United States Court of Appeals

for the Fifth Circuit ____________

No. 22-40732

Summary Calendar

____________

United States of America, 

Plaintiff—Appellee, 

versus

Walter Yovany Molina-Mendoza, 

Defendant—Appellant. 

______________________________

Appeal from the United States District Court 

for the Southern District of Texas

USDC No. 7:22-CR-756-1 

______________________________

Before Barksdale, Engelhardt, and Wilson, Circuit Judges. 

Per Curiam:*

Walter Yovany Molina-Mendoza pleaded guilty to illegally reentering 

the United States after removal, in violation of 8 U.S.C. § 1326(a) (outlining 

illegal reentry) and (b) (outlining penalties). He was sentenced to a withinGuidelines 57-months’ sentence. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

December 28, 2023

Lyle W. Cayce

Clerk

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No. 22-40732

2

He asserts the court erred by, based on his three-year sentence for 

possessing a deadly weapon in a penal institution, assessing three criminalhistory points under Guideline § 4A1.1(a) (adding “3 points for each prior 

sentence of imprisonment exceeding one year and one month”); and 

applying an eight-level enhancement under Guideline § 2L1.2(b)(3)(B)

(“increas[ing] by 8 levels” if sentence for felony conviction was “two years 

or more”). He contends: in the light of the credit he received for time 

served, the Government failed to establish, by a preponderance of evidence,

he served a term of imprisonment for the deadly-weapon offense. Molina

maintains this erroneously increased his Guidelines sentencing range,

therefore, affecting his substantial rights. 

Because Molina did not preserve these issues in district court, review 

is only for plain error. E.g., United States v. Broussard, 669 F.3d 537, 546 (5th 

Cir. 2012). Under that standard, he must show a forfeited plain error (clearor-obvious error, rather than one subject to reasonable dispute) that affected 

his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If 

he makes that showing, we have the discretion to correct the reversible plain 

error, but generally should do so only if it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings”. Id. (citation omitted). 

Our court granted the Government’s unopposed motion to 

supplement the record on appeal with state records regarding Molina’s

serving the deadly-weapon sentence. We consider “whether there is plain 

error at the time of appellate consideration”; therefore, we review the record 

as supplemented on appeal. United States v. Wikkerink, 841 F.3d 327, 332 

(5th Cir. 2016) (citation omitted).

The record, as supplemented, shows Molina served at least some 

period of imprisonment for the deadly-weapon offense. Accordingly, he has 

not shown the requisite clear-or-obvious error in the district court’s assessing 

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three criminal-history points for his prior three-year, deadly-weapon 

sentence. E.g., United States v. Carlile, 884 F.3d 554, 557–59 (5th Cir. 2018)

(applying plain-error review to whether court erred in “calculating 

[defendant]’s criminal history score”). 

Likewise, he fails to show the requisite clear-or-obvious error in the

court’s applying the eight-level enhancement. See Guideline 

§ 2L1.2(b)(3)(B) & cmt. n.2 (defining “[s]entence imposed” as “sentence of 

imprisonment” from Guideline § 4A1.2 Application Note 2); Guideline 

§ 4A1.2 cmt. n.2 (“To qualify as a sentence of imprisonment, the defendant 

must have actually served a period of imprisonment on such sentence . . . . 

[C]riminal history points are based on the sentence pronounced, not the 

length of time actually served.”); United States v. Rodriguez-Parra, 581 F.3d 

227, 229–31 (5th Cir. 2009) (applying plain-error review).

AFFIRMED.

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