grounds of
ineffective assistance of counsel and two grounds based on violations of the Fifth and Sixth
Amendments to the United States Constitution. The Government concedes that the Motion was
timely filed.
II.

Discussion
A. Evidentiary Hearing
McCauley requests an evidentiary hearing “to determine whether the arguments advanced

[by him] warrant relief.” [Doc. 1, p. 7]. An evidentiary hearing on a 28 U.S.C. § 2255 motion is
necessary unless the motion, files, and records of the case conclusively show that the movant is
not entitled to relief. Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008). A claim
under § 2255 may be summarily dismissed without an evidentiary hearing if it is insufficient on
its face or the record affirmatively refutes the factual allegations contained in the motion. Id.
Accordingly, an evidentiary hearing is not required if the allegations in the motion “are
contradicted by the record, inherently incredible, or conclusions rather than statements of fact.”
Engelen v. United States, 68 F.3d 238, 240-41 (8th Cir. 1995). The Court has reviewed the

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motion, files, and record and concludes that all of McCauley’s claims can be fully and fairly
evaluated without an evidentiary hearing.
B. Ineffective Assistance of Counsel
Grounds One, Three, and Four of McCauley’s Motion argue that his attorney, Mr. Hobbs,
failed to provide effective assistance of counsel when he (1) failed to make a full inquiry into the
prejudicial impact of a prospective juror’s comments about his personal knowledge of the case,
(2) failed to object to an improper grouping of the counts and to the misapplication of drugrelated enhancements to money laundering guidelines, and (3) failed to object to an enhancement
of his sentence pursuant to 18 U.S.C. § 3147.
To succeed on a claim of ineffective assistance, a movant must prove both: (1) that
defense counsel’s representation was deficient; and (2) that the deficient performance prejudiced
the movant’s case. Strickland v. Washington, 466 U.S. 668, 687 (1984); U.S. v. Apfel, 97 F.3d
1074, 1076 (8th Cir. 1996). Failure to prove “either deficient performance or sufficient prejudice
defeats the ineffectiveness claim.” Strickland, 466 U.S. at 700. To establish deficient
performance, the movant must show that “the lawyer’s performance was outside the range of
professionally competent assistance.” Cox v. Norris, 133 F.3d 565, 573 (8th Cir. 1997). On this
issue, “[j]udicial scrutiny of counsel’s performance must be highly deferential” and the Court
“must indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689. To establish prejudice, the
movant “must show that, but for counsel’s deficient performance, there is a reasonable
probability that the result of the proceeding would have been different.” Cox, 133 F.3d at 573.
1.

Failure to Inquire Into Impact of Prospective Juror’s Comments

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During jury selection, a member of the venire, Mr. McCollum, reported to the Court
(outside of the presence of other jurors) that he was acquainted with the people who lived in
McCauley’s neighborhood and that those acquaintances had spoken with Mr. McCollum about
police activity at McCauley’s residence. Later, another prospective juror, Ms. Boone, reported to
the Court that during a lunch break, Mr. McCollum shared this information with her and two
other prospective jurors, Ms. Robb and Ms. Otte. Ms. Otte was ultimately selected as a juror.
McCauley argues that Mr. Hobbs only engaged in “the most minimal questioning of . . .
Otte.” [Doc. 1, p. 4]. However, the transcript reveals that the Court and Mr. Hobbs repeatedly
asked Ms. Otte about whether the information about police activity at McCauley’s house would
affect her ability to remain impartial, and Ms. Otte repeatedly denied bias:
THE COURT: I appreciate you bringing it to our
attention. I guess one of the questions I need to ask -PROSPECTIVE JUROR OTTE: No, ma’am, it would
not make any difference whatsoever.
THE COURT: All right. You realize that sometimes
people -- yeah, exactly. They want to talk like they really know
something or they’ve got some inside perspective, but they’re just
big talkers, and it has nothing to do with it.
PROSPECTIVE JUROR OTTE: Right. See it every day.
...
MR. HOBBS: Yes, Judge. Miss Otte, first, thank you very
much for your disclosure. Do you think by getting that information
that somehow you’ve already started to form impressions about the
case?
PROSPECTIVE JUROR OTTE: No.
MR. HOBBS: Was it the type of information that you
accepted as true?
PROSPECTIVE JUROR OTTE: No.
MR. HOBBS: And, again, I’m not asking you to tell us
anything other than your candid thoughts about it.
PROSPECTIVE JUROR OTTE: I know.
MR. HOBBS: But this is our time to ask you. Do you
think that because an offhand comment was made that somehow it
would be difficult for you to start this case with a truly open mind?
PROSPECTIVE JUROR OTTE: Not at all.

