United States Court of Appeals

for 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

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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 powder 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. § 924(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 marijuana. It also attributed 360 kilograms of powder cocaine to the 

conspiracy between Naranjo and the other two individuals. The PSR

calculation concluded these offenses resulted in a base offense level of 40. 

The PSR designated Naranjo as a career offender under United States 

Sentencing Guidelines § 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 calculated Naranjo’s Guidelines range as 360 months 

imprisonment for hisfour crack and powder cocaine offenses and 120 months 

imprisonment for his violation of 18 U.S.C. § 924(c). This resulted in a

Guidelines 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 months for the four cocaine charges to run concurrently and 120

monthsfor the Section 924(c) charge to run consecutively. Naranjo appealed 

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both the judgment and convictions. This court affirmed Naranjo’s 

convictions, finding “no error in the prosecution and trial of this case.” 

United 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 se, 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 reduction 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 determination; 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 the 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.

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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 changed under the First Step

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. 2021). 

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 would be no difference 

in [his] ultimate [sentence] and summarily dismiss evaluation and/or 

application of the [Fair Sentencing Act].” He recognized, though, that thenexisting 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-sentencing 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 [his] original 

sentencing.” See id.

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The district court dismissed Naranjo’s Rule 60(b) motion in June 

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 sentence 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 nor its dismissal of his Rule 60(b) motion 

did the district court address Naranjo’s Hegwood resentencing 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 Supreme 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, the district court denied this Section 404 

motion for lack of jurisdiction and, alternatively, on the merits. The 

jurisdictional barrier was that the court had 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 Guidelines range 

even if he were 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 made an error of law or based its decision on 

a ‘clearly erroneous assessment of the evidence.’” United States v. AbdulAli, 19 F.4th 835, 837 (5th Cir. 2021) (quoting United States v. Larry, 632 F.3d 

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933, 936 (5th Cir. 2011)). Notably, “to the extent the court’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 September 2022 ruling. First, he 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 have 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 it 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 reduced 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, denied 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.

We start with an issue of first impression for this court: Is 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, 139 S. Ct. 1843, 1849 (2019). “The former limit the circumstances 

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

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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 jurisdictional.” 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’sscope should be considered claimprocessing.

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 Sentencing 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 404(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. 

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Consequently, the Government’s effort to waive the rule “in the interests of 

justice” was effective. Id. at 641, 643.

The Eleventh Circuit followed Hart’s reasoning and decided that 

Section 404(c) was not jurisdictional and could be waived by the 

Government. 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). The 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, the 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 

was 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. Thus, we conclude that 

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Section 404(c)’s limitation on multiple motions must be enforced to bar

Naranjo’s second Section 404 motion.

Though 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.

AFFIRMED.

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