     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
