NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 19-2528 ______ UNITED STATES OF AMERICA, v. JOSE MIGUEL BORBON a/k/a Jose-Borbon Vargas a/k/a Jose Borbon Vargas, Appellant ____________ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 1-19-cr-00004-001) District Judge: Robert B. Kugler ____________ Submitted under Third Circuit L.A.R. 34.1(a) January 17, 2020 Before: HARDIMAN, PORTER, and PHIPPS, Circuit Judges. (Filed: January 21, 2020) ____________ OPINION* ____________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PHIPPS, Circuit Judge. Jose Borbon appeals his 57-month prison sentence for one count of illegal re- entry. See 8 U.S.C. § 1326(a), (b)(2). Borbon pled guilty to that offense but raised several objections to receiving a sentence within the range recommended by the United States Sentencing Guidelines, which was 57-71 months. Before imposing the sentence, the District Court resolved those objections, including Borbon’s request for credit for time that he served in state custody for separate drug-trafficking offenses. That request was based on an application note in the Guidelines explaining that, in certain immigration contexts, a district court “may consider whether a departure is appropriate to reflect all or part of the time served in state custody.” U.S.S.G. § 2L1.2, Appl. Note 7 (2018). Citing that application note, Borbon argued that he should receive credit for his time in state custody because, although it could have done so earlier, the federal government did not prosecute him for illegal re-entry until after he completed his state sentence. The District Court discussed but did not specifically rule on Borbon’s request, one way or the other, before sentencing him to 57 months in prison. Borbon now appeals, arguing that in imposing the sentence, the District Court committed procedural errors and incorrectly denied his request for credit for time served. As a challenge to a final order and to a sentence, this Court has jurisdiction over Borbon’s appeal. See 28 U.S.C. § 1291; 18 U.S.C. § 3742(a). For the reasons set forth below, we will affirm. 2 I On appeal, Borbon attacks the procedural reasonableness of his sentence on two grounds. First, he argues that the District Court erred by believing that it had no discretion to reduce the sentence based on his time in state custody. Second, he contends that the District Court erred by failing to consider adequately the factors in 18 U.S.C. § 3553(a). Because Borbon did not raise those objections before the District Court, they are reviewed under the plain error standard. While there are several prerequisites to prevailing under plain error review, the first of those requires an error by the District Court. See Fed. R. Crim. P. 52(b); Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904-05 (2018); United States v. Flores-Mejia, 759 F.3d 253, 258 (3d Cir. 2014) (en banc). Neither of Borbon’s contentions clears that initial hurdle. Borbon’s first argument is premised upon one statement by the ...
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