Green & Willstatter

Attorneys at Law

200 Mamaroneck Avenue

Suite 403

White Plains, New York 10601

_______

Theodore S. Green (914) 948-5656

Richard D. Willstatter FAX (914) 948-8730 e-mail: willstatter@msn.com

September 27, 2007

Hon. Stephen C. Robinson

United States District Court

300 Quarropas Street

White Plains, NY 10601

Re: United States v. Charles Ernest Dewar

07 Cr. 552 (SCR)

06 Cr. 311 (SCR)

Dear Judge Robinson:

I represent Charles Ernest Dewar, the defendant, in connection with the passport

fraud case, 07 Cr. 552 (SCR) which was transferred to this district for a plea. I

respectfully submit this letter as a sentencing memorandum.

Mr. Dewar was arrested in August 2005 by state authorities. He subsequently

learned there was a federal charge pending against him in California. I was retained in

December 2005 to attempt to move the California case to the Southern District of New

York for a guilty plea. To this end, I successfully negotiated with prosecutors in the

Southern District of California and this district for a Rule 20 disposition. When it

became apparent that Mr. Dewar could not resolve the narcotics case in state court and

that it would result in a federal indictment, we decided to wait until a settlement could

be negotiated for both cases. Accordingly, the Court should understand that Mr. Dewar

has been making efforts toward disposition for nearly two years.

Mr. Dewar should receive an adjustment to his sentence to reflect the time he

served in connection with the state court charges that ultimately resulted in the federal

narcotics indictment. The defendant was arrested by the police in relation to the same

incident that resulted in the 06 Cr. 311 (SCR) indictment. He was detained on those

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charges at the Westchester County Jail from August 28, 2005 to April 6, 2006. The Court

should adjust the federal sentence to reflect his service of this time, 221 days, pursuant

to U.S.S.G. 5G1.3(b). See United States v. Rivers, 329 F.3d 119 (2d Cir. 2003); Rosario v.

United States, 2004 U.S. Dist. LEXIS 3715 *16 (S.D.N.Y. March 9, 2004)(“Under §5G1.3(b),

if convictions arise from the same course of conduct, district courts may reduce the later

sentence to account for the amount of time already served, on the prior, undischarged

sentence, thus enabling the sentences to run concurrently and terminate at the same

time. The purpose of § 5G1.3(b) is to ensure that petitioner is properly credited for the

time served for the related crime.”). Here, the state charges were apparently dismissed

but the defendant served more than seven and one-third months on account of the same

criminal transaction for which he was convicted in federal court. Whatever sentence the

Court selects should be reduced by 221 days.

However, the government has indicated it believes the defendant can be credited

by the BOP with time spent in state custody in this case pursuant to 18 U.S.C. § 3585(b).

See United States v. Payton, 159 F.3d 49, 61-62 (2d Cir. 1998). There, the Circuit held:

The United States Attorney General has the authority to determine the

appropriate credit for time spent in "official detention" under § 3585(b)

once a defendant has begun to serve his or her sentence. Specifically, §

3585(b) permits the Attorney General to award credit for time spent in

state detention pending trial on subsequently dismissed state charges that

arose out of the same incident for which the prisoner was convicted in

federal court. The Attorney General delegated this authority to the Bureau

of Prisons (BOP).

Id. at 61-62. (citations omitted). Accordingly, if the Court determines that Section

3585(b) will provide sufficient credit for the 221 days Dewar spent in state custody, it

should enter the dates of the state court detention into the judgment and recommend to

the BOP that the defendant be afforded this credit.

In determining what sentence is sufficient but not greater than necessary

pursuant to 18 U.S.C. § 3553(a), the Court should be aware that, because Mr. Dewar is

an alien, he will not be eligible for entry into a community corrections center or halfway

house. He will likely be transferred from BOP custody directly to Homeland Security

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pending deportation. We hope this additional period of detention by the government

pending removal from the United States will be brief but cannot accurately predict how 

long he will be detained by ICE after he is released by the BOP.

Mr. Dewar requests the Court recommend the defendant be admitted into the

BOP’s residential drug abuse program. The PSR, ¶68, shows he has such problems and

could benefit from participation in this program.

Very truly yours,

RICHARD D. WILLSTATTER

cc: Brent Wible, Esq.

Kerry Lawrence, Esq.

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