     Case: 13-40163       Document: 00512380615         Page: 1     Date Filed: 09/20/2013




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

                                                                            FILED
                                                                        September 20, 2013
                                     No. 13-40163
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,
v.

ELIGIO CARBAJAL-MENDOZA,

                                                  Defendant - Appellant.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 1:12-CR-783-1


Before KING, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
       Eligio Carbajal-Mendoza pleaded guilty, pursuant to a plea agreement, to
one count of illegal reentry following a previous deportation. Per his agreement,
Carbajal-Mendoza “waive[d] the right to appeal the sentence imposed or the
manner in which it was determined on any grounds set forth in 18 U.S.C.
§ 3742.” The district court sentenced Carbajal-Mendoza to 18 months of




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 13-40163     Document: 00512380615      Page: 2   Date Filed: 09/20/2013



                                  No. 13-40163

imprisonment and three years of supervised release. Carbajal-Mendoza timely
appealed.
      The Government’s motion for summary affirmance is DENIED. Its
alternative motion for an extension of time within which to file a brief is
DENIED as unnecessary as the arguments are adequately addressed in the
Government’s motion and Carbajal-Mendoza’s brief.
      Carbajal-Mendoza acknowledges that he freely and voluntarily waived the
right to appeal his sentence via his plea agreement. He argues, however, that
the appeal waiver should not be enforced because it would result in a
miscarriage of justice since the district court overreached its authority in
determining that he would not receive credit for any time spent in state custody.
The Government contends that Carbajal-Mendoza points to no authority from
this court providing for a miscarriage-of-justice exception to an appeal waiver.
The Government further contends enforcement of the waiver would not result
in a miscarriage of justice since the district court did not have the authority to
credit Carbajal-Mendoza’s federal sentence with the time he spent in state
custody.
      Because Carbajal-Mendoza’s challenge to his sentence lacks merit, we
pretermit the issue of whether his appeal waiver bars the instant appeal. See
United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). As the Government
correctly argues, the district court did not have the authority to credit Carbajal-
Mendoza’s sentence for the time spent in state custody; credit awards under 18
U.S.C. § 3585 are to be made by the Attorney General through the Bureau of
Prisons (BOP). See United States v. Wilson, 503 U.S. 329, 333-36 (1992). Thus,
the district court’s determination that Carbajal-Mendoza is not entitled to
receive any credit for the time he spent in state custody is not binding on the
BOP. As the Government concedes, Carbajal-Mendoza may request and, if



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                               No. 13-40163

appropriate, receive from the BOP any credit to which he is entitled.
Accordingly, the judgment of the district court is AFFIRMED.




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