USA v. Mario Cordova-Zarate, No. 17-40133 (5th Cir. 2017)

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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 Summary Calendar FILED October 27, 2017 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 27month 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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