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MR. HOBBS: Would you hold that in any way as evidence
in this case–
PROSPECTIVE JUROR OTTE: No.
MR. HOBBS: -- before the trial started?
PROSPECTIVE JUROR OTTE: No.
[Crim. Doc. 356, pp. 89-90]. Mr. Hobbs’ decision not to inquire further of Ms. Otte after asking
her four times about the effect of the general information on her impartiality was not
performance “outside the range of professionally competent assistance,” and therefore,
McCauley has not demonstrated deficient performance as required by Strickland.
McCauley also argues Mr. Hobbs should not have relied on Mr. McCollum’s statement
that no other potential jurors, aside from Ms. Boone, Ms. Otte, and Ms. Robb, overheard the
conversation and should have requested to interview other jurors. However, Ms. Boone, who
reported the conduct, also independently confirmed that the conversation was limited to Ms.
Boone, Ms. Otte, and Ms. Robb. Id. at pp. 86-87. Mr. Hobbs’ reliance on statements from two
prospective jurors, one of whom was forthcoming with the conduct and sought to follow the
Court’s rules, was not outside a “wide range of reasonable professional assistance,” particularly
in light of the fact that no statements were made to suggest that any other potential juror heard
the conversation. Mr. Hobbs’ performance during voir dire in response to Mr. McCollum’s
conduct was not deficient, and therefore, McCauley has not demonstrated ineffective assistance.
2. Failure to Object to Improper Grouping of Counts and Misapplication of
Chapter Three Drug Enhancements to Money Laundering Guidelines
McCauley next argues that he received ineffective assistance of counsel because Mr.
Hobbs failed to object to the manner in which the PSR grouped his drug convictions and his
money laundering convictions. McCauley argues his drug convictions and money laundering
convictions were grouped into “two distinct groups” and instead, should have been grouped

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together “since the drug-related convictions were ‘the underlying offenses’ from which the
laundered funds were derived.” [Doc. 1, p. 5].
Section 2S1.1, note 6 of the Sentencing Guidelines states that “[i]n a case in which the
defendant is convicted of a count of laundering funds and a count for the underlying offense
from which the laundered funds were derived, the counts shall be grouped pursuant to” §
3D1.2(c). Applying § 3D1.2(c) to this case results in a single group of closely related counts
comprised of the drug counts and the money laundering counts stemming from McCauley’s
drug-related conduct. Note 1 of § 3D1.4 states that in such a case, “the combined offense level is
the level corresponding to the Group determined in accordance with § 3D1.3.” Section 3D1.3(a)
states that “for counts grouped together pursuant to [§ 3D1.2(c)], the offense level applicable to a
Group is the offense level, determined in accordance with Chapter Two and Parts A, B, and C of
Chapter Three, for the most serious of the counts comprising the Group, i.e., the highest offense
level of the counts in the Group.”
Contrary to McCauley’s argument, it is clear that the PSR and the Court properly
grouped the money laundering and drug conviction counts into a single group pursuant to §
3D1.2(c). The PSR acknowledged that “all of the counts of conviction involve trafficking in
illegal substances and the proceeds from the trafficking.” [Crim. Doc. 316, p. 21, ¶ 79]. The PSR
then “separated” the drug counts from the money laundering counts not because it considered the
counts as different groups, but because § 3D1.3(a) states that the offense level for a group of
counts is the highest offense level of the counts in the group. Following § 3D1.3(a), the
Guidelines calculation for the money laundering counts (Counts Three through Five and Seven
through Twenty-Eight) produced the highest offense level of the counts in the group. The base
offense level for the money laundering counts is calculated by applying §2S1.1, which states that

