United States Court of Appeals

for the Fifth Circuit

No. 20-60473

United States of America, 

Plaintiff—Appellee,

versus

Zaira Franco, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Southern District of Mississippi

USDC No. 3:17-CR-33-1

Before Barksdale, Elrod, and Ho, Circuit Judges.

Jennifer Walker Elrod, Circuit Judge:

Zaira Franco appeals the denial of her motion for reduction of 

sentence (commonly known as a motion for compassionate release), filed 

pursuant to the First Step Act. The question on appeal is whether Franco is 

excused from that statute’s textual requirement that she file a request with 

the Bureau of Prisons before filing her motion in federal court. We conclude 

that she is not so excused, and we affirm the district court’s denial of her

motion.

United States Court of Appeals

Fifth Circuit

FILED

September 3, 2020

Lyle W. Cayce

Clerk

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I.

In January 2018, Zaira Franco was sentenced to serve 37 months in 

prison, followed by three years of supervised release. Franco resides at the 

Residential Reentry Management Facility (colloquially known as a halfway 

house) in San Antonio, Texas, and has a scheduled release date of October 

22, 2020. 

In April 2020, pursuant to 18 U.S.C. § 3582(c)(1)(A), she filed a 

COVID-19 related motion for reduction of sentence in the district court. In 

her motion, Franco conceded that she had failed to comply with the statute’s 

procedural commands, but requested that due to the COVID-19 pandemic, 

the requirements “as set out in 18 U.S.C. § 3582(c)(1)(A) . . . be excused due 

to exigent circumstances.” The district court denied the motion without 

prejudice and noted that “Franco may re-file her motion once she achieves 

one of the two avenues for exhaustion under § 3582(c)(1)(A).”

II.

As a general rule, federal courts “may not modify a term of 

imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). Prior to the 

passage of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 

(2018), federal courts lacked the power to adjudicate motions for 

compassionate release. Now, however, a “court . . . may reduce the term of 

imprisonment” upon request by an inmate. 18 U.S.C. § 3582(c)(1)(A). In 

the words of the statute, courts may hear requests 

upon motion of the defendant after the defendant has fully 

exhausted all administrative rights to appeal a failure of the 

Bureau of Prisons to bring a motion on the defendant’s behalf 

or the lapse of 30 days from the receipt of such a request by the 

warden of the defendant’s facility, whichever is earlier . . . .

Id.

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The text therefore outlines two routes a defendant’s motion can 

follow to be properly before the court. Both routes begin with the defendant 

requesting that “the Bureau of Prisons” “bring a motion on the defendant’s 

behalf.” Id.

Franco concedes that she did not request that “the Bureau of 

Prisons” “bring a motion on [her] behalf.” See id. Thus, we must determine 

whether that requirement is jurisdictional (in which case we lack power to 

hear this case) and if not, whether the requirement is mandatory (in which 

case Franco cannot prevail on the merits of her motion). We conclude that 

the requirement is not jurisdictional, but that it is mandatory. We review both 

of these questions of statutory interpretation de novo. See United States v. 

Lauderdale County, 914 F.3d 960, 964 (5th Cir. 2019).

III.

The Supreme Court distinguishes “between jurisdictional 

prescriptions and nonjurisdictional claim-processing rules.” Fort Bend Cnty.

v. Davis, 139 S. Ct. 1843, 1849 (2019). The former limit the circumstances in 

which Article III courts may exercise judicial power; the latter “seek to 

promote the orderly progress of litigation by requiring that the parties take 

certain procedural steps at certain specified times.” Henderson v. Shinseki, 

562 U.S. 428, 435 (2011). Provisions are only considered jurisdictional when 

“the Legislature clearly states that [the] prescription counts as 

jurisdictional.” Fort Bend Cnty., 139 S. Ct. at 1850. 

Nothing in the text of this provision indicates that the procedural 

requirements are jurisdictional. Instead, the provision instructs a defendant 

to either “fully exhaust[] all administrative rights to appeal” the BOP’s 

failure to bring a motion or wait for thirty days after the warden’s receipt of 

the request before filing a motion in federal court. 18 U.S.C. § 3582(c)(1)(A). 

We agree with the recent, cogent analysis of this question by the Sixth 

Circuit: the “language neither ‘speak[s] in jurisdictional terms’ nor ‘refer[s] 

in any way to the jurisdiction’ of the courts.” United States v. Alam, 960 F.3d 

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831, 833 (6th Cir. 2020) (Sutton, J.) (alterations in original) (quoting Zipes v. 

