1 6

- 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 A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT O N 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 18 th da y of December , two thousand s even tee n.

PRESENT: DENNIS JACOBS
, GUIDO CALABRESI
, DENNY CHIN
, Circuit Judges.

_____________________________________

United States of America

, Appellee

,

v. 1 6

- 1556

Donahue Dewar

, Defendant

– Appellant
,

Charles Ernest Dewar, Sharon King, Defendants

.

_____________________________________

FOR DEFENDANT

- APPELLANT: D ONAHUE D EWAR , pro se ; Loretto

, PA

.2 FOR APPELLEE : J ASON M. S WERGOLD , Assistant United States Attorney ( Michael Ferrara , Assistant United
States Attorney

, on the b rief ), for Joon H. Kim, Acting United States Attorney for the Southern District of New York; New York,
NY.

Appeal from an order of the U nited States District Court for t he 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 3 0 0

- month term of imprisonment for drug and firearm s charges, appeal s , 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 w as 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 guideline s 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 lo wered 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 t he district court im properly determined that

Dewar was not eligible for a sentence reduction

. A defendant sentenced to a mandatory

mi nimum is ineligible for a sentence reduction because his applicable guidelines range
ha s 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 one3 of his counts was not ba sed 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
kilo grams of cocaine and a quantity of marijuana in violation of 21 U.S.C. § 841 (“narcotics count”) and possessing firearm s in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (“firearms count”). At sentencing, t he district court determined Dewar’s guideline s range for his n arcotics 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 se ntenced Dewar to 240 months’ imprisonment because of the mandatory minimum

— with the firearms count run ning concurrently

— but noted that Dewar’s criminal history and the circumstances of his
offense would have warranted the same sentence if the mandatory min imum did not apply . W e affirmed the conviction, holding that the district court committed harmless error by fail ing to ask Dewar to affirm his prior conviction because the court would have imposed the same sentence without the mandatory minimum. United S tates 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 Abbot t 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 senten ced Dewar to 300 months’ imprisonment

— 240 months for the narcotics count, and 60 months for the firearms count. On appeal, w e held that remand to the district court was narrowly limited to resentencing
for the firearms count , but affir med 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 orig inal guidelines range, he is eligible for a sentence reduction

.4 W e 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 a ny such
reduction. See id .; United States v. Borden , 564 F.3d 100, 104 (2d Cir. 2009).

W e 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