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 4 New York, on the 26th day of April, two thousand eleven.

6 PRESENT: DENNIS JACOBS, 7 Chief Judge, 8 JOSEPH M. McLAUGHLIN, 9 ROBERT D. SACK, 10 Circuit Judges.

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, 21 DONAHUE DEWAR and SHARON KING, 22 Defendants-Appellants-Cross 23 Appellees.* 24 - - - - - - - - - - - - - - - - - - - -X 26 FOR APPELLANT-CROSS-APPELLEE DEWAR: Clinton Calhoun, III, 27 Briccetti, Calhoun & 28 Lawrence, LLP, White 29 Plains, New York.

* The Clerk of the Court is respectfully directed to amend the official caption as set-forth above.

2 FOR APPELLANT-CROSS-APPELLEE KING: Jeremy Gutman, New 3 York, New York.

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.

14 On remand from the Supreme Court of the United States.

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgments of the district court be AFFIRMED IN PART, VACATED IN PART, and REMANDED.

20 Defendants-appellants-cross-appellees Donahue Dewar and Sharon King were convicted, after a jury trial in the United States District Court for the Southern District of New York, of conspiring to distribute more than five kilograms of cocaine and a quantity of marijuana, in violation of 21 25 U.S.C. § 846; distribution and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B); distribution and possession with intent to distribute a quantity of marijuana, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(D); and using and carrying a firearm during and in 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 an additional count of distribution and possession with intent to distribute more than 500 grams of cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1) and 841(b)(1)(B).

37 Dewar and King appealed from their judgments of conviction; the government cross-appealed from the district court’s decision to impose concurrent sentences for the convictions pursuant to 18 U.S.C. § 924(c). This Court affirmed the judgments of conviction and the sentences.

42 United States v. Dewar, 375 F. App’x 90 (2d Cir. Apr. 29, 2010) (unpublished summary order). The Supreme Court granted certiorari, vacated our judgment, and remanded the matter to this Court for further consideration in light of

1 Abbott v. United States, 131 S. Ct. 18 (2010).1 We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.

5 For the reasons stated in our earlier order, Dewar, 375 F. App’x at 92-94, we affirm the convictions of Dewar and King.

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 18 U.S.C. § 924(c)(1)(A), [have been] abrogated by the Supreme Court’s decision in Abbott[.]” United States v. Tejada, 631 F.3d 614, 619 (2d Cir. 2011). We vacate and remand the sentences imposed on Dewar and King for the limited purpose of allowing the district court to impose sentences in accord with the Supreme Court’s decision in Abbott and this Court’s decision in Tejada.

20 The convictions are AFFIRMED; the sentences are VACATED and the matter is REMANDED to allow the district court to resentence Dewar and King in light of Abbott v. United States, 131 S. Ct. 18 (2010) and United States v. Tejada, 631 F.3d 614 (2d Cir. 2011).

27 FOR THE COURT: 28 CATHERINE O’HAGAN WOLFE, CLERK

The Supreme Court denied a petition for rehearing in this case on April 18, 2011.