Take the Fifth

Designated for publication

• Civelli v. Mulacek, 26-20183, appeal from S.D. Tex.
  • per curiam (Higginson, Willett, Oldham) (no oral argument), Oldham, J., concurring in judgment; judgment execution, appeal bond
  • Denying motion to apply Texas-law cap to supersedeas bond amount to stay a judgment pending appeal.
  • A jury returned a verdict against members of the Mulacek family, and the district court entered a judgment exceeding $210 million. The Mulaceks moved to stay that judgment under Federal Rule of Civil Procedure 62(b) by posting only a $25 million supersedeas bond, invoking a Texas statute (Tex. Civ. Prac. & Rem. Code § 52.006(b)(2)) that caps supersedeas bonds at $25 million. The district court denied the request, holding that the Texas cap does not apply in federal court.
  • At issue on the motion was (1) whether Federal Rule of Civil Procedure 69(a)(1), which requires that the “procedure on execution” in federal court accord with state procedure, incorporates the Texas supersedeas-bond cap; and (2) whether the Texas cap is substantive under Erie Railroad Co. v. Tompkins and therefore binding on federal courts sitting in diversity.
  • The Fifth Circuit denied the Mulaceks’ motion, agreeing with the district court that the Texas $25 million supersedeas-bond cap does not apply in federal court.
  • Rule 69(a)(1): The court held that Rule 69 governs how a judgment is executed—not when or whether it may be executed. Context favors the narrower reading: Rule 69(a)(2) authorizes discovery in aid of execution, and Rule 69(b) addresses satisfaction of judgments against revenue officers—all mechanics of collection. In contrast, Rule 62 addresses a different question: when enforcement may proceed. The court further reasoned that a broader reading would render Rule 62(f) superfluous, because Rule 62(f) separately entitles a judgment debtor to the same stay of execution a state court would give, but only if the judgment is a lien on the debtor’s property under state law—a condition that would be “not merely redundant but inexplicable” if Rule 69(a)(1) already incorporated all state stay rules.
  • Erie Doctrine: On outcome-determinativeness, the court acknowledged the Mulaceks’ argument that the absence of the cap shifts settlement leverage toward judgment creditors, but held that “virtually every procedural rule—pleading, discovery, evidence, you name it—affects settlement dynamics. That does not make them substantive.” On whether the cap is “bound up” with state-created rights, the court found that the interests the cap protects—enforcement and appellate access—”are litigation interests” that “do not ‘channel[] behavior outside the courtroom,'” and in federal litigation both interests are governed by federal law. On the twin aims of Erie, the court concluded that mere preference for one forum’s bond rules over another’s “does not itself amount to the kind of forum shopping Erie addresses.” Ultimately, the cap “governs the security required to stay enforcement of a judgment pending appeal—a matter that ‘concerns merely the manner and the means by which a right to recover . . . is enforced.’ That is procedural—not substantive.”
  • Judge Oldham concurred in the judgment only, writing that he would deny the motion under Federal Rule of Civil Procedure 62, which “‘allow[s] the federal courts to set the amount of the [bond] in their discretion,'” citing Burlington Northern Railroad Co. v. Woods, 480 U.S. 1, 7 n.5 (1987). He stated: “We have no need to consider Erie or Texas law.”

Unpublished decisions

• Reese v. Wells Fargo Bank, N.A., 25-11021, appeal from N.D. Tex.
  • per curiam (Stewart, Richman, Duncan) (no oral argument), foreclosure, res judicata
  • Affirming dismissal of claims against lender arising from foreclosure.
  • Wendell and Karen Reese appealed the dismissal of their civil action against Wells Fargo Bank, Breckenridge Property Fund 2016 LLC, and others, challenging the district court’s finding that their claims were barred by res judicata. The Reeses argued that the newly added defendants were not in privity with the defendants in the prior suit (Reese II), that Taylor v. Sturgell, 553 U.S. 880 (2008), should have applied, that the two suits did not share the same nucleus of operative fact, that the district court should have evaluated the plausibility of their claims, and that it erred in dismissing without leave to amend or a hearing.
  • The court found the four new defendants had substantive legal relationships with the original defendants, satisfying privity even under Taylor‘s recognized exceptions. Both lawsuits concerned the same loan, foreclosure, and post-foreclosure relief, establishing the same nucleus of operative fact. Because res judicata applied, the district court was not required to evaluate the plausibility of the claims. The Reeses’ failure to seek leave to amend or request a hearing in the district court doomed those arguments on appeal.

