source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Jorge IBANEZ-BELTRAN, Petitioner v. Loretta LYNCH, U. S. Attorney General, Respondent
    No. 15-60183
    United States Court of Appeals, Fifth Circuit.
    Filed January 11, 2017

      Imran B. Mirza, Esq., Houston, TX, for Petitioner
    Eric Warren Marsteller, Esq., Senior Litigation Counsel, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Matthew Allan Spurlock, U.S. Department of Justice, Civil Division/OIL, Washington, DC, for Respondent
    Before JONES, BARKSDALE, and COSTA, Circuit Judges.
   PER CURIAM:

The Government charged Jorge Ibanez-Beltran, a citizen of Mexico, with being removable from this country, due in part to his Arizona conviction for attempted transportation of marijuana for sale under Arizona Revised Statute Section 13-3405(A)(4). Ibanez-Beltran concedes that this offense makes him removable, but denies that it also qualifies as an aggravated felony that makes him ineligible for cancellation of removal. He argues that the Arizona statute is neither a categorical match to a qualifying federal drug trafficking offense nor divisible. We must decide whether section 13-3405(A)(4) is divisible, and, if so, whether the modified categorical approach confirms that Ibanez-Beltran was convicted of an aggravated felony.

Ibanez-Beltran was placed in removal proceedings after his conviction under Arizona Revised Statute Section 13-3405(A)(4). The statute states that a “person shall not knowingly ... [transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana.” A.R.S. § 13-3405(A)(4). His indictment charged all of these provisions, but his plea document and judgment listed only “attempted transportation of marijuana for sale.”

Ibanez-Beltran' conceded he was removable for violating a state law relating to a controlled substance offense, 8 U.S.C. § 1227(a)(2)(B)®, but he denied being ineligible for relief on the grounds that his marijuana conviction qualified as an aggravated felony, 8 U.S.C. § 1101(a)(43)(B). The Immigration Judge disagreed, concluding that Ibanez-Beltran was ineligible for relief because his Arizona conviction was an aggravated felony. 8 U.S.C. § 1229b(a)(3). The Board of Immigration Appeals affirmed.

An aggravated felony is defined by a long list of offenses that includes “illicit trafficking in a controlled substance, including a drug trafficking crime.” 8 U.S.C. § 1101(a)(43)(B). An offense is a drug trafficking crime if it is punishable as a felony under the federal Controlled Substances Act (CSA). 18 U.S.C. § 924(c)(2); 21 U.S.C. § 801 et seq. An offense is a felony under the CSA if it is punishable by imprisonment of more than one year. 21 U.S.C. §§ 802(13), (44). The government argues that Ibanez-Beltran was convicted of “attempted transportation of marijuana for sale” under Arizona law. The federal counterpart for attempted transportation of marijuana is punishable by imprisonment of more than one year. 21 U.S.C. §§ 841(b)(1)(D), 846. This means that if Ibanez-Beltran was convicted of the state offense of “attempted transportation of marijuana for sale,” he was convicted of an aggravated felony.

Ibanez-Beltran counters that because the Arizona statute of conviction includes solicitation offenses, namely “offer to transport,” the statute is not a categorical match to the federal drug trafficking offense. He further argues that his statute is not divisible. That would mean Ibanez-Beltran was not convicted of an aggravated felony and the Board of Immigration Appeals erred in deeming him ineligible to request cancellation of removal.

When determining whether a prior offense qualifies as an aggravated felony, we first apply the categorical approach, asking whether the state criminal offense lines up with the corresponding aggravated felony, which here is attempted drug trafficking. Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 1684, 185 L.Ed.2d 727 (2013). That determination is made by comparing the elements of the state offense with the elements of the federal drug trafficking offense. Id.; Taylor v. United States, 495 U.S. 575, 600-01, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That comparison is straightforward when a statute sets out a single set of elements to define a single crime.

Here the comparison is not so simple because Ibanez-Beltran’s statute of conviction lists multiple actus rei. The statutory provision states that a person shall not knowingly: 1) transport [marijuana] for sale; 2) import [marijuana] into this state; 3) offer to transport [marijuana] for sale; 4) offer to import [marijuana] into this state; 5) sell [marijuana]; 6) transfer [marijuana]; 7) offer to sell [marijuana]; or 8) offer to transfer [marijuana]. A.R.S. § 13-3405(A)(4) (numbering added). The government conceded that the statute as a whole is not a categorical match to the federal offense of drug trafficking, because it lists solicitation offenses that are not covered in the federal definition. United States v. Ibarra-Luna, 628 F.3d 712, 716 (5th Cir. 2010) (“The government concedes that a mere offer to sell, without evidence of possession or transfer, is tantamount to solicitation and is not proscribed by the [CSA].”). Our decision thus comes down to whether the modified categorical approach can be used to narrow Ibanez-Beltran’s conviction to attempted .transportation of marijuana for sale, which would be a felony under the federal drug laws.

The modified categorical approach allows courts to examine “a limited class of documents” from the record to determine whether the defendant was convicted of an offense that matches the corresponding federal offense. Descamps v. United States, — U.S.-, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Courts may only use the modified approach, though, when the statute of conviction is divisible. A statute is divisible when it defines multiple crimes by listing elements in the alternative instead of listing various factual means of committing a single crime. Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2248-49,195 L.Ed.2d 604 (2016). Our task when determining whether a statute is divisible, then, “is to determine whether ‘listed items’ in a statute ‘are elements or means.’” United States v. Hinkle, 832 F.3d 569, 575 (5th Cir. 2016) (quoting Mathis, 136 S.Ct. at 2256). This ultimately turns on whether a jury would have to agree on whether the defendant completed that action. Id. (“When a jury is not required to agree on the way that a particular requirement of an offense is met, the way of satisfying that requirement is a means of committing an offense, not an element of the offense.”). When state court decisions definitively answer whether jury unanimity is required, courts “need only follow what [they say].” Mathis, 136 S.Ct. at 2256.

