United States v. Mario Cordova-Zarate , 699 F. App'x 420 ( 2017 )

Case: 17-40133 Document: 00514213267 Page: 1 Date Filed: 10/27/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-40133
FILED
October 27, 2017
Summary Calendar
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARIO ALBERTO CORDOVA-ZARATE,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:16-CR-787-1
Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
Defendant-Appellant Mario Alberto Cordova-Zarate appeals his 27-
month sentence of imprisonment for illegally reentering the United States
after deportation following a felony conviction. 8 U.S.C. § 1326(a), (b)(1). He
argues that the district court erred in recommending that he receive credit for
time he spent in state custody before his transfer to federal custody because
the recommendation does not have binding effect.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-40133 Document: 00514213267 Page: 2 Date Filed: 10/27/2017
No. 17-40133
Cordova-Zarate did not object when the district court made the
recommendation at his sentencing hearing. Accordingly, we review the issue
for plain error. United States v. Kirklin, 701 F.3d 177, 178 (5th Cir. 2012).
The Attorney General, through the Bureau of Prisons (BOP), determines
what credit, if any, will be awarded. 18 U.S.C. § 3585(b); see Leal v. Tombone,
341 F.3d 427, 428 (5th Cir. 2003). Because a non-binding recommendation
could serve the salutary purpose of alerting the BOP to time the defendant
spent in state custody that might apply to his federal sentence, Cordova-Zarate
fails to show that the recommendation amounted to clear or obvious error. See
Puckett v. United States, 556 U.S. 129, 135 (2009).
AFFIRMED.
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