NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 1 9

- 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 , 20 20 Before: HARDIMAN , PORTER , and PHIPPS , Circuit Judges
.

(Filed: January 21, 2020 )

____________ OPINIO N *

____________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

P HIPPS , 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
. B efore 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 a n 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 t he time served in state custody .” U.S.S.G. § 2L1.2, App l
. 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 g overnment did not prosecute him for illegal re

- entry until after he completed his state sentence
. T he District Court discussed but did not specifically rule on Borbon’s request , one way or the other , be fore 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 hi s request for credit for time served. As a challenge to a final order and to a s entence, 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.3 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 fact ors in 18 U.S.C. § 3553(a)
. Because Borbon did not raise those objection s 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 requi res 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 clear s that initial hurdle
. Borbon ’s first argument is premise d upon one statement by the District Court at the sentencing hearing. Th ere, the District Court remarked that “Congress has set forth the law [and] has provided serious penalties for violation of thi s law and the law that I need to enforce and must enforce.” App. a t 88 (22:9

- 12)
. From that expression , Borbon contends that the District Court mistakenly understood that it had no discretion to reduce Borbon’s sentence to account for time that he served in state custody for the separate drug trafficking offense s . But that statement arose during a discussion of the § 3553(a) factors, specifically the need for the sentence to deter the public from committing this crime. And a t other po ints in the proceeding, the District Court also made clear its
awareness that the Guidelines are non - binding in the Court’s sentencing decision and4

specifically with respect to the credit for time in state custody
. See, e.g. , App. at 73 (the District Cour t seeking argument from Borbon’s counsel on the request ed credit). For these reasons, the challenged statement by the District Court does not demonstrate an
erroneous understanding of the court’s authority and does not constitute an error. In his second attack on the procedural reasonableness of the sentence , Borbon contends that the District Court erred by ignoring A pplication N ote 7, see U.S.S.G. § 2L1.2, App l
. Note 7, in its § 3553(a) analysis
. But t he record demonstrates that through
a back

- and

- forth discussion with Borbon’s counsel, the District Court did consider A pplication N ote 7 and the possibility of a reduced sentence due to Borbon’s time in state custody
. See App. at 73

- 76 (sentencing transcript)
. Afterwards, the District Court explained its rationale for the sentence , and nothing further is required
. See Rita v. United States , 551 U.S. 338, 356

- 57 (2007) ; United States v. Friedman , 658 F.3d 342, 359 (3d Cir. 2011)
. II Borbon challenges the substantive reaso nableness of his sentence on similar grounds
. He asserts that the District Court erred by fail ing to credit him for the time that he served in state custody. But appellate review of the substantive reasonableness of a sentence is very deferential, and pr ocedurally sound sentences are affirmed “unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” United States v. Tomko , 562 F.3d 558, 568 (3d Cir. 2009 ) (en banc)
.5

Borbon ’s challenge cannot meet that standard. H is sentence is within the Guidelines range

– at the very bottom of the recommended range
– and that qualifies for
a presumption of reasonableness. See Rita , 551 U.S. at 346

- 47 (concluding that a court of appeals may apply a presumption of reasonableness to a within

- Guidelines sentence); United States v. Handerhan , 739 F.3d 114, 119

- 20 (3d Cir. 2014) (“If the sentence is within the applicable Guidelines range, we may presu me that the sentence is reasonable.”). Nor is it unreasonable to refuse to reduce a criminal defendant’s sentence for time served for a separate offense
. Accordingly , the District Court did not abuse its discretion in sentencing Borbon. See Tomko , 562 F.3d at 567 (reviewing the substantive reasonableness of a sentence under an abuse of discretion standard); Handerhan , 739 F.3d at 124 (same). I II For the foregoing re asons, we will affirm Borbon ’ s judgment of sentence.