Arizona case law does not provide that definitive answer here. Some state law decisions indicate that section 13-3405(A)(4) sets out multiple alternative offenses. For example, State v. Fierro lays out elements for the “offense of transportation of marijuana for sale.” 220 Ariz. 337, 206 P.3d 786, 789 (App. 2008). And State v. Chabolla-Hinojosa notes that the defendant was convicted of both importation of marijuana and transportation of marijuana. 192 Ariz. 360, 965 P.2d 94, 95 (App. 1998); see also State v. Alvarado, 178 Ariz. 539, 875 P.2d 198, 200 (App. 1994) (noting that defendant was convicted of “offering to sell marijuana”); State v, Hans, 2008 WL 4261034, at *4 (Ariz. Ct. App. 2008); but see State v. Medina, 2016 WL 489838, at *1 (Ariz. Ct. App. 2016) (affirming defendant’s conviction for “sale or transportation of marijuana”). These courts’ treatment of section 13-3405(A)(4) suggests that the statute is divisible.

But some Arizona decisions interpreting similar statutes point in the other direction. Arizona courts have assumed that the legislature does not intend to create more offenses than those listed in the heading of a statute. State v. Brown, 217 Ariz. 617, 177 P.3d 878, 881 (App. 2008) (citing State v. Dixon, 127 Ariz. 554, 622 P.2d 501, 508 (App. 1980)). Instead, courts in Arizona assume that if the legislature intended to create separate offenses, it would have enacted separate subparts as it did in other parts of section 13-3405(A). See State v. Manzanedo, 210 Ariz. 292, 110 P.3d 1026, 1028 (App. 2005). The heading of section 13-3405 reads: “Possession, use, production, sale or transportation of marijuana.” Although this heading implies that sale and transportation are separate offenses, it cuts against finding that the other terms, for example “offer to transport,” are themselves separate offenses. Instead, they could be alternative means to commit either sale of marijuana or transportation of marijuana.

And an Arizona court has held that solicitation terms in a similarly worded statute were alternative means, not elements, to commit the offense. In Brown, the court examined an almost identically worded statute that prohibited the knowing “[t]ransport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.” A.R.S. § 13-3408(A)(7); see Brown, 177 P.3d at 881-82. The court focused on whether “sell, transfer or offer to sell or transfer” were separate offenses or alternative means to commit the same offense. Brown, 177 P.3d at 881-82 (quoting A.R.S. § 13-3408(A)(7)). It noted that section 13-3408’s heading mentioned “ ‘sale’ ... of narcotic drugs” but did not reference transfer, offer to sell, or offer to transfer. Id. at 881. Assuming that the legislature did not intend to create more offenses than those listed in the heading, the court held that the relevant phrase referred to different ways of committing the same offense. Id. at 882. In other words, the legislature did not view the solicitation terms as creating separate offenses.

So Arizona state law does not give us a clear answer on the construction of section 13-3405(A)(4). But Mathis provides us with another tool when state judicial decisions do not furnish an answer; we may look to the record of the prior conviction for “the sole and limited purpose of determining whether the listed items are elements of the offense.” Mathis, 136 S.Ct. at 2256-57. Ibanez-Beltran’s plea agreement and judgment treats the terms in section 13-3405(A)(4) as elements of alternative offenses. Although the indictment simply listed all of the conduct contained in the statute, Ibanez-Beltran actually pleaded guilty to “attempted transportation of marijuana for sale.” When the relevant documents use one alternative term to the exclusion of all others, that indicates that the terms within the statute are individual elements. Id. at 2257.

Reinforcing the plea agreement’s treatment of transport for sale as a separate offense is Arizona’s pattern jury charge. See id. at 2257 (mentioning jury instructions as a source to determine divisibility); see also United States v. Martinez-Vidana, 825 F.3d 272, 274 (5th Cir. 2016) (considering a pattern jury instruction to determine the divisibility of a statute). There are separate pattern instructions for transport for sale and offer to transport for sale. Compare Rev. Ariz. Jury Instructions (Criminal) 34.0541 (3d ed.), with Rev. Ariz. Jury Instructions (Criminal) 34.0542 (3d ed.).

The plea agreement, judgment, and instructions are enough, without settled state law to the contrary, to hold that section 13-3405(A)(4) is divisible. Because the statute is divisible, the modified categorical approach narrows Ibanez-Beltran’s offense to “attempted transportation of marijuana for sale.” As discussed, that offense also constitutes a felony under the federal drug laws, making it a drug trafficking crime, which is an aggravated felony under section 1101(a)(43)(B).

The petition for review is DENIED.

      . The Supreme Court of Arizona has recognized that the separate subsections of this drug statute create different offenses. State v. Cota, 191 Ariz. 380, 382, 956 P.2d 507, 509 (1998) (“[T]he relevant statutes distinguish between the separate crimes of ‘transfer,’ on the one hand, and 'possession,' on the other.” (citing A.R.S. § 13-3405(A)(1); id. § 13-3405(A)(4)). It has not directly addressed the question we confront: whether the various terms listed within a particular subsection (in Ibanez-Beltran's case, subsection (A)(4)) also create separate offenses.

