USA v. Rene Molina-Cuellar

Filing

UNPUBLISHED OPINION FILED. [17-40141 Affirmed] Judge: FPB, Judge: LHS, Judge: GJC. Mandate issue date is 12/06/2017 for Appellant Rene Molina-Cuellar [17-40141]

Case: 17-40141

Document: 00514236356

Page: 1

Date Filed: 11/14/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 17-40141
Summary Calendar

FILED
November 14, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RENE MOLINA-CUELLAR,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-942-1

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Rene Molina-Cuellar appeals his sentence for illegal reentry after
removal. For the first time on appeal, Molina-Cuellar argues that the district
court clearly erred in assessing two criminal history points for his conviction
of fraudulent use or possession of identifying information and two more points
for his conviction of making a false statement on a driver’s license application.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
*

Case: 17-40141

Document: 00514236356

Page: 2

Date Filed: 11/14/2017

No. 17-40141
According to Molina-Cuellar, the criminal conduct from those convictions was
part of the illegal reentry offense.
As Molina-Cuellar acknowledges, we review the unpreserved challenge
under the plain error standard. See Puckett v. United States, 556 U.S. 129, 135
(2009). Even if the district court erred, any such error was not plain. See
United States v. Valles, 484 F.3d 745, 759 (5th Cir. 2007) (“An error is ‘plain’ if
it is clear under current law.”). We so held in United States v. Vargas-Garcia,
434 F.3d 345, 349-50 (5th Cir. 2005), rejecting arguments substantially similar
to those advanced by Molina-Cuellar. There, as here, because the state crime
“could be seen as embodying just such conduct severable by time, place, and
harmed societal interest,” the district court did not plainly err by concluding
that the criminal conduct was separate from the illegal reentry offense. See
id. at 350.
AFFIRMED.

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