United States v. Dewar & King

SUMMARY ORDER Defendants-appellants-eross-appellees Donahue Dewar and Sharon King were convicted, after a jury trial in the United States District Court for the Southern District of New York, of conspiring to distribute more than five kilograms of cocaine and a quantity of marijuana, in violation of 21 U.S.C. § 846; distribution and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B); distribution and possession with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(D); and using and carrying a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(l)(A)(i) and 2. Dewar was also convicted of being a felon in possession of a firearm affecting interstate commerce, in violation of 18 U.S.C. § 922(g). Dewar and King appealed from their judgments of conviction; the government cross-appealed from the district court’s decision to impose concurrent sentences for the convictions pursuant to 18 U.S.C. § 924(c). This Court affirmed the judgments of conviction and the sentences. United States v. Dewar, 375 Fed.Appx. 90 (2d Cir.2010) (unpublished summary order). The Supreme Court granted certiorari, vacated our judgment, and remanded the matter to this Court for further consideration in light of Abbott v. United States, — U.S. -, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010). 1 We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. For the reasons stated in our earlier order, Dewar, 375 Fed.Appx. at 92-94, we affirm the convictions of Dewar and King. This Court’s decisions in United States v. Whitley, 529 F.3d 150 (2d Cir.2008) and United States v. Williams, 558 F.3d 166 (2d Cir.2009), “construing the ‘except’ clause of 18 U.S.C. § 924(c)(1)(A), [have been] abrogated by the Supreme Court’s decision in Abbott[.J” United States v. Tejada, 631 F.3d 614, 619 (2d Cir.2011). We vacate and remand the sentences imposed on Dewar and King for the limited purpose of allowing the district court to impose sentences in accord with the Su *97 preme Court’s decision in Abbott and this Court’s decision in Tejada. The convictions are AFFIRMED; the sentences are VACATED and the matter is REMANDED to allow the district court to resentence Dewar and King in light of Abbott v. United States, — U.S. -, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010) and United States v. Tejada, 631 F.3d 614 (2d Cir.2011). Footnotes [1] The Supreme Court denied a petition for rehearing in this case on April 18, 2011, ■— U.S. -, 131 S.Ct. 2148, 179 L.Ed.2d 932 (2011).