United States v. Dewar ( 2015 )

14-2095
United States v. Dewar
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 16th day of December, two thousand fifteen.
5
6 PRESENT: DENNIS JACOBS,
7 PIERRE N. LEVAL
8 GUIDO CALABRESI,
9 Circuit Judges.
10
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12 UNITED STATES OF AMERICA,
13 Appellee,
14
15 -v.- 14-2095
16
17 DONAHUE DEWAR,
18 Defendant-Appellant.
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20
21 FOR APPELLEE: Jason M. Swergold and Michael A.
22 Levy, Assistant United States
23 Attorneys, for Preet Bharara,
24 United States Attorney for the
25 Southern District of New York.
26
1
1 FOR APPELLANT: Ryan Thomas Truskoski, Ryan
2 Thomas Truskoski, P.A.,
3 Harwinton, Connecticut.
4
5 Appeal from a judgment of the United States District
6 Court for the Southern District of New York (Karas, J.).
7
8 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
9 AND DECREED that the judgment of the district court be
10 AFFIRMED.
11
12 Defendant Donahue Dewar appeals from a judgment of
13 conviction and sentence entered by the United States
14 District Court for the Southern District of New York (Karas,
15 J.). The defendant claims that on remand the district court
16 went beyond the scope of the mandate and improperly relied
17 on prior felony information to sentence him to a mandatory
18 minimum sentence of 240 months. We assume the parties’
19 familiarity with the underlying facts, the procedural
20 history, and the issues presented for review.
21
22 At the original sentencing, the district court failed
23 to hold a colloquy on the existence of the prior conviction,
24 as required by statute. See 21 U.S.C. § 851(b). That prior
25 conviction increased the mandatory minimum from 10 to 20
26 years imprisonment for that count. See 21 U.S.C.
27 §§ 841(b)(1)(A) & 851. We upheld the 20-year sentence, and
28 deemed harmless the error of neglecting to hold a colloquy,
29 because the district court expressly stated it would have
30 imposed the same sentence regardless of any mandatory
31 minimum. See United States v. Dewar, 375 F. App’x 90, 94
32 (2d Cir. 2010). The Supreme Court granted certiorari on the
33 Government’s appeal (which argued that the mandatory minimum
34 of § 924(c) must be imposed consecutively), vacated our
35 judgment, and remanded to us for further consideration. We
36 then re-affirmed the conviction “[f]or the reasons stated in
37 our earlier order,” and remanded to the district court for
38 the “limited purpose” of allowing the district court to
39 impose a sentence in accord with the Supreme Court’s
40 decision in Abbott v. United States, 562 U.S. 8 (2010) and
41 our decision in United States v. Tejada, 631 F.3d 614, 619
42 (2d Cir. 2011). See United States v. Dewar, 420 F. App’x
43 95, 96-97 (2d. Cir. 2011). Those decisions establish that
44 § 924(c) requires a mandatory consecutive sentence even
45 where a defendant also receives a higher mandatory minimum
46 sentence under a different statute on a different count of
47 conviction.
2
1 Prior to remand, Dewar had been serving concurrent
2 sentences of 60 months’ imprisonment for possessing a gun in
3 furtherance of a drug trafficking crime, see 18 U.S.C.
4 § 924(c), and 240 months’ imprisonment for conspiracy to
5 distribute five kilograms or more of cocaine and a quantity
6 of marijuana, see 21 U.S.C. § 846. On remand, in accordance
7 with Abbott and Tejada, the district court sentenced Dewar
8 to 300 months, which included 240 months for conspiracy and
9 a consecutive sentence of 60 months for the § 924(c) charge.
10 The district court took an additional step by giving Dewar a
11 hearing on the prior felony, even though the district court
12 acknowledged that this was likely beyond the scope of the
13 mandate. The district court found that the Government had
14 proved the existence of the prior felony “conclusively.”
15
16 “[A]bsent explicit language in the mandate to the
17 contrary, resentencing should be limited when the Court of
18 Appeals upholds the underlying convictions but determines
19 that a sentence has been erroneously imposed and remands to
20 correct that error.” United States v. Quintieri, 306 F.3d
21 1217, 1228 (2d Cir. 2002). Dewar now claims that the
22 district court improperly exceeded the mandate when it held
23 a hearing on the question of the prior felony; he hopes we
24 will ignore both the district court’s finding that the prior
25 felony “conclusively” happened and our own conclusion that
26 any failure to conduct a colloquy at the original sentencing
27 was harmless. Dewar’s challenge to the increase of the
28 mandatory minimum based on the prior felony information is
29 moot because the original sentencing judge made clear that
30 the 240-month sentence would be imposed regardless of
31 whether Dewar was a prior offender. See Dewar, 420 F. App’x
32 at 96 (citing Dewar, 375 F. App’x at 92-94). Our remand was
33 narrowly limited to imposing a consecutive sentence for the
34 § 924(c) charge. The district court did that, and any
35 hearing on the prior felony was not an error that requires
36 yet another remand for yet another resentencing.
37
38 For the foregoing reasons, and finding no merit in
39 defendant’s other arguments, we hereby AFFIRM the judgment
40 of the district court.
41
42 FOR THE COURT:
43 CATHERINE O’HAGAN WOLFE, CLERK
44
3