      . Section 13—3408(A)(7) is identical to section 13-3405(A)(4), except section 13-3408(A)(7) targets narcotic drugs rather than marijuana.


author: W. EUGENE DAVIS, Circuit Judge:

text:
    IN RE: DEEPWATER HORIZON Lake Eugenie Land & Development, Incorporated; Bon Secour Fisheries, Incorporated; Fort Morgan Realty, Incorporated; LFBP 1, L.L.C., Doing Business as GW Fins; Panama City Beach Dolphin Tours & More, L.L.C.; Zekes Charter Fleet, L.L.C.; William Sellers; Kathleen Irwin; Ronald Lundy; Corliss Gallo; John Tesvich; Michael Guidry, on Behalf of Themselves and All Others Similarly Situated; Henry Hutto; Brad Friloux; Jerry J. Kee, Plaintiffs-Appellants v. BP Exploration & Production, Incorporated; BP America Production Company; BP, P.L.C., Defendants-Appellees
    No. 15-30377
    United States Court of Appeals, Fifth Circuit.
    Filed May 22, 2017

      Stephen Jay Herman, Esq., Soren E. Gisleson, Esq.,' Herman Herman & Katz, L.L.C., New Orleans, LA, James Parker-son Roy, Domengeaux Wright Roy Edwards & Colomb, L.L.C., Lafayette, LA, Samuel Issacharoff, New York University, School of Law, New York, NY, for Plaintiffs-Appellants.
    Amir Cameron Tayrani, Miguel Angel Estrada, Theodore Olson, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, George Howard Brown, Esq., Gibson, Dunn & Crutcher, L.L.P., Palo Alto, CA, for Defendants-Appellees.
    Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
   W. EUGENE DAVIS, Circuit Judge:

This appeal addresses the computation of economic losses arising out of the BP oil spill and based on the BP Settlement Agreement. In an attempt to adhere to our decision in In re Deepwater Horizon (“Deepwater Horizon I”), 732 F.3d 326 (5th Cir. 2013), the district court has approved a policy adopted by the Claims Administrator known as Policy 495. Policy 495 consists of five methodologies pursuant to which the Claims Administrator is to calculate claimant compensation: one Annual Variable Margin Methodology (“AVMM”) and four Industry-Specific Methodologies (“ISMs”). Class Counsel challenges all five. Because the AVMM is consistent with the text of the Settlement Agreement, but the four ISMs are not, we AFFIRM as to the AVMM, REVERSE as to the ISMs, and REMAND for proceedings consistent with this opinion.

I.

The Settlement Agreement seeks to reimburse claimants for economic losses related to the BP oil spill. Losses that bear a temporal relationship to the spill are said to be related to the spill. Somewhat simplified, and more than somewhat condensed, the claims process works as follows: The Claims Administrator compares a claimant’s financial performance prior to and after the spill. If the former is greater than the latter, BP is liable for the difference. Causation is, in all other respects, presumed'.

The Settlement Agreement grants each claimant the right to choose his or her Compensation Period, so long as it consists of three or more consecutive months between May and December 2010. The Compensation Period constitutes the post-spill period, which is then subtracted from the same pre-spill period, in order to deduce the damages owed.

We first addressed damages in the context of this litigation in Deepwater Horizon I. The question in Deepwater Horizon I was whether the Settlement Agreement requires the Claims Administrator to match all unmatched profit and loss statements. Before discussing our holding in Deepwater Horizon I, an explanation of the terms “matched” and “unmatched” is in order.

In a matched profit and loss statement, costs follow revenue, which is registered when generated or received. The two appear as part of the same month, and provide a clear picture of net income.

In an unmatched profit and loss statement, costs do not follow revenue. Revenue is registered when generated or received, and costs are registered at least one month earlier when incurred. Unmatched profit and loss statements can, pursuant to the Settlement Agreement, make it appear as if a claimant has suffered damages that he, in fact, did not suffer. Here’s how.

Assume that Claimant A is a used car dealer, who chose a Compensation Period of August to October 2010. Assume that during the Compensation Period, Claimant A sold two cars. Assume that both of those cars were sold in September. Assume that the sale generated a combined $50,000 in revenue. And assume that Claimant A paid $40,000 for those two cars in June.

If the costs follow the revenue, ie., if the claimant’s profit and loss statements are matched, the Claims Administrator should conclude that Claimant A generated $10,000 in profits during the Compensation Period. His profit and loss statements, from August to October 2010, should list $50,000 in revenue and $40,000 in costs. The fact that the costs were incurred outside of the Compensation Period in June does not matter, because the costs follow the revenue, which was both generated and received during the Compensation Period in September. Claimant A generated $10,000 in net profits from August to October 2010.

Now assume that Claimant A’s financial performance in August to October 2009 mirrored that of August to October 2010. But assume that Claimant A submitted his 2009 profit and loss statements unmatched. If the costs do not follow the revenue, the $40,000 that Claimant A incurred in June will not be considered, because June falls outside of the Compensation Period. Claimant A will thus appear to have generated $50,000 in net profits from August to October 2009, and $10,000 in net profits from August to October 2010. And after subtracting the latter from the former, Claimant A will be entitled to 40,000 in damages related to the spill.

In Deepwater Horizon I, we sought to determine whether the Settlement Agreement supports this result, or whether the Claims Administrator should be required to match all unmatched profit and loss statements. We noted that

In interpreting a settlement, surely some weight has to be given to what damages recoverable in civil litigation actually are. If clear words in a settlement require the use of randomly associated numbers for calculating damages, even if there is little likelihood that, after subtracting one of those numbers from the other, the remainder will in fact show anything relevant to damages, then so be it. We do not perceive such clarity here.

Finding the text of the Settlement Agreement ambiguous, we remanded to the district court with instructions to review relevant extrinsic evidence to ensure that the Settlement Agreement was being implemented in a manner consistent with intent of the parties at the time of the Settlement Agreement’s ratification.

On remand, the district court held that the parties did not discuss the issue of “matching” prior to signing the Settlement Agreement, but “did discuss and were in agreement that similarly situated claimants must be treated alike.” In order to treat similarly situated claimants alike, the district court held that the Settlement Agreement should be interpreted to mandate the matching of all unmatched profit and loss statements, and ordered the Claims Administrator to craft a policy to that end.

