# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22

- 50938

**____________ United States of America,** 
Plaintiff

— Appellee **,**

versus **Rudy Naranjo,**
Defendant

— Appellant

**.**

**______________________________** Appeal from the United States District Court for the Western District of Texas USDC No. 5:05

- CR -134-1

**______________________________** Before **Southwick , Engelhardt**  **,** and **Wilson ,**  Circuit Judges

**. Leslie H. Southwick**  , Circuit Judge : Federal prisoner Rudy Naranjo is serving concurrent 360

- month sentences for multiple drug conspiracy offenses involving crack and powder cocaine , and a consecutive 120

- month sentence for using and possessing a semiautomatic weapon in furtherance of the drug crime . He moved under Section 404 of the First Step Act of 2018 seeking a sentence reduction, which the district court denied. Naranjo then filed a second Section 404 motion. The district court dismissed that motion for lack of jurisdiction under Section 404(c) and, alternatively, denied the motion on the merits. We hold there was jurisdiction but **AFFIRM** for other reasons

. United States Court of Appeals Fifth Circuit 

### FILED May 21, 2024 Lyle W. Cayce Clerk Case: 22-50938 Document: 90-1 Page: 1 Date Filed: 05/21/2024No. 22

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2 FACTUAL AND PROCEDURAL BACKGROUND In October 2006, a federal grand jury in the Western District of Texas indicted Naranjo and two other individuals on four counts of conspiring to and possessing with the intent to distribute crack and po wder cocaine in violation of 21 U.S.C. §§ 860(a), 846, 841(a)(1), 841(b)(1)(A) , and 18 U.S.C. § 2. Only Naranjo was indicted for knowingly using and possessing a semiautomatic weapon “in furtherance of a drug trafficking crime” in violation of 18 U.S.C. § 9 24 (c)(1)(B)(i). Following a trial, the jury found Naranjo guilty on all five counts.
The United States Probation Office prepared a Presentence Investigation Report (“PSR”) prior to Naranjo’s June 2007 sentencing hearing. The PSR determined that Naranjo ’s conduct involved 23.2 kilograms of powder cocaine, 728 grams of crack cocaine, and 38.3 kilograms of marijuan a . I t also attributed 360 kilograms of powder cocaine to the conspiracy between Naranjo and the other two individuals

. The PSR calculation con cluded these offenses resulted in a base offense level of 40. The PSR designated Naranjo as a career offender under U nited S tates S entencing G uidelines § 4B1.1 because he was previously convicted twice for unauthorized use of a vehicle and twice for armed robbery, qualifying Naranjo as having “ at least two prior felony convictions for crimes of violence .”
The PSR thus calculate d Naranjo’s G uideline s range as 360 months imprisonment for his four crack and pow d er cocaine offenses and 120 months imprison ment for his violation of 18 U.S.C. § 924(c). This resulted in a G uideline s range of 480 months to life . At Naranjo’s sentencing hearing, the district court found the PSR “accurate and correct” and imposed a sentence of 360 month s for the four cocaine ch arges to run concurrently and 120 month s for the Section 924(c) charge to run consecutively. Naranjo appealed Case: 22-50938 Document: 90-1 Page: 2 Date Filed: 05/21/2024No. 22

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3 both the judgment and conviction s . This court affirmed Naranjo’s conviction s , finding “ no error in the prosecution and trial of this case.” Uni ted States v. Naranjo , 309 F. App ’ x 859, 869 (5th Cir. 2009). A flurry of post

- conviction proceedings followed Naranjo’s direct appeal. From May 2010 to May 2018, Naranjo filed several 28 U.S.C. § 2255 motions challenging his sentence under the Fair Sentencing Act of 2010. Each motion was denied. In December 2019, Naranjo , acting pro s e , properly filed his first motion seeking relief solely under Section 404 of the First Step Act . In his motion, Naranjo argued he was eligible for a sentence reductio n because “he was convicted of a ‘covered offense’ before the effective date of” the Fair Sentencing Act. 1 Naranjo further asserted (1) the district court improperly evaluated his criminal history when it designated Naranjo as a career offender under U.S .S.G. § 4B1.1 and its 2007 amendments ; (2) the district court’s determination of drugs attributable to Naranjo was incorrect because it was not decided by a jury and was based on a “conspiracy

- wide” determination instead of a reasonably foreseeable determi nation ; and (3) his Section 924(c) conviction was illegal. In March 2020, the district court denied Naranjo’s first Section 404 motion, concluding that Congress enacted the First Step Act to make Section 2 of the Fair Sentencing Act “retroactive for [only] a particular group of defendants,” namely, those who committed crack cocaine offenses. See Dorsey v. United States , 567 U.S. 260, 268

– 69 (2012). Because Naranjo’s conviction involved both crack cocaine and powder cocaine offenses, he did

**_____________________**

1 Covered offenses under t he First Step Act include “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” First Step Act of 2018 , Pub. L. No. 115

- 391, § 404 (a) , 132 Stat. 5194 , 5222. Case: 22-50938 Document: 90-1 Page: 3 Date Filed: 05/21/2024No. 22