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the base offense level for money laundering convictions is “[t]he offense level for the underlying
offense from which the laundered funds were derived . . . .” The base offense level for the drug
counts – the underlying offenses from which the laundered funds were derived – was 32 based
on the Court’s finding by a preponderance of the evidence that McCauley was responsible for
more than 1,000 kilograms but less than 3,000 kilograms of marijuana. See § 2D1.1(c)(4). The
base offense level was then increased by two levels under the money laundering Guidelines
pursuant to § 2S1.1(b)(2)(B) because McCauley was convicted of money laundering under 18
U.S.C. § 1956. The base offense level was also increased by seven more levels for Chapter 3
enhancements (four levels for a leadership role pursuant to § 3B1.1(a) and three levels pursuant
to § 3C1.3 for committing an offense while on pretrial release), for a total offense level of 41.
For a defendant with a total offense level of 41 and a criminal history of III, the Guidelines range
is 360 months to life, which is what the Court calculated at McCauley’s sentencing hearing
before ultimately sentencing him to a much lower sentence of 276 months. [Crim. Doc. 347, p.
21]. Because McCauley’s money laundering and drug counts were properly grouped together
and calculated, Mr. Hobbs’ representation was not ineffective for failing to object to the
calculation based on how the counts were grouped.
McCauley also argues the Court erred by considering his role in the underlying drug
conspiracy when applying Chapter 3 enhancements to the money laundering Guidelines
calculation and that Mr. Hobbs was ineffective for not raising the issue at sentencing. Note 2(c)
of § 2S1.1 – related to the calculation of guidelines for money laundering – states that
“application of any Chapter Three adjustment shall be determined based on the offense covered
by this guideline (i.e., the laundering of criminally derived funds) and not on the underlying
offense from which the laundered funds were derived.” The Eleventh Circuit recently applied

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this rule to a defendant with convictions similar to McCauley’s and concluded that “[w]hen the
district court calculated [the defendant’s] offense level under § 2S1.1(a)(1) [as was the case with
McCauley], it could base a role enhancement on his conduct in the money laundering conspiracy
but not on his conduct in the underlying drug conspiracy.” U.S. v. Salgado, 745 F.3d 1135, 1138
(11th Cir. 2014). The Eleventh Circuit explained:
Section 1B1.5(c) of the guidelines provides that: “If the offense
level is determined by a reference to another guideline under
subsection (a) or (b)(1) above, the adjustments in Chapter Three
(Adjustments) also are determined in respect to the referenced
offense guideline, except as otherwise expressly provided.”
U.S.S.G. § 1B1.5(c). That provision means that where a guideline
determines a defendant’s offense level by reference to another
offense, the Chapter Three adjustments are to be based on the
guideline and rules for that other offense. The provision is,
however, only a default rule, as the last five words of it indicate:
“except as otherwise expressly provided.” Application Note 2(C)
of § 2S1.1 is one of those “otherwise expressly provided”
situations. It instructs us that when setting an offense level under §
2S1.1(a)(1), a court should make Chapter Three adjustments based
on the defendant’s conduct in the money laundering offense itself,
not based on his conduct in the offense from which the money that
was laundered was obtained . . . .
Id. The Eleventh Circuit stated its conclusion was consistent with decisions from the First,
Second, Sixth, Seventh, and Tenth Circuits and went on to summarize decisions from those
circuits. Id. at 1138-39; see also United States v. Cruzado-Laureano, 440 F.3d 44, 49 (1st Cir.
2006); United States v. Byors, 586 F.3d 222, 226-28 (2d Cir. 2009); United States v. Anderson,
526 F.3d 319, 328 (6th Cir. 2008); United States v. Rushton, 738 F.3d 854, 858, 859 (7th Cir.
2013); United States v. Keck, 643 F.3d 789, 800-01 (10th Cir. 2011).
While the PSR, and ultimately, this Court applied Chapter Three sentence enhancements
related to McCauley’s role in the drug-related conduct to the money laundering calculation,
[Crim. Doc. 316], McCauley suffered no prejudice from the effect of this misapplication. This is