The resultant policy is Policy 495. Policy 495 consists of five methodologies, and effectively divides claimants into two categories: those engaged in construction, education, agriculture, and professional services are subject to ISMs, and those engaged in everything else are subject to an AVMM. Class Counsel objects to all five methodologies. We review the AVMM separately, and the four ISMs together.

II.

A.

The AVMM requires the Claims Administrator to match all unmatched profit and loss statements. This means that prior to calculating damages, the Claims Administrator must ensure that costs are registered in the same month as corresponding revenue, regardless of when those costs were incurred. In Deepwater Horizon I, we held that the Settlement Agreement is ambiguous as to matching. Where a contractual provision “is ambiguous, such that its construction turns on a consideration of extrinsic evidence, ... we review the district court’s interpretation for clear error.”

Class Counsel has not presented evidence sufficient for us to' find that the district court’s approval of the AVMM constituted clear error, and we now hold that it did not. The Settlement Agreement is a maritime contract, pursuant to which all ambiguities are to be resolved “consistent with the intent of the parties.” The parties intended for all “similarly situated claimants [to] be treated alike.” Matching unmatched profit and loss statements promotes this goal. Error is clear when it leaves us with a “definite and firm conviction that a mistake has been committed.” Because we hold no such conviction, the district court’s approval of the AVMM is affirmed.

B.

The ISMs also require matching, but go a significant step farther, requiring the Claims Administrator to move, smooth, or otherwise reallocate revenue for claimants engaged in construction, education, agriculture, and professional services. Claimants in these four industries tend to be paid in lump sums, which are capable of generating damages awards that do not comport with tort principles. Thus, BP argues that the ISMs are necessary in order to ensure that the Claims Administrator can “process claims in accordance with economic reality,” quoting our opinion in Deepwater Horizon I.

An example is, once again, helpful. Assume that Claimant A is a farmer, who chose a Compensation Period of August to October 2010. Assume that in 2009, Claimant A sold all of his crops on October 31st, generating $200,000 in net profits. And assume that in 2010, Claimant A sold all of his crops on November 1st, generating $200,000 in net profits again.

Claimant A did not suffer economic losses pursuant to tort principles. His net profits, after all, did not decline from 2009 to 2010.

Claimant A did, however, suffer economic losses pursuant to the Settlement Agreement. The Settlement Agreement precludes the Claims Administrator from considering the 2010 transaction, because it took place in November, outside of the Compensation Period. Thus, BP owes Claimant A $200,000. $200,000 in net profits in 2009 minus $0 in net profits in 2010 equals $200,000 in damages for Claimant A.

BP argues that the parties did not intend for Claimant A to collect $200,000. And the relevant ISM would preclude this result. The relevant ISM would spread revenue across the crop season, ensuring that damages are awarded to those who have suffered real losses. This may well be a fairer alternative. But it cannot be implemented, because it is inconsistent with the plain text of the Settlement Agreement.

“The interpretation of an unambiguous contractual provision] is a question of law, subject to de novo review.” “De novo [review warrants] here, as it ordinarily does, a fresh, independent determination of the matter at stake.”

The Settlement Agreement grants each claimant the right to choose his or her Compensation Period, consisting of three or more consecutive months between May and December 2010. If the Claims Administrator is permitted to remove revenue from the Compensation Period, and spread it throughout the non-compensation months, the claimant’s choice no longer matters. June is the same as December, and November is the same as July.

This is not the agreement that the parties entered into. And we decline to rewrite the Settlement Agreement under the guise of contractual interpretation. When we said, in Deepwater Horizon I, that the Claims Administrator should “process claims in accordance with economic reality,” we assumed that doing so would comport with the text of the Settlement Agreement. That assumption has proven to be wrong in light of the moving, smoothing, and otherwise reallocation of revenue inherent in the ISMs.

The Settlement Agreement grants claimants the right to choose their own Compensation Period. Because the ISMs infringe upon that right, the district court’s approval of the ISMs was in error and is reversed.

III.

The district court’s approval of the ISMs was in error because the ISMs require the Claims Administrator to move, smooth, or otherwise reallocate revenue in violation of the Settlement Agreement. However, the ISMs, as stated, also require the Claims Administrator to match all unmatched profit and loss statements.

Having the Claims Administrator match all unmatched profit and loss statements helps ensure that all similarly situated claimants are treated alike, and is consistent with the text of the Settlement Agreement. Thus, we hold that all claimants— including those engaged in construction, agriculture, education, and professional services—shall, on remand, be subject to the AVMM.

IV.

For the reasons set out above, we AFFIRM as to the AVMM, REVERSE as to the ISMs, and REMAND for further proceedings consistent with this opinion.

      . We have jurisdiction to decide this appeal pursuant to the collateral order doctrine. See Deepwater Horizon I, 732 F.3d at 332 n.3.

      . Financial performance in the pre-spill period will, subject to the claimant’s choice, be restricted to 2009; 2008 and 2009; or 2007, 2008, and 2009.

      . 732 F.3d at 339.

      . See Alford v. Kuhlman Elec. Corp., 716 F.3d 909, 912 (5th Cir. 2013).

      . Holmes Motors, Inc. v. BP Expl. & Prod., Inc., 829 F.3d 313, 315 (5th Cir. 2016); see also Guidry v. Halliburton Geophysical Servs., Inc., 976 F.2d 938, 940 (5th Cir. 1992) ("A settlement agreement is a contract.”).

      . See Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 31, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).

      . United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

      . 732 F.3d at 339.

      . See Luv N’ Care, Ltd. v. Groupo Rimar, 844 F.3d 442, 447 (5th Cir. 2016) ("Contractual intent is determined by the words of the contract.”).

      . Alford, 716 F.3d at 912.

