# United States Court **of Appeals**  **f or 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) . H e was sentenced to a within

Guidelines 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 Case: 22-40732 Document: 00517015255 Page: 1 Date Filed: 12/28/2023No. 22

- 40732

2 He asserts the court erred by , based on his three

- year sentence f or possessing a deadly weapon in a penal institution , assessing three criminal

history 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 G uid elines 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 (clear

or
- 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 cou rt granted t he 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 revi ew the record as supplemented on appeal. United States v. Wikkerink , 841 F.3d 327, 332 (5th Cir. 2016) (citation omitted).
T he 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 Case: 22-40732 Document: 00517015255 Page: 2 Date Filed: 12/28/2023No. 22

- 40732

3 three criminal

- history points for his prior three

- year , deadly

- weapon sentence

. E.g. , United States v. Carlile , 884 F.3d 554 , 557

– 5 9 (5th Cir. 2018) (applying plain

- error review to whether court erred in “calculating [ d efendant] ’s criminal history score”)

. Likewise, h e fails to show the requisite clear

- or
- obvious error in the court’s applying the eight

- level enhancement. See Guideli ne § 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

- P arra , 581 F.3d 227, 2 29

– 31 (5th Cir. 2009) (applying plain

- error review)

. **AFFIRMED**

. Case: 22-40732 Document: 00517015255 Page: 3 Date Filed: 12/28/2023