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because, as Salgado explains, Note 2 of § 3D1.3(a) “requires courts to use ‘the highest offense
level of the counts in the group’ after factoring in the Chapter Two and Three adjustments for
each of those counts.” Salgado, 745 F.3d at 1139. Even if the Chapter 3 enhancements cannot
be added to the base offense level under the money laundering guidelines, they can be added to
the base offense level under the drug offense guidelines, which would then make the drug
offenses the “highest offense level of the counts in the group.” Basing a Guidelines calculation
on McCauley’s drug offenses rather than his money laundering offenses would result in a total
offense level of 39. This is based on a base offense level of 32 under § 2D1.1(c)(4) for 1,000 to
3,000 kilograms of marijuana, a four level increase for his leadership role pursuant to § 3B1.1,
and a three level increase pursuant to 18 U.S.C. § 3147 and U.S.S.G. § 3C1.3 for committing an
offense while on pretrial release. The two level difference (from 41 to 39) results in the same
calculation used under the money laundering offenses but without the two level increase
pursuant to § 2S1.1(b)(2)(B) for a conviction of money laundering under 18 U.S.C. § 1956.
With an offense level two levels lower and a criminal history score of III, McCauley’s
Guidelines range would be 324-405 months, which is still substantially higher than the 276
month he actually received. Because McCauley received a sentence substantially lower than
what his sentence would be even under the method of applying Chapter 3 enhancements
suggested by him, McCauley suffered no prejudice, and therefore, cannot establish that Mr.
Hobbs’ representation was ineffective.
3. Failure to Object to Enhancement Pursuant to 18 U.S.C. § 3147
McCauley also contends Mr. Hobbs provided ineffective assistance because he failed to
object to a Chapter 3 enhancement pursuant to 18 U.S.C. § 3147. Section 3C1.3 of the
Guidelines states that if a statutory enhancement under 18 U.S.C. § 3147 applies, the offense

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level should be increased by 3 levels. A statutory enhancement under 18 U.S.C. § 3147 applies if
a person is convicted of an offense committed while on pretrial release. McCauley argues the
three level enhancement under § 3147 should not have been applied to the Guidelines calculation
of his total offense level because while he was convicted of Count 30 for distribution of
marijuana, “the predicate facts [related to § 3147] were neither charged in his indictment nor
found by his jury.” [Doc. 1, p. 6]. Presumably, McCauley is arguing that while the jury found
him guilty of Count 30, they did not specifically find him guilty of committing the acts in Count
30 while on pretrial release.
McCauley argues the application of an 18 U.S.C. § 3147 enhancement without a specific
jury finding “runs counter to Apprendi.” In Apprendi v. New Jersey, the Supreme Court of the
United States held that “[o]ther than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. 466, 490 (2000).
Neither the Supreme Court nor the Eighth Circuit has expressly decided whether an
Apprendi violation occurs where the factual basis for a § 3147 enhancement is omitted from the
indictment or where the factual basis for an enhancement is not presented to a jury for
determination of guilt. See U.S. v. Gillon, 348 F.3d 755, 757-58 (8th Cir. 2003) (“assum[ing]
without deciding that under current [post-Apprendi] law it was error to omit the factual basis for
the [§ 3147] enhancement from the indictment”). However, other circuits have held that the
failure to have a jury determine if the defendant was on release at the time he committed the
underlying crime – the crux of a § 3147 enhancement – was not an Apprendi violation where the
defendant did not face a risk of a sentence which exceeded the statutory maximum for the
underlying crime. See United States v. Lewis, 660 F.3d 189, 194-95 (3d Cir. 2011) (holding that