      . Doe v. United States, 821 F.2d 694, 697-98 (D.C. Cir. 1987) (en banc) (internal quotations omitted); see also Goodman v. United States, 518 F.2d 505, 509 (5th Cir. 1975) ("The phrase 'de novo’ means 'the court should make an independent determination of the issues.' ").


author: EDITH H. JONES, Circuit Judge:

text:
    Brandon COKER; Michael Golden, Plaintiffs-Appellants v. Julian WHITTINGTON; Charles Owens, Defendants-Appellees
    No. 16-30679
    United States Court of Appeals, Fifth Circuit.
    Filed May 23, 2017

      Nelson Welch Cameron, Shreveport, LA, for Plaintiffs-Appellants.
    Edwin H. Byrd, III, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Defendants-Appellees.
    Before JONES and OWEN, Circuit Judges, and ENGELHARDT, District Judge.

       Chief District Judge of the Eastern District of Louisiana, sitting by designation.

   EDITH H. JONES, Circuit Judge:

The appellants are two former sheriffs deputies in Bossier Parish, Louisiana, who chose not to obey a directive from the Sheriff and were removed from their offices. Their disobedience arose from their decisions to move in with each other’s wife and family before getting divorced from their current wives. Whether these decisions, which violated the Sheriffs Code of Conduct, infringed on appellants’ constitutional rights, and whether the Code’s policies conform to the Constitution were decided against them. We AFFIRM.

The material facts are undisputed. When Chief Deputy Sheriff Owens learned in late October 2014 that Coker and Golden had each taken up residence in the other’s house, exchanging spouses without having divorced their current wives, they were placed on administrative leave for violating the Sheriffs Code of Conduct. The Code includes the following standards:

Conduct yourselves at all times in such a manner as to reflect the high standards of the Bossier Sheriffs Office ... [and] Do not engage in any illegal, immoral, or indecent conduct, nor engage in any legitimate act which, when performed in view of the public, would reflect unfavorably] upon the Bossier Sheriffs Office.

They had also violated a provision that required them to inform their direct supervisors within 24 hours of a change of address, a measure designed to ensure then-availability at all times in case of an emergency.

Matters moved swiftly. Coker and Golden were informed that each must cease living with a woman not his spouse. If the deputies refused to do so, they were told, then as of November 24 they would be considered to have terminated employment voluntarily. The deadline passed, their living situations did not change, and they filed suit shortly thereafter.

Defendants in the lawsuit were Sheriff Whittington and Deputy Sheriff Owens, in their personal and official capacities, and the Bossier Parish Sheriffs Office. Following evidentiary jousting, the district court ruled in favor of the defendants. The court held first that the Code policies invoked against Coker and Golden are supported by the rational grounds of preserving a cohesive police force and upholding the public trust and reputation of the Sheriffs Department. Case law, including decisions of this circuit, has uniformly approved terminations of law enforcement officers for sexually inappropriate conduct. There are no decisions to the contrary suggesting that the deputies, as public employees of law enforcement agencies, have constitutional rights to “associate” with each other’s spouses before formal divorce. That Lawrence v. Texas, 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003), expanded substantive constitutional rights relating to personal sexual choices does not mandate a change in policies relevant to public employment, where it was more recently reaffirmed that public employees necessarily shed some of their constitutional rights as a legitimate exchange for the privilege of their positions. Garcetti v. Ceballos, 547 U.S. 410, 426, 126 S.Ct. 1951, 1962, 164 L.Ed.2d 689 (2006). The district court also concluded that the Code of Conduct is not unconstitutionally vague as written or enforced. It does not offend the fair notice requirements of due process, especially with regard to discipline that was not itself unconstitutional. Shawgo, 701 F.2d at 477-79.

We find no reversible error of fact or law in the district court’s decision. Sexual decisions between consenting adults take on a different color when the adults are law enforcement officers. Their enforcement duties include, for instance, crimes of human trafficking and spousal abuse that place them in sensitive positions with members of the public. Their involvement in relations that openly and “notoriously” violate the legally sanctioned relationships of marriage and family is likely to besmirch the reputation of the Sheriffs Department and hinder its ability to maintain public credibility. Moreover, these officers’ extramarital relationships, even if consensual and loving at the outset, have great potential to create internal dissension within the force. Finally, it is not hard to envision how the existence of Coker’s and Golden’s cohabitation with each other’s wives prior to divorce and remarriage might be adversely used in litigation concerning the deputies’ official conduct.

The Supreme Court’s recent decision in Obergefell v. Hodges does not alter applicable law. — U.S. -, 135 S.Ct. 2584, 2598, 192 L.Ed.2d 609 (2015). Whatever ramifications Obergefell may have for sexual relations beyond the approval of same-sex marriage are unstated at best, but Obergefell is expressly premised on the unique and special bond created by the formal marital relationship and children of that relationship. Id. at 2594-95. Obergefell does not create “rights” based on relationships that mock marriage, and no court has so held.

The district court’s judgment is AFFIRMED.

      . The alleged fact dispute does not exist, nor would it be material if it did. While Coker and Golden maintain they were ordered to "cease all contact” with the other man’s spouse in a meeting with Owens, the district court found that counsel for the sheriff's department subsequently made clear in two letters that not "having contact with each other” was not a condition for employment, and that the sole condition necessary for Coker and Golden to return to work was to cease cohabitation with a married woman not his wife. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). Regardless whether "no contact” was a condition, there is no dispute Coker and Golden failed to meet the condition of changing their living arrangements.

