* The Clerk of the Court is respectfully directed to

amend the official caption as set-forth above.

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

New York, on the 26th 4 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

Appellees.* 23

24 - - - - - - - - - - - - - - - - - - - -X

25

26 FOR APPELLANT-CROSS-APPELLEE DEWAR: Clinton Calhoun, III,

27 Briccetti, Calhoun &

28 Lawrence, LLP, White

29 Plains, New York.
2

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
1 The Supreme Court denied a petition for rehearing in

this case on April 18, 2011.

3

Abbott v. United States, 131 S. Ct. 18 (2010).1 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