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district court did not err in applying § 3147 enhancement where jury found the elements of §
3147 had been proven beyond a reasonable doubt and discussing the consistency of its ruling
with United States v. Samuel, 296 F.3d 1169 (D.C. Cir. 2002), United States v. Randall, 287 F.3d
27 (1st Cir. 2002), and United States v. Confredo, 528 F.3d 143 (2d Cir. 2008)). Regardless, this
Court need not address whether Mr. Hobbs’ failure to object to the three level enhancement
under § 3C1.3 and 18 U.S.C. § 3147 was outside the “wide range of professional assistance”
because even if it was, McCauley cannot show prejudice. This is because removal of the three
level enhancement under § 3C1.3 from the Court’s Guidelines calculation altogether still yields a
total offense level with a Guidelines range above or within McCauley’s actual sentence. For
example, even assuming that the Court’s total offense level should have been 39 instead of 41 as
discussed in Part II.B.2 of this Order regarding use of the drug offenses as the highest offense
level of the counts in the group, removing the 3 level enhancement under § 3C1.3 would result in
a total offense level of 36. The Guidelines range for defendant with a total offense level of 36
and a criminal history of III is 235-293 months. McCauley’s sentence of 276 months falls within
that range.3
McCauley argues that the application of the § 3147 enhancement without a jury finding
was an Apprendi violation because it elevated the statutory maximum penalty for the underlying
crime he committed while on release. McCauley was found guilty of Count 30 for distribution
of marijuana. The statutory maximum for that offense is five years. The Court sentenced
McCauley on Count Thirty to the statutory maximum of five years. To satisfy § 3147, the Court
sentenced McCauley to an additional five years to run consecutively with Count Thirty, for a
total sentence on Count Thirty of 120 months. While the additional five year sentence on Count
3

This conclusion is supported by McCauley’s own argument in his reply brief that the appropriate total offense level
would have been 36 with a criminal history category of III and a sentencing range of 235-293 months. [Doc. 12, p.
2].

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Thirty pursuant to § 3147 did elevate the sentence on Count 30 to a term above the statutory
maximum for the underlying crime, there is no prejudice. This is because the Court made clear
that the additional five year sentence pursuant to § 3147 ran consecutively to Count Thirty only
and that the total 120 month sentence under Count 30 ran concurrently with the sentences
imposed on the other counts, including the 276 month sentences applied to each of Counts One
and Two. See [Crim. Doc. 347, p. 42, ¶¶ 7-20]. So even removing the additional five year
sentence imposed on Count Thirty pursuant to § 3147, McCauley would still be required to serve
276 months’ imprisonment under each of Counts One and Two. Further still, McCauley
concedes that even if the Court could not impose a five year consecutive sentence under § 3147
without a jury finding under Apprendi, Apprendi does not prohibit the Court from considering
his conduct on pretrial release when determining a sentence under the Guidelines within the
statutory range imposed by the jury’s findings. [Doc. 12, p. 4].
McCauley also argues that the Court applied the § 3147 enhancement in two different
steps, resulting in “double counting.” McCauley contends that the Court added a three point
enhancement under § 3C1.3 to his money laundering counts and then applied a five-year
consecutive sentence to Count Thirty to satisfy the requirements of § 3147. The Court did apply
a three level enhancement under § 3C1.3, but the Court did not “double count.” Rather,
McCauley misunderstands the Court’s explanation of its effort to apply the enhancement as
required by § 3147 while also choosing to vary significantly downward to maintain consistency
among similarly situated offenders. After recalling similarly situated offenders, the Court stated:
One of the things that stands out about this case is that the
defendant was arrested, he fled, and he continued to deal drugs,
even after he was caught. That’s a significant factor to me.
What’s that alone worth? What would be an appropriate
punishment for that conduct, separate from everything else?