      . See Shumpert v. City of Fulton, 77 F.3d 474 (5th Cir. 1995) (when relationships outside of marriage occur "between government employees, any right to such relations that might normally exist may be properly tempered by a state's heightened interest in regulating the conduct of its employees.”); Shawgo v. Spradlin, 701 F.2d 470, 483 (5th Cir. 1983) ("we .can ascertain a rational connection between the exigencies of Department discipline and forbidding members of a quasi-military unit, especially those different in rank, to share an apartment or to cohabit”); Mercure v. Van Buren Twp., 81 F.Supp.2d 814, 827 (E.D. Mich. 2000) (holding that discharge of a police officer for the “choice to enter into a relationship with the wife of his superior officer on the force” was rational). See also Hughes v. City of N. Olmsted, 93 F.3d 238, 242 (6th Cir. 1996) (police department investigation of an officer “because of claims that he had committed acts of sexual misconduct while on duty, an accusation which certainly related to whether [the officer] was conducting himself appropriately as a police officer,” was not unreasonable); Fugate v. Phoenix Civil Serv. Bd., 791 F.2d 736, 741 (9th Cir. 1986) (holding that the right of privacy does not extend "to sexual behavior that is not purely private, that compromises a police officer’s performance, and that threatens to undermine a police department's internal morale and community reputation”); Seegmiller v. LaVerkin City, 528 F.3d 762, 772 (10th Cir. 2008) (holding that "governmental actions restricting police officers' sexual conduct” of an extramarital affair were reasonable).

      . Of course, even if such rights existed and were violated by the Sheriff and Chief Deputy, they would have qualified immunity in their individual capacities because no "clearly established law” prevented warning Coker and Golden that the consequences of their personal relationships would be dismissal from the force. Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011).


text:
    James COLEMAN, Plaintiff-Appellant, v. LINCOLN PARISH DETENTION CENTER; Anna Rawson; Jim Tuten; R. Johnson; Cecil Smith; Deputy Warden Yelverton; Chaplain Denton; Jim Fordham; Lieutenant Otwell; Deputy A. Qualls Defendants-Appellees.
    No. 16-30109
    United States Court of Appeals, Fifth Circuit.
    Filed May 24, 2017

      Nelson Welch Cameron, Shreveport, LA, for Plaintiffs-Appellants.
    Edwin H. Byrd, III, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Defendants-Appellees.
    Before JOLLY, SMITH, and GRAVES, Circuit Judges.
   PER CURIAM:

James Coleman, Louisiana prisoner # 214322, appeals the dismissal of his 42 U.S.C. § 1983 complaint, which was filed in forma pauperis (“IFP”), as frivolous and for failure to state a claim. “When a district court dismisses a complaint both as frivolous and as failing to state a claim under § 1915(e)(2)(B)(i) & (ii), we review the dismissal de novo.”

This court affords pro se pleadings liberal construction. But even for pro se plaintiffs, such as Coleman, “conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice” to state a claim for relief.

By the time Coleman filed his original complaint, he had been transferred from the Lincoln Parish Detention Center (“LPDC”) to the Jefferson Parish Detention Center. That transfer mooted his claims for declaratory and injunctive relief under the Religious Land Use and Institutionalized Persons Act (“RLUI-PA”), and the possibility of his transfer back to the LPDC is too speculative to warrant relief. In addition, RLUIPA does not authorize a private cause of action for compensatory or punitive damages against the appellees in their individual or official capacities.

As for Coleman’s claim that his right to exercise his religion freely under the First Amendment was violated because he was not allowed to attend Jumu’ah prayer services, he has failed to allege any details regarding the circumstances of the denial of Jumu’ah prayer services (e.g., the regulation or policy) that would allow a court to evaluate his claim besides the bare allegation that he was not able to attend. Thus, the district court did not err in dismissing that claim.

Coleman’s claims regarding the denial of medical care, negligent or deliberately indifferent infliction of injury, interference with his mail/denial of access to the courts, denial of equal protection, and retaliation were either not briefed at all or not adequately briefed. Thus, they are deemed abandoned.

Finally, Coleman never filed a formal motion requesting leave to file his proposed third amended complaint, and his “proposed order” accompanying that complaint did not qualify as such a motion because it offered no arguments as to why good cause authorized the filing of the complaint. The proposed third amended complaint thus had no legal effect. As a result, the following persons, though named in the proposed third amended complaint and in the caption of this appeal, are not parties to this lawsuit: (1) Deputy Warden Yelverton, (2) Chaplain Denton; (3) Jim Fordham; (4) Lieutenant Otwell; (5) Deputy A. Qualls; and (6) Jefferson Parish Detention Center.

Accordingly, the judgment is AFFIRMED. Coleman’s motion for a proposed settlement is DENIED.

The dismissal of the complaint counts as a strike under 28 U.S.C. § 1915(g). Coleman has at least three other strikes. As a result, he is BARRED from proceeding IFP in any civil action or appeal filed while he is incarcerated or detained in any facility unless he is under imminent danger of serious physical injury.

      . See 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1).

      . Samford v. Dretke, 562 F.3d 674, 678 (5th Cir. 2009).

      . Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

      . Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (internal quotation marks and citations omitted).

      . See Cooper v. Sheriff, Lubbock Cty., 929 F.2d 1078, 1084 (5th Cir. 1991).

      . See Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001).

      . Sossamon v. Lone Star State of Tex., 560 F.3d 316, 329-31 (5th Cir. 2009).

      . See O’Lone v. Estate of Shabazz, 482 U.S. 342, 351-52, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987).

      . See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993) (stating that pro se appellants must brief arguments to preserve them); Brinkmann v. Dallas Cty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987) (holding that an appellant's failure to address the merits of a district court’s decision or to identify any error in its legal analysis was “the same as if he had not appealed that judgment”).

        .See Thomas v. Chevron, 832 F.3d 586, 590-91 (5th Cir. 2016) (explaining that a motion for leave to amend must set forth good cause); United States ex rel. Mathews v. HealthSouth Corp., 332 F.3d 293, 296 (5th Cir. 2003) (holding that failure to obtain leave to file an amended complaint when required “results in an amended complaint['s] having no legal effect”); United States v. Jenkins, 780 F.2d 518, 520 (5th Cir. 1986) (stating that even pro se litigants must comply with relevant procedural rules).

