United States v. Dewar & King

08-5958-cr (L) United States v. Dewar & King 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 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 27 * The Clerk of the Court is respectfully directed to amend the official caption as set-forth above. 1 FOR APPELLANT-CROSS-APPELLEE DEWAR: Clinton Calhoun, III, 2 Briccetti, Calhoun & 3 Lawrence, LLP, White 4 Plains, New York. 5 6 FOR APPELLANT-CROSS-APPELLEE KING: Jeremy Gutman, New 7 York, New York. 8 9 FOR APPELLEE-CROSS-APPELLANT: Brent S. Wible, 10 Assistant United States 11 Attorney, for Preet 12 Bharara, United States 13 Attorney for the 14 Southern District of 15 New York, New York, New 16 York. 17 18 On remand from the Supreme Court of the United States. 19 20 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED 21 AND DECREED that the judgments of the district court be 22 AFFIRMED IN PART, VACATED IN PART, and REMANDED. 23 24 Defendants-appellants-cross-appellees Donahue Dewar and 25 Sharon King were convicted, after a jury trial in the United 26 States District Court for the Southern District of New York, 27 of conspiring to distribute more than five kilograms of 28 cocaine and a quantity of marijuana, in violation of 21 29 U.S.C. § 846; distribution and possession with intent to 30 distribute more than 500 grams of cocaine, in violation of 31 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B); distribution and 32 possession with intent to distribute a quantity of 33 marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 34 841(b)(1)(D); and using and carrying a firearm during and in 35 relation to a drug trafficking crime, in violation of 18 36 U.S.C. § 924(c)(1)(A)(i) and 2. Dewar was also convicted of 37 being a felon in possession of a firearm affecting 38 interstate commerce, in violation of 18 U.S.C. § 922(g). 39 40 Dewar and King appealed from their judgments of 41 conviction; the government cross-appealed from the district 42 court’s decision to impose concurrent sentences for the 43 convictions pursuant to 18 U.S.C. § 924(c). This Court 44 affirmed the judgments of conviction and the sentences. 45 United States v. Dewar, 375 F. App’x 90 (2d Cir. Apr. 29, 46 2010) (unpublished summary order). The Supreme Court 47 granted certiorari, vacated our judgment, and remanded the 2 1 matter to this Court for further consideration in light of 2 Abbott v. United States, 131 S. Ct. 18 (2010).1 We assume 3 the parties’ familiarity with the underlying facts, the 4 procedural history, and the issues presented for review. 5 6 For the reasons stated in our earlier order, Dewar, 375 7 F. App’x at 92-94, we affirm the convictions of Dewar and 8 King. 9 10 This Court’s decisions in United States v. Whitley, 529 11 F.3d 150 (2d Cir. 2008) and United States v. Williams, 558 12 F.3d 166 (2d Cir. 2009), “construing the ‘except’ clause of 13 18 U.S.C. § 924(c)(1)(A), [have been] abrogated by the 14 Supreme Court’s decision in Abbott[.]” United States v. 15 Tejada, 631 F.3d 614, 619 (2d Cir. 2011). We vacate and 16 remand the sentences imposed on Dewar and King for the 17 limited purpose of allowing the district court to impose 18 sentences in accord with the Supreme Court’s decision in 19 Abbott and this Court’s decision in Tejada. 20 21 The convictions are AFFIRMED; the sentences are VACATED 22 and the matter is REMANDED to allow the district court to 23 resentence Dewar and King in light of Abbott v. United 24 States, 131 S. Ct. 18 (2010) and United States v. Tejada, 25 631 F.3d 614 (2d Cir. 2011). 26 27 28 FOR THE COURT: 29 CATHERINE O’HAGAN WOLFE, CLERK 30 1 The Supreme Court denied a petition for rehearing in this case on April 18, 2011. 3