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[Crim. Doc. 347, p. 34]. After hearing argument and sentencing McCauley to a total of 276
months, the Court explained:
What I did was I kind of looked at, I looked at Rodebaugh who I
think is very analogous in terms of, not in terms of the precision of
the sentencing guidelines, but very analogous in terms of the
damage to society and the attitudes and, you know, the persistence
of the criminal behavior. . . . The reason that he’s given essentially
three years more than Rodebaugh is because of his conduct while
he was out on release. So I looked at what three years would be
and that’s about what the difference of the three-year bump was is
that three-point enhancement that he got as a result of his conduct.
And so I added that to the Rodebaugh sentence to keep them
comparable, but taking into account that additional factor.
Id. at 46-47. McCauley interprets this statement by the Court as “double counting,” but it is
actually the Court’s explanation of how the three-point enhancement under § 3C1.3 results in a
lengthier sentence than given to Rodebaugh due to McCauley’s conduct on pretrial release. And
while a five year consecutive sentence was applied to Count Thirty, no “double counting”
occurred because, as discussed above, the Court clarified that the five year sentence ran
consecutive to Count Thirty only, and Count Thirty’s 120 month total sentence ran concurrently
with the 276 month sentences applied to Counts One and Two. Regardless of the intricacies of
the Sentencing Guidelines, the Court imposed a 276 month sentence to be consistent with a
sentence imposed in a similar case, but taking into account McCauley’s persistent criminal
attitude.
McCauley has not demonstrated that Mr. Hobbs provided ineffective assistance of
counsel by failing to further question potential jurors regarding statements by potential juror Mr.
McCollum, by failing to object to the grouping of the counts or the application of enhancements
to his money laundering counts, or by failing to object to an enhancement pursuant to § 3147.
“Judicial scrutiny of counsel’s performance must be highly deferential” and McCauley has not

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overcome the “strong presumption that [Mr. Hobbs’] conduct falls within the wide range of
reasonable professional assistance.” Strickland, 466 U.S. at 689.
C. Fifth and Sixth Amendment Violations
Grounds Two and Five of McCauley’s Motion argue he was deprived of his Fifth and
Sixth Amendment rights to due process and a jury trial when the Court sentenced him for an
aggravated crime that was not in the jury’s verdict and used unconvicted conduct in his sentence.
First, McCauley argues that in light of Alleyne v. United States, 133 S.Ct. 2151 (2013),
his sentence violates his Fifth and Sixth Amendment rights because he was sentenced to a
mandatory minimum of not less than 10 years – corresponding with a drug quantity finding by
the Court of more than 1,000 kilograms but less than 3,000 kilograms of marijuana – rather than
a mandatory minimum of not less than 5 years – corresponding with the jury’s finding that he
was responsible for more than 100 kilograms but less than 1,000 kilograms of marijuana. In
Alleyne, the Supreme Court of the United States held that “[m]andatory minimum sentences
increase the penalty for a crime” and that “any fact that increases the mandatory minimum is an
‘element’ that must be submitted to the jury.” Alleyne, 133 S.Ct. at 2155.
On Count One, the jury found McCauley responsible for more than 100 kilograms but
less than 1,000 kilograms of marijuana. As the PSR states, the statutory range for this conviction
is not less than five years and no more than forty years. At his sentencing, the United States
presented evidence regarding drug quantities, and the Court made a factual finding under the
Guidelines that by the preponderance of the evidence, McCauley was responsible for more than
1,000 kilograms but less than 3,000 kilograms of marijuana.
McCauley argues the Court used this finding to elevate his statutory minimum sentence
from five years to ten years. In support of this argument, he points to the Addendum to the