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4 not qualify as a member of the “particular group of defendants” eligible for relief under the Fair Sentencing Act. Thus, even though Naranjo’s crack cocaine convictions were covered offenses, “the statutory penalties for Naranjo’s powder cocaine offenses” had not change d under the F irst S tep Act, leaving his Guidelines range unchanged. The court also found Naranjo’s current sentence sufficient under the 18 U.S.C. § 3553(a) sentencing factors. Naranjo appealed that ruling . We affirmed the district court’s denial of Naranjo’s motion and held that Naranjo had “not shown the court failed to conduct a complete substantive review or otherwise abused its discretion.” United States v. Naranjo , 858 F. App’x 763, 764 (5th Cir. 20 21). We also determined Naranjo’s requested relief for his Section 924(c) offense was unavailable under Section 404. Id. at 765. Finally, we agreed that Naranjo’s sentence complied with the Section 3553(a) sentencing factors. Id. In May 2020 , while his appeal was still pending, Naranjo filed a Federal Rule of Civil Procedure 60(b) motion in district court challenging the denial of his Section 404 motion. Naranjo averred that the district court was “not permitted to assume [in Naranjo’s case] there woul d be no difference in [his] ultimate [sentence] and summarily dismiss evaluation and/or application of the [Fair Sentencing Act].” He recognized, though, that then

existing Fifth Circuit precedent “expressly precluded” recalculating his “Guidelines range as if he were being sentenced for the first time under present law.” See United States v. Hegwood , 934 F.3d 414, 418 (5th Cir. 2019), abrogated by Concepcion v. United States , 597 U.S. 481 (2022). Naranjo asserted he was instead entitled to “a re

- sentenc ing that includes a calculation of the appropriate guideline level ‘as if’ the Fair Sentencing Act’s revised crack cocaine law was applicable at the time of [ hi s ] original sentencing.” See i d

. Case: 22-50938 Document: 90-1 Page: 4 Date Filed: 05/21/2024No. 22

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5 The district court dismissed Naranjo’s Rule 60(b) motion in Ju ne 2020. The court concluded it lacked jurisdiction over Naranjo’s motion because he was “seek[ing] the [c]ourt’s involvement in matters that [were] on appeal.” The district court alternatively denied the motion on its merits, concluding Naranjo’s senten ce should not be reduced pursuant to the court’s review of the Section 3553 (a) sentencing factors. Neither in its denial of Naranjo’s first Section 404 motion n or its dismissal of his Rule 60(b) motion did the district court address Naranjo’s Hegwood rese ntencing argument , i.e., that he should be resentenced under an adjusted Guidelines calculation that considers the Fair Sentencing Act’s revised crack cocaine law. In July 2022, Naranjo filed his second pro se Section 404 motion. Naranjo cited a recent Su preme Court opinion, which held that a district
court can consider intervening changes in the law when exercising its discretion to reduce a sentence under the First Step Act. Concepcion , 597 U.S. at 500. In September 2022, t he district court denied this Section 404 motion for lack of jurisdiction and, alternatively, on the merits. The jurisdiction al barrier was that the court ha d already denied one Section 404 motion on the merits, thus precluding its review of a subsequent Section 404 motion

. In the alternative on the merits, the district court reasoned that Naranjo’s current sentence would still fall within any new G uideline s range even if he w ere not a career offender. Naranjo timely appealed.
DISCUSSION “We review a district court’s ruling on a motion to resentence under the [First Step Act] for abuse of discretion.” United States v. Stewart , 964 F.3d 433, 435 (5th Cir. 2020). Under an abuse of discretion standard, “the defendant must show the court mad e an error of law or based its decision on a ‘clearly erroneous assessment of the evidence.’” United States v. Abdul

Ali , 19 F.4th 835, 837 (5th Cir. 2021) (quoting United States v. Larry , 632 F.3d Case: 22-50938 Document: 90-1 Page: 5 Date Filed: 05/21/2024No. 22

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6 933, 936 (5th Cir. 2011)). Notably, “to the extent the c ourt’s determination turns on the meaning of a federal statute such as the [First Step Act], our review is de novo .” Stewart , 964 F.3d at 435 (citation omitted). In this appeal , Naranjo asserts the district court committed two separate errors in its Septe mber 2022 ruling

. First, h e contends the district
court erred when dismissing his second Section 404 motion for lack of jurisdiction

. Second, Naranjo alleges the district court should have reduced his sentence for his powder cocaine offense and should ha ve analyzed the “full slate” of his arguments, including the quantity of drugs attributed to him as a member of the conspiracy and his Section 924(c) conviction.
The district court held i t had no jurisdiction to consider Naranjo’s latest motion under the First Step Act, relying on its statutory language:
No court shall entertain a motion made under this section to reduce a sentence if the sentence was previously imposed or previously reduc ed in accordance with the amendments made by sections 2 and 3 of the Fair Sentencing Act of 2010 (Public Law 111

– 220; 124 Stat. 2372) or if a previous motion made under this section to reduce the sentence was, after the date of enactment of this Act, denie d after a complete review of the motion on the merits. Nothing in this section shall be construed to require a court to reduce any sentence pursuant to this section. First Step Act of 2018 , Pub. L. No. 115

