United States v. Dewar, 624 F. App'x 59

Background

Defendant Donahue Dewar was convicted of conspiracy to distribute cocaine (21 U.S.C. § 846) and for possessing a gun in furtherance of a drug-trafficking offense (18 U.S.C. § 924(c)).
At initial sentencing the court imposed concurrent terms: 240 months for the drug conspiracy and 60 months for the § 924(c) count.
The district court failed to conduct the § 851(b) colloquy regarding a prior felony that would raise the statutory mandatory minimum from 10 to 20 years for the drug count.
This Court previously affirmed the 240-month sentence as harmless error because the district court stated it would have imposed the same sentence regardless of the mandatory minimum; the Supreme Court later vacated and remanded on a separate § 924(c) issue.
On remand the district court, applying Abbott and Tejada, imposed a consecutive 60-month § 924(c) term (total 300 months) and separately held a hearing — arguably beyond the limited remand — finding the prior felony proved “conclusively.”

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court exceeded the appellate mandate by holding a hearing on prior-felony information	Government contends limited remand allowed correcting sentence and district court could address related matters	Dewar contends the remand was narrowly for ordering § 924(c) consecutive; hearing on prior felony exceeded scope	Court held any hearing on the prior felony did not require another remand; resentencing was within scope because original error was harmless and remand was to impose consecutive § 924(c) term
Whether the § 851 prior-felony finding should reduce Dewar’s sentence because original colloquy was missing	—	Dewar urged that absence of colloquy invalidates use of prior-felony info to increase mandatory minimum	Court found challenge moot: original judge made clear 240-month term would have been imposed regardless, so prior-felony issue did not change outcome
Whether Abbott and Tejada required a consecutive § 924(c) sentence despite another higher mandatory minimum	Government argued Abbott/Tejada require consecutive § 924(c) sentence	Dewar argued concurrent sentence was proper due to higher mandatory minimum on drug count	Court applied Abbott and Tejada and affirmed imposition of consecutive 60-month § 924(c) term to run after the 240-month drug sentence
Whether the appellate history required another remand for resentencing	—	Dewar sought another remand to revisit prior-felony-based increase	Court declined further remand, affirming district court judgment

Key Cases Cited

Abbott v. United States, 562 U.S. 8 (2010) (§ 924(c) mandatory sentence must run consecutively to other sentences)
United States v. Tejada, 631 F.3d 614 (2d Cir. 2011) (applies Abbott in Second Circuit; § 924(c) consecutive requirement)
United States v. Quintieri, 306 F.3d 1217 (2d Cir. 2002) (mandate rule: resentencing on remand should be limited absent explicit instruction)
United States v. Dewar, 375 F. App’x 90 (2d Cir. 2010) (earlier panel affirmed sentence as harmless error despite missing § 851 colloquy)