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Presentence Report which states that “the only effect and the only purpose of the jury’s factfinding regarding drug quantities is to determine the statutory maximum” and that “the Court can
engage in traditional fact-finding at sentencing regarding the drug amount to determine the
appropriate mandatory minimum . . . so long as the sentence remains capped by the statutory
maximum of the jury’s verdict.” [Crim. Doc. 316, pp. 33-34]. This statement in the Addendum
to the PSR, which occurred before the Supreme Court’s 2014 decision in Alleyne, is clearly
inconsistent with Alleyne’s holding that facts increasing not only the mandatory maximum but
also the mandatory minimum must be submitted to the jury. However, contrary to McCauley’s
argument that he believes the Court elevated his minimum sentence based on its own findings,
the Court did not conclude or in any way state that its factual findings under the Guidelines were
also used to elevate the statutory minimum from five years to ten years. Rather, the Court only
considered its own findings in determining a sentence within the statutory range of five to forty
years, which was established by the jury’s finding. The Court’s factfinding is not inconsistent
with Alleyne since the Court did not alter the statutory range found by the jury and instead,
imposed a sentence within that range. As the Supreme Court stated in Alleyne, its holding “does
not mean that any fact that influences judicial discretion must be found by a jury.” Id. at 2163.
A judge is permitted to “exercise discretion – taking into consideration various factors relating
both to offense and offender – in imposing a judgment within the range prescribed by statute.”
Id. (quoting Apprendi, 530 U.S. at 481) (emphasis in original); see also United States v.
Gonzalez, 765 F.3d 732, 738-39 (7th Cir. 2014) (acknowledging Alleyne and concluding that the
district court did not err by finding a higher quantity of drugs than did the jury because “[a]s long
as the court stays within the statutory sentencing minimum and maximum . . . it has discretion to

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impose a sentence based on the precise drug quantity attributable to the defendants’ conspiracy
by a preponderance of the evidence.”).
Second, McCauley contends that regardless of whether no new mandatory minimum was
imposed by the Court’s factual findings, the Court should not have considered any quantity of
drugs other than the quantity found by the jury. This argument is inconsistent with Alleyne,
where the Supreme Court “[took] care to note” that its holding did not bar a judge from judicial
factfinding that aids a judge in exercising her discretion to select a sentence within the range
authorized by law. See Alleyne, 133 S.Ct. at 2163. The argument is also inconsistent with
holdings from courts that have applied Alleyne. See i.e., United States v. Thomas, 760 F.3d 879,
889-90 (8th Cir. 2014); Gonzalez, 765 F.3d at 738-39; United States v. Hinojosa, 749 F.3d 407,
412-13 (5th Cir. 2014). McCauley points to the Eighth Circuit’s opinion in United States v.
Lara-Ruiz, 721 F.39 554 (8th Cir. 2013), where the Eighth Circuit concluded that based on
Alleyne, the district court erred by applying an elevated mandatory minimum based on that
court’s finding that the defendant brandished a weapon, even when the district court stated that
the defendant’s sentence would be the same regardless of whether the mandatory minimum
based on the jury’s findings or the elevated mandatory minimum based on the court’s findings
applied. Lara-Ruiz, 721 F.3d at 558. However, this case is distinguishable from Lara-Ruiz
because in that case, the sentencing court actually elevated the defendant’s minimum sentence
based on its findings, and in this case, this Court did not. Nothing in the record suggests that the
Court concluded that McCauley was subject to a ten year mandatory minimum rather than a five
year mandatory minimum.
Because the Court used its own judicial factfinding not to elevate the statutory range
imposed by the jury’s finding, but rather to sentence McCauley within that statutory range, the

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Court did not commit error when finding that McCauley was responsible for more than 1,000
kilograms but less than 3,000 kilograms of marijuana. McCauley has not demonstrated
ineffective assistance of counsel or any violation of his Fifth and Sixth Amendment rights, and
therefore, McCauley has not established a reason why this Court should vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. Therefore, McCauley’s Motion is denied.
D. Certificate of Appealability
The Court will issue a certificate of appealability only if “the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). For the
reasons discussed above, McCauley has not made a substantial showing of the denial of a
constitutional right. Therefore, the Court will not issue a certificate of appealability in this case.
III.

Conclusion
For the reasons set forth above, Eric Scott McCauley’s Motion Under 28 U.S.C. § 2255

to Vacate, Set Aside, or Correct Sentence, [Doc. 1], is denied.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: April 21, 2015
Jefferson City, Missouri

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