Trans World Airlines, Inc., 455 U.S. 385, 394 (1982)). The statute’s

requirement that a defendant file a request with the BOP before filing a 

motion in federal court is a nonjurisdictional claim-processing rule. 

IV.

Next, we must determine whether that statutory requirement is 

mandatory. We join the other three circuits that have faced the question and

conclude that it is. See Alam, 960 F.3d at 832; United States v. Raia, 954 F.3d 

594, 597 (3d Cir. 2020); United States v. Springer, No. 20-5000, 2020 WL 

3989451, at *3 (10th Cir. July 15, 2020).

The First Step Act, in clear language, specifies what a defendant must 

do before she files a motion for compassionate release in federal court. 

Specifically a defendant must submit a request to “the Bureau of Prisons to 

bring a motion on the defendant’s behalf.” 18 U.S.C. § 3582(c)(1)(A). 

The statute’s language is mandatory. Congress has commanded that 

a “court may not modify a term of imprisonment” if a defendant has not filed 

a request with the BOP. See id. § 3582(c) (emphasis added). This rule 

“seek[s] to promote the orderly process of litigation by requiring that the 

parties take certain procedural steps at certain specified times.” Henderson, 

562 U.S. at 435. It is a paradigmatic mandatory claim-processing rule. And 

because the government properly raised the rule in the district court, this 

“court must enforce the rule.” Pierre-Paul v. Barr, 930 F.3d 684, 692 (5th 

Cir. 2019) (emphasis added), cert. denied, 206 L. Ed. 2d 854 (Apr. 27, 2020).

Franco’s arguments to the contrary are unavailing. First, she argues 

that the requirement cannot be mandatory because the statute permits two 

different routes a defendant may take before filing a motion in court. But 

both of those routes (filing a motion after the BOP’s denial or filing a motion

30 days after receipt by the warden) require the defendant to first file a 

request with the BOP. And Franco concedes she never filed such a request.

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Nor are we inclined to deviate from this clear text in pursuit of the 

statute’s broader “purpose” or “intent.” We need not dive “inside 

Congress’s mind” to determine the statutory intent here. Cf. John F. 

Manning, Inside Congress’s Mind, 115 Colum. L. Rev. 1911, 1919 (2015)

(noting that textualists, legal realists, modern pragmatists, and legal process

scholars share doubts about “an actual subjective congressional decision 

about the litigated issue”). Congress used clear language: all requests for 

compassionate release must be presented to the Bureau of Prisons before they 

are litigated in the federal courts. When the text is clear, that is “the end of 

the construction.” Hightower v. Tex. Hosp. Ass’n, 65 F.3d 443, 450 (5th Cir. 

1995). We need go no further.

Finally, Franco maintains that the statutory requirement does not 

apply to her because she resides in a halfway house. The statute refers to 

“receipt of such a request by the warden of the defendant’s facility.” 18 U.S.C. 

§ 3582(c)(1)(A) (emphasis added). Franco notes that she “is housed at a 

Residential Reentry Management Facility, which has no warden.” But this 

apparent problem has a simple solution. Bureau of Prisons regulations define 

the “warden” to include “the chief executive officer of . . . any federal penal 

or correctional institution or facility.” 28 C.F.R. § 500.1(a); cf. United States 

v. Campagna, 16 CR. 78-01 (LGS), 2020 WL 1489829, at *3 (S.D.N.Y. Mar. 

27, 2020) (holding that “the denial of Defendant’s request by the Residential 

Re-entry Manager suffices to exhaust his administrative rights”). Franco is 

free to file her request with the chief executive officer of her facility.

* * *

This opinion will, at the least, provide clarity about this important 

relief. Definite legal rules are knowable ex ante, evenhanded in application, 

and favor certainty and predictability. Cf. Lon Fuller, Morality of Law 39 

(1969) (identifying, inter alia, generality, public accessibility, clarity, and 

constancy as requirements of a legal system). In this case, the district judge 

denied Franco’s motion without prejudice, and allowed her to “re-file her 

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motion once she achieve[d] one of the two avenues for exhaustion under 

§ 3582(c)(1)(A).” Instead, Franco appealed, hoping for a favorable ruling. 

Going forward, no other defendants need face this uncertainty. Those who 

seek a motion for compassionate relief under the First Step Act must first file 

a request with the BOP. The judgment of the district court is AFFIRMED

and Zaira Franco remains free to file, in the first instance, a request with the 

Bureau of Prisons.

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