United States v. Proctor

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 20, 2021
• Docket: 21-60318
• Status: Unpublished

Opinion

Case: 21-60318 Document: 00516062658 Page: 1 Date Filed: 10/20/2021

United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED No. 21-60318 October 20, 2021 Summary Calendar Lyle W. Cayce Clerk

United States of America,

Plaintiff—Appellee,

versus

Deonte Terrell Proctor,

Defendant—Appellant.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:17-CR-141-1

Before Wiener, Dennis, and Haynes, Circuit Judges. Per Curiam:* Deonte Terrell Proctor appeals the sentence imposed following his conviction for possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g). The district court sentenced Proctor under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), based on his three state

* Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 21-60318 Document: 00516062658 Page: 2 Date Filed: 10/20/2021

No. 21-60318

convictions for selling cocaine committed on April 8, 2009, April 14, 2009, and April 20, 2009. On appeal, Proctor argues that the district court erred in sentencing him under the ACCA. Our review is de novo. United States v. McGee, 460 F.3d 667, 668 (5th Cir. 2006). In the alternative, Proctor requests a stay of his appeal until United States v. Wooden, 945 F.3d 498 (6th Cir. 2019), cert. granted, 141 S. Ct. 1370 (2021), is decided by the United States Supreme Court. Proctor’s three prior state drug convictions were for offenses that were committed sequentially, not simultaneously, and, thus were offenses “committed on occasions different from one another” as required by the ACCA. § 924(e)(1); see United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006); see also United States v. White, 465 F.3d 250, 253 (5th Cir. 2006); United States v. Barr, 130 F.3d 711, 712 (5th Cir. 1997); United States v. Kelley, 981 F.2d 1464, 1473-74 (5th Cir. 1993). The fact that Proctor was convicted of and sentenced to these three separate offenses on the same day does not change this conclusion. See United States v. Ressler, 54 F.3d 257, 259 (5th Cir. 1995) (28 U.S.C. § 2255 case citing United States v. Herbert, 860 F.2d 620, 622 (5th Cir. 1988)). The district court’s judgment is AFFIRMED. Proctor’s motion to stay his appeal is DENIED.