• United States v. Torres, 25-11341, appeal from N.D. Tex.
  • per curiam (Higginbotham, Smith, Ho) (no oral argument), criminal
  • Granting Anders motion to withdraw, and dismissing appeal.

• United States v. Fletcher, 25-30426, appeal from E.D. La.
  • per curiam (Higginbotham, Jones, Oldham) (no oral argument), criminal, sentencing
  • Affirming 180-month sentence on conviction of felon-in-possession.
  • Wardell Fletcher, sentenced to 180 months’ imprisonment after pleading guilty to possession of a firearm after a felony conviction, challenged the procedural reasonableness of his sentence, arguing the district court erred in three ways in assessing criminal history points.
  • Fletcher failed to show that any alleged error in calculating prison time on prior sentences was clear or obvious under plain-error review. The Government demonstrated that any remaining errors were harmless because they did not affect the guidelines range, and the district court’s upward variance was independently founded on its consideration of Fletcher’s criminal history and dangerousness under the § 3553(a) factors.

• United States v. York, 25-40573, appeal from S.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, compassionate release
  • Affirming denial of motion for compassionate release.
  • Broderick Wade York, serving consecutive life terms under 18 U.S.C. § 924(c)(1) stemming from a botched bank robbery and an attempt to murder a witness, appealed the denial of his motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A). He argued the district court erred in concluding it lacked authority to consider the First Step Act’s non-retroactive elimination of § 924(c) sentence-stacking as an “extraordinary and compelling reason” for a sentence reduction.
  • The Supreme Court’s recent decision in Rutherford v. United States, 146 S. Ct. 1320 (2026), held that a nonretroactive change to § 924(c)—alone or combined with other factors—cannot make a prisoner eligible for compassionate release, and that ruling was dispositive.

• United States v. Sanchez-Sanchez, 26-10077, appeal from N.D. Tex.
  • per curiam (Willett, Duncan, Engelhardt) (no oral argument), criminal, sentencing
  • Affirming 57-month sentence on conviction of drug crime.
  • Erasto Sanchez-Sanchez pleaded guilty to possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime. He challenged both the procedural and substantive reasonableness of his 57-month sentence on the drug count, arguing the district court improperly deferred to a new prosecutorial policy and failed to consider a downward variance to avoid unwarranted sentence disparities under § 3553(a)(6).
  • The record showed the district court understood and rejected the disparity-based arguments, recognized the advisory nature of the Guidelines, and made an individualized assessment under § 3553(a). The court found no procedural error and held that Sanchez-Sanchez failed to rebut the presumption of reasonableness afforded to his within-guidelines sentence.

• United States v. Monserrate, 26-10163, c/w 26-10164, appeal from N.D. Tex.
  • per curiam (Jones, Ho, Wilson) (no oral argument), criminal, supervised release
  • Affirming revocation of supervised release.
  • Danielle Monserrate appealed the revocation of two terms of supervised release and the imposition of concurrent prison terms. Citing Rico v. United States, 607 U.S. 609 (2026), she argued the district court exceeded its jurisdiction by considering conduct that occurred after her supervised release terms had expired.
  • The court held the district court did not exceed its jurisdiction because it also relied on Monserrate’s pre-expiration conduct and a pre-expiration arrest warrant, satisfying 18 U.S.C. § 3583(i).

• Estrada Cristobal v. Blanche, 26-60135, petition for review of BIA order
  • per curiam (Jones, Ho, Wilson) (no oral argument), immigration
  • Dismissing in part and denying in part Mexican citizen’s petition for review of BIA affirmation of denial of cancelation of removal.
  • Lilia Estrada Cristobal, a native and citizen of Mexico, petitioned for review of the BIA’s summary affirmance of an immigration judge’s denial of cancellation of removal as a matter of discretion under 8 U.S.C. § 1229b. She argued the agency abused its discretion and that her due process rights were violated because she never received a complete hearing transcript and the IJ was biased.
  • Under 8 U.S.C. § 1252(a)(2)(B)(i), the court lacks jurisdiction to review the discretionary denial of cancellation of removal, and § 1252(a)(2)(D) did not save the claim because cancellation is purely discretionary relief. Although the due process claims were reviewable under § 1252(a)(2)(D), the court held that the failure to receive purely discretionary relief does not amount to a deprivation of a liberty interest, and therefore the due process claims were denied on the merits.