United States v. Dewar & King ( 2011 )

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.*
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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