16-1556

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 ASUMMARY ORDER@). A PARTY 

CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY 

COUNSEL. 

At a stated term of the United States Court of Appeals for the Second 

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 

the City of New York, on the 18th day of December, two thousand seventeen.

PRESENT:

DENNIS JACOBS,

GUIDO CALABRESI,

DENNY CHIN,

Circuit Judges.

_____________________________________

United States of America,

 Appellee,

v. 16-1556

Donahue Dewar,

 Defendant – Appellant,

Charles Ernest Dewar, Sharon King,

Defendants.

_____________________________________

FOR DEFENDANT - APPELLANT: DONAHUE DEWAR, pro se; Loretto, PA.
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FOR APPELLEE: JASON M. SWERGOLD, Assistant United States 

Attorney (Michael Ferrara, Assistant United 

States Attorney, on the brief), for Joon H. Kim, 

Acting United States Attorney for the 

Southern District of New York; New York, 

NY.

Appeal from an order of the United States District Court for the Southern District 

of New York (Karas, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the order of the district court is VACATED.

Appellant Donahue Dewar, who is presently serving a 300-month term of 

imprisonment for drug and firearms charges, appeals, pro se, from the district court’s

determination, on its own motion, that he is ineligible for a sentence reduction pursuant 

to 18 U.S.C. § 3582(c)(2). The district court reasoned that Dewar was ineligible because 

his sentence was based on a mandatory minimum that was not altered by Amendment 

782. We assume the parties’ familiarity with the underlying facts, the procedural history 

of the case, and the issues on appeal. 

Section 3582(c)(2) provides that a sentencing court may reduce a defendant’s term 

of imprisonment if it was based on a sentencing guidelines range subsequently lowered 

by the Sentencing Commission. 18 U.S.C. § 3582(c)(2). We review de novo “the 

determination of whether the defendant’s sentence was based on a sentencing range that 

was subsequently lowered by the Sentencing Commission,” and thus whether he was 

eligible for § 3582(c)(2) relief. United States v. Christie, 736 F.3d 191, 195 (2d Cir. 2013) 

(internal quotation marks and alteration omitted). 

Upon review, we conclude that the district court improperly determined that 

Dewar was not eligible for a sentence reduction. A defendant sentenced to a mandatory 

minimum is ineligible for a sentence reduction because his applicable guidelines range 

has not been lowered by an amendment to the sentencing guidelines. See United States 

v. Johnson, 732 F.3d 109, 114-15 (2d Cir. 2013); United States v. Williams, 551 F.3d 182, 185-

87 (2d Cir. 2009). However, the history of Dewar’s case reveals that his sentence for one 
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of his counts was not based on a mandatory minimum, but rather on a guidelines range 

that was subsequently lowered by Amendment 782. 

Dewar was convicted of, inter alia, conspiracy to distribute more than five 

kilograms of cocaine and a quantity of marijuana in violation of 21 U.S.C. § 841 

(“narcotics count”) and possessing firearms in furtherance of a drug trafficking crime, in 

violation of 18 U.S.C. § 924(c) (“firearms count”). At sentencing, the district court 

determined Dewar’s guidelines range for his narcotics count was 210 to 262 months’ 

imprisonment. However, because Dewar had a prior felony drug conviction, his 

narcotics count had an enhanced 20-year mandatory minimum, resulting in a guidelines 

range of 240 to 262 months’ imprisonment. The court sentenced Dewar to 240 months’ 

imprisonment because of the mandatory minimum—with the firearms count running 

concurrently—but noted that Dewar’s criminal history and the circumstances of his 

offense would have warranted the same sentence if the mandatory minimum did not 

apply. We affirmed the conviction, holding that the district court committed harmless 

error by failing to ask Dewar to affirm his prior conviction because the court would have 

imposed the same sentence without the mandatory minimum. United States v. Dewar, 

375 F. App’x 90, 94 (2d Cir. 2010).

A year later, we directed the district court to resentence Dewar for his firearms 

count to reflect the decision in Abbott v. United States, 562 U.S. 8 (2010), which required 

courts to impose the 5-year mandatory sentence for violations of § 924(c) consecutively. 

At resentencing, the district court revisited the mandatory minimum for Dewar’s 

narcotics count, determined it applied, and sentenced Dewar to 300 months’ 

imprisonment—240 months for the narcotics count, and 60 months for the firearms count. 

On appeal, we held that remand to the district court was narrowly limited to resentencing 

for the firearms count, but affirmed the sentence on the grounds that the original sentence 

for the narcotics count was based on the guidelines. United States v. Dewar, 624 F. App’x 

59, 60 (2d Cir. 2015). 

Accordingly, we have twice determined implicitly that Dewar’s 240-month 

sentence for his narcotics count was not based on a mandatory minimum, but rather on 

the applicable guidelines range used at his original sentencing. Because Amendment 

782 lowered the offense levels for the U.S.S.G. §2D1.1 drug quantity tables, which were 

the basis for Dewar’s original guidelines range, he is eligible for a sentence reduction.
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We are therefore obliged to vacate the challenged order denying § 3582(c)(2) relief 

and to remand the case. In doing so, we observe that the district court has the discretion 

to determine whether a reduction is warranted under the circumstances of the case. See 

Dillon v. United States, 560 U.S. 817, 826–27 (2010). We take no position as to whether a 

reduction is called for in this particular case, or the appropriate extent of any such 

reduction. See id.; United States v. Borden, 564 F.3d 100, 104 (2d Cir. 2009).

We have considered all of the parties’ remaining arguments and find them to be 

without merit. Accordingly, the order of the district court is VACATED, and the case is

REMANDED for further proceedings.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court