United States v. Dewar & King (Amended)

08-5958-cr (L) United States v. Dewar & King (Amended)

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

AMENDED 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 Daniel Patrick Moynihan 3 United States Courthouse, 500 Pearl Street, in the City of 4 New York, on the 26th day of April, two thousand eleven. 5 6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 JOSEPH M. McLAUGHLIN, 9 ROBERT D. SACK, 10 Circuit Judges. 11 12 - - - - - - - - - - - - - - - - - - - -X 13 UNITED STATES OF AMERICA, 14 Appellee-Cross-Appellant, 15 08-5958-cr; 16 -v.- 08-6222-cr; 17 09-1338-cr; 18 CHARLES ERNEST DEWAR, 10-0403-cr 19 Defendant, 20 21 DONAHUE DEWAR and SHARON KING, 22 Defendants-Appellants-Cross 23 Appellees.* 24 - - - - - - - - - - - - - - - - - - - -X 25 26 FOR APPELLANT-CROSS-APPELLEE DEWAR: Clinton Calhoun, III, 27 Briccetti, Calhoun & 28 Lawrence, LLP, White 29 Plains, New York.

* The Clerk of the Court is respectfully directed to amend the official caption as set-forth above.

1 2 FOR APPELLANT-CROSS-APPELLEE KING: Jeremy Gutman, New 3 York, New York. 4 5 FOR APPELLEE-CROSS-APPELLANT: Brent S. Wible, 6 Assistant United States 7 Attorney, for Preet 8 Bharara, United States 9 Attorney for the 10 Southern District of 11 New York, New York, New 12 York. 13 14 On remand from the Supreme Court of the United States. 15 16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 17 AND DECREED that the judgments of the district court be 18 AFFIRMED IN PART, VACATED IN PART, and REMANDED. 19 20 Defendants-appellants-cross-appellees Donahue Dewar and 21 Sharon King were convicted, after a jury trial in the United 22 States District Court for the Southern District of New York, 23 of conspiring to distribute more than five kilograms of 24 cocaine and a quantity of marijuana, in violation of 21 25 U.S.C. § 846; distribution and possession with intent to 26 distribute more than 500 grams of cocaine, in violation of 27 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B); distribution and 28 possession with intent to distribute a quantity of 29 marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 30 841(b)(1)(D); and using and carrying a firearm during and in 31 relation to a drug trafficking crime, in violation of 18 32 U.S.C. § 924(c)(1)(A)(i) and 2. Dewar was also convicted of 33 an additional count of distribution and possession with 34 intent to distribute more than 500 grams of cocaine, in 35 violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B). 36 37 Dewar and King appealed from their judgments of 38 conviction; the government cross-appealed from the district 39 court’s decision to impose concurrent sentences for the 40 convictions pursuant to 18 U.S.C. § 924(c). This Court 41 affirmed the judgments of conviction and the sentences. 42 United States v. Dewar, 375 F. App’x 90 (2d Cir. Apr. 29, 43 2010) (unpublished summary order). The Supreme Court 44 granted certiorari, vacated our judgment, and remanded the 45 matter to this Court for further consideration in light of

1 Abbott v. United States, 131 S. Ct. 18 (2010).1 We assume 2 the parties’ familiarity with the underlying facts, the 3 procedural history, and the issues presented for review. 4 5 For the reasons stated in our earlier order, Dewar, 375 6 F. App’x at 92-94, we affirm the convictions of Dewar and 7 King. 8 9 This Court’s decisions in United States v. Whitley, 529 10 F.3d 150 (2d Cir. 2008) and United States v. Williams, 558 11 F.3d 166 (2d Cir. 2009), “construing the ‘except’ clause of 12 18 U.S.C. § 924(c)(1)(A), [have been] abrogated by the 13 Supreme Court’s decision in Abbott[.]” United States v. 14 Tejada, 631 F.3d 614, 619 (2d Cir. 2011). We vacate and 15 remand the sentences imposed on Dewar and King for the 16 limited purpose of allowing the district court to impose 17 sentences in accord with the Supreme Court’s decision in 18 Abbott and this Court’s decision in Tejada. 19 20 The convictions are AFFIRMED; the sentences are VACATED 21 and the matter is REMANDED to allow the district court to 22 resentence Dewar and King in light of Abbott v. United 23 States, 131 S. Ct. 18 (2010) and United States v. Tejada, 24 631 F.3d 614 (2d Cir. 2011). 25 26 27 FOR THE COURT: 28 CATHERINE O’HAGAN WOLFE, CLERK 29

1 The Supreme Court denied a petition for rehearing in this case on April 18, 2011.