      . See Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir. 1996).

      . (1) Coleman v. Stalder, No. 5:96-cv-916 (W.D. La. Mar. 31, 1997) (dismissing the § 1983 complaint as frivolous); (2) Coleman v. Stalder, No. 5:95-cv-1380 (W.D. La. June 4, 1996) (dismissing the § 1983 complaint as frivolous); and (3) Coleman v. McMahen, No. 5:92-cv-97 (W.D. La. Sept. 24, 1992) (dismissing the § 1983 complaint for failure to state a claim). See Adepegba, 103 F.3d at 386 (holding that civil actions that were dismissed before enactment of the Prison Litigation Reform Act may count as strikes).

        .See § 1915(g).


author: JERRY E. SMITH, Circuit Judge:

text:
    BHTT ENTERTAINMENT, INCORPORATED, Plaintiff-Appellee, v. BRICKHOUSE CAFÉ & LOUNGE, L.L.C.; Brickhouse Restaurant and Bar, L.L.C; Jonah Investments, L.L.C., Defendants-Appellants.
    No. 16-10687
    United States Court of Appeals, Fifth Circuit.
    FILED May 24, 2017

      James Patrick Sullivan, Richard John Groos, John Bradford Thompson, King & Spalding, L.L.P., Austin, TX, for Plaintiff-Appellee.
    Charles A. Caldwell, II, Law Offices of Charles A. Caldwell, P.L.L.C., Dallas, TX, for Defendants-Appellants.
    Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge.

       District Judge of the Western District of Texas, sitting by designation.

   JERRY E. SMITH, Circuit Judge:

Brickhouse Café & Lounge, LLC, Brickhouse Restaurant and Bar, LLC, and Jonah Investments, LLC (collectively, “Brickhouse”), appeal a default judgment. BHTT Entertainment, Incorporated (“BHTT”), challenges this court’s jurisdiction and contends that, in the event we do have appellate jurisdiction, we should affirm the default. We conclude that we do have jurisdiction and that the district court was correct to enter default judgment.

I.

This case began as a garden-variety trademark dispute. BHTT owns the trademarks to Brick House Tavern + Tap and Brick House Subs (collectively, “the BHTT Marks”). Brickhouse operates two restaurants in the Dallas area—one in Arlington, one in Desoto—promoted at various times as The Brickhouse Lounge, Brickhouse Café & Lounge, and Brickhouse Grill & Bar (collectively, “the Brickhouse Marks”). BHTT concluded that Brickhouse’s usage of the Brickhouse Marks infringed on the BHTT Marks, so it sued Brickhouse Café & Lounge LLC (and only that specific LLC), alleging trademark infringement, in August 2015.

After an entry of default against Brickhouse Café & Lounge, LLC, BHTT discovered that the other two defendants also had managerial roles with regard to the Brickhouse Lounge. BHTT amended its complaint to add them as defendants and attempted to serve its complaint on Charles Bailey, the registered agent for each component of Brickhouse. Bailey proved elusive; his listed address was an open field beside Interstate 20 in Grand Prairie, Texas, and attempts to contact him at other businesses and residences associated with him met with failure. Faced with Bailey’s elusiveness, BHTT successfully moved for substituted service under Federal Rule of Civil Procedure 4(e)(1) and Texas Rule of Civil Procedure 106(b)(2), whereupon BHTT served Brickhouse in the manner the district court had prescribed.

Brickhouse did not respond. BHTT moved for an entry of default, the clerk entered it, BHTT moved for a default judgment, and the district court entered a default judgment in April 2016. Only then did Brickhouse deign to appear; it did not contest the default judgment in district court but instead appealed.

Brickhouse’s initial brief in this court was due August 1, 2016, but it failed to meet both that deadline and an extended deadline granted after a motion for extension of time. Faced with that dilatory conduct, the clerk of this court entered an order dismissing Brickhouse’s appeal for want of prosecution pursuant to Fifth Circuit Rule 42.3. That dismissal returned the mandate to the district court. Brickhouse’s counsel moved to reinstate the appeal; the clerk initially denied that motion but granted it upon reconsideration and reopened the case. The order the clerk issued reopening the case, however, did not state explicitly that it was recalling the mandate from the district court. Briefing in this case has continued without any major problems since that time.

BHTT avers that the clerk’s order reopening the appeal did not suffice to recall the mandate and that the failure to recall the mandate divests us of appellate jurisdiction. In the alternative, BHTT contends that Brickhouse’s failure to contest the default judgment first in the district court means that all its issues in the court of appeals are waived, based on' our well-known practice of generally not considering arguments not first made before the district court. And, finally, BHTT contends that the district court was correct in its judgment of default regardless. Brick-house does not respond to the first two arguments raised by BHTT; it confines its appeal to challenges to service of process and answers to BHTT’s trademark claims on the merits.

II.

BHTT urges that this court never recalled the mandate that issued when this case was initially dismissed for want of prosecution and that the failure to recall the mandate is fatal to appellate jurisdiction. The list of cases in which this court states unequivocally that the district court re-assumes jurisdiction once the mandate issues is long. Equally numerous are the cases in which this circuit has debated whether to recall the mandate as a means of once again having jurisdiction over a given case. We have no difficulty in concluding that the mandate is the jurisdic-tionally significant document here and that recall of the mandate is necessary for this court to regain jurisdiction over an appeal dismissed for want of prosecution.

BHTT presents two theories why the clerk could not have recalled the mandate. First, it points out that the clerk’s order reinstating this appeal merely stated that the “[c]ase is reopened”; BHTT suggests that that terse statement did not suffice to recall the mandate. Second, BHTT contends that, even in the event the clerk’s pronouncement purported to recall the mandate, the clerk lacked the power to do so under the Fifth Circuit’s rules, and so any supposed recall was ineffective.

