United States v. Franco

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
pr ison, 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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