United States v. Dewar & King (Amended) ( 2011 )

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
2
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.
3