- 391, § 404 (c) , 132 Stat. 5194 , 5222.
W e start wit h an issue of first impression for this court : I s Section 404(c) a jurisdictional or a claim

- processing rule ? The Supreme Court distinguishes between “jurisdictional prescriptions and nonjurisdictional claim

- processing rules.” Fort Bend Cnty. v. Davis , 13 9 S. Ct. 1843, 1849 (2019). “The former limit the circumstances in which Article III courts may exercise judicial power; the latter ‘seek to Case: 22-50938 Document: 90-1 Page: 6 Date Filed: 05/21/2024No. 22

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7 promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times.’” United States v. Franco , 973 F.3d 465, 467 (5th Cir. 2020) (quoting Henderson v. Shinseki , 562 U.S. 428, 435 (2011)). A statutory provision is jurisdictional only when “the Legislature clearly states that [the] prescription counts as j urisdictional.” Id. (alteration in original) (quoting Davis , 139 S. Ct. at 1850). If nothing within the text indicates the provision is jurisdictional, the presumption is that it is claim

- processing. Id. Our quotation of Section 404(c) reveals no clear language from Congress specifying it as a jurisdictional bar. Indeed, it does not address jurisdiction at all but describes the circumstances under which a second Section 404(b) motion for a sentence reduction cannot be heard by a court. First Step Act § 404(c). Without clear language indicating “Congress has exercised its prerogative to restrict the subject

- matter jurisdiction of federal district courts,” Arbaugh v. Y&H Corp. , 546 U.S. 500, 515 & n.11 (2006) , Section 404(c)’s limitation of the statute’s scope should be considered claim

processing. Two other circuits have held Section 404(c) to be a claim

- processing rule. See United States v. Hart , 983 F.3d 638 (3d Cir. 2020); United States v. Deruise , No. 22

- 12983, 2023 WL 3668929 (11th Cir. May 26, 2023). The Third Circuit had to decide whether a defendant was eligible for resentencing under the Fair Sentencing and First Step Acts when his sentence had already been reduced once under the Fair Senten cing Act. Hart , 983 F.3d at 640

– 41. The court found no clear statutory text that the provision was jurisdictional, which created a strong presumption in favor of its being a claim

- processing rule. Id. at 641. The court further explained that Section 40 4(c) “cuts off only one remedy,” which “does not destroy the court’s power to hear a case.” Id. at 641

– 42. It reasoned that “if a rule limits only a remedy, we will not treat it as jurisdictional without extremely clear evidence.” Id. at 642. Case: 22-50938 Document: 90-1 Page: 7 Date Filed: 05/21/2024No. 22

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8 Consequen tly, the Government’s effort to waive the rule “in the interest s of justice” was effective. Id. at 64 1, 64 3.
The Eleventh Circuit followed Hart ’s reasoning and decided that Section 404(c) was not jurisdictional and could be waived by the G overnment. See Deruise , 2023 WL 3668929 , at *3

– 4. To be clear, a claim

- processing rule can be mandatory even if it is not jurisdictional. That is, “[a] claim

- processing rule may be ‘mandatory’ in the sense that a court must enforce the rule if a party ‘properly raise[s] ’ it.” Davis , 139 S. Ct. at 1849 (alterations in original) (quoting Eberhart v. United States , 546 U.S. 12, 19 (2005) ). If not raised, a claim

- processing rule can be waived or forfeited. See Eberhart , 546 U.S. at 15. A jurisdictional provision
cannot. The language of Section 404(c) does command that no “court shall entertain a motion made under this section to reduce a sentence.” First Step Act § 404(c). T he Supreme Court , however, has classified “an array” of similar claim

- processing rules as mandatory yet nonjurisdictional. Davis , 139 S. Ct. at 1849

– 50 (collecting cases). We thus hold that Section 404(c) is a mandatory claim

- processing rule , not a jurisdictional bar as the district court assumed. Here, t he Government did not attempt to waive Section 404. Instead, it raised Section 404(c)’s limitation in both its opposition to Naranjo’s second Section 404 motion and its brief to us. The Government argued the district court denied Naranjo’s first Section 404 motion after it conducted a complete review on the merits, requiring it to deny Naranjo’s second Section 404 motion as barred under Section 404(c). The Government is indeed correct that, if Naranjo’s first Section 404 motion for a sentence reduction

w a s denied after a complete review of the merits , the district court could not entertain his second. First Step Act § 404(c). The district court did just that when it denied Naranjo’s first Section 404 motion. Thu s , we conclude that Case: 22-50938 Document: 90-1 Page: 8 Date Filed: 05/21/2024No. 22

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9 Section 404(c)’s limi tation on multiple motion s must be enforced to bar Naranjo’s second Section 404 motion.
Th ough the district court erred in dismissing Naranjo’s second Section 404 motion specifically for lack of jurisdiction , the court did not err in dismissing the motion. None of Naranjo ’s appellate arguments even address the possibility that the bar against a second motion under Section 404(c) might be mandatory

. **AFFIRM** ED. Case: 22-50938 Document: 90-1 Page: 9 Date Filed: 05/21/2024