We dispense with the second argument first. The circuit’s rules leave us with the firm conviction that the clerk can recall a mandate under the circumstances presented here. Fifth Circuit Rule 27.1.6 gives the clerk the authority to “reinstate appeals dismissed by the clerk”; this is the rule under which Brickhouse moved to reinstate its appeal. No one contests that the mandate issues immediately upon the dismissal of an appeal by the clerk, and it would make little sense to give the clerk the authority to reinstate appeals he dismissed but to render any such reinstatement jurisdictionally infirm from its inception.

BHTT counters that Rule 27.2.7 explicitly states that only a judge is empowered to recall the mandate, as distinguished from the various motions that a clerk may rule on listed in Rule 27.1. This is correct, in some sense, though BHTT omits relevant context; Rule 27.2.7 permits a single judge to “stay the issuance of mandates or ... recall same pending certiorari.” It is silent on the power to recall a mandate where certiorari does not loom. Moreover, the internal operating procedures (“IOPs”) to Rule 27 state that “[t]he clerk or a single judge, as appropriate, decides a motion for stay or recall of mandate pending action on a petition for writ of certiorari....” Given the conflict between Rule 27.2.7 and its IOPs, as well as their limitation to situations in which certiorari is a factor, the clerk’s power to recall a mandate is coterminous with his power to reinstate an appeal under Rule 27.1.

Did he do so here? True, the order reopening this case did not explicitly recall the mandate, and Brickhouse’s motion also called for reopening the case instead of recalling the mandate. But to hold that such a minor change in wording deprives us of appellate jurisdiction would be to privilege form too much over function. A motion to recall the mandate and a motion to reopen the case have the same effect; they both ask this court to resurrect a matter it had finally disposed of. Thus, we conclude that the clerk had the power to recall the mandate here, that its order reopening the cáse did do so, and that we have appellate jurisdiction.

III.

BHTT maintains that Brickhouse has waived its insufficient-service-of-process argument by failing to raise it first in the district court. In BHTT’s view, after the default judgment was entered Brickhouse should have moved to set it aside under Federal Rule of Civil Procedure 60(b)’s provisions for relief from a final judgment, then appealed from a denial of that order if unsuccessful. To permit Brickhouse to appeal directly from the default judgment, BHTT posits, would be to countermand this court’s long-held rule that arguments not brought in the district court are waived and would force three-judge appellate panels to decide questions better decided by one-judge district courts with factfinding powers.

There is a circuit split on this issue. But, given the weakness of Brick-house’s arguments for vacating the default judgment, choosing sides fully and finally is best left for another day. We assume arguendo that Brickhouse can challenge the default judgment without first bringing a Rule 60(b) motion in the district court, and we turn to consideration of that challenge.

IV.

Brickhouse maintains that the default judgment must be set aside because service of process was invalid. “This court reviews a district court’s decision on entry of a default judgment for abuse of discretion.” Cambridge Toxicology Grp., Inc. v. Exnicios, 495 F.3d 169, 179 (5th Cir. 2007). The validity or invalidity of service of a defendant in a federal district court is governed by federal law, and the federal law of service is provided by Federal Rule of Civil Procedure 4. Because service was effected under Rule 4(e)(1), which permits service by “following state law in courts of general jurisdiction in the state where the district court is located or service is made,” we look to Texas law to determine whether service of process on Brickhouse was proper. See, e.g., Harper Macleod Solicitors v. Keaty & Keaty, 260 F.3d 389, 398 (5th Cir. 2001). And under Texas law, BHTT must prove that Brickhouse (1) was amenable to service and (2) was served in a manner in keeping with Texas’s service rules.

Although Brickhouse has not challenged its amenability to service, its briefing raises three arguments as to why service was improper under Texas law. First, it claims that “each of the sworn affidavits of service state [sic] that each defendant was served on March 12, 2016 at 3:35 pm, by the same process-server, at three different addresses, which is physically impossible.” Second, it posits that Section 5.251(1)(B) of the Texas Business Organizations Code requires that the Secretary of State be served if a corporation’s registered agent cannot be located, but the Secretary of State was not served here. Finally, Brick-house states without elaboration that “each of the affidavits fails to properly identify the address where process was served and/or fails to correctly indicate the time at which process was served, which violates the requirements of Tex. R. Civ. P. 107.”

To Brickhouse’s first contention— under Texas Rule of Civil Procedure 106(a), service is normally to be effected by in-person delivery or certified mail on a corporation’s designated agent. BHTT repeatedly tried to effect service in that way, but all of those attempts were unsuccessful because, as detailed above, Briekhouse’s registered agent, Charles Bailey, could not be found at any of the addresses associated with him. Because of that, BHTT elected to request the district court to permit substituted service under Rule 106(b)(2), which permits a court to authorize service “in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit.” The district court granted that request, stating that BHTT could serve Brickhouse by leaving the summons and amended complaint with “anyone over sixteen years of age during regular business hours at Brickhouse Café & Lounge at 2525 East Arkansas Lane, Arlington, Texas 76010.”

In other words, the district court directed BHTT to serve all three defendants at once, by leaving the summons and complaint with one person in one location. And the process-server stated in his affidavits that he served the defendants in the manner prescribed by the district judge. Contrary to Brickhouse’s suggestion, those affidavits do not assert that the server was in three different places at the same time; they merely list the respective addresses of the various Brickhouse defendants as identifying information and do not suggest that service was actually effected at the listed addresses. The process-server served all three Brickhouse defendants at one time and in one place, per the district court’s instructions. Brickhouse’s theory suggesting the opposite has no merit.

So too for its next argument. Brickhouse avers that the procedure in Section 5.251(1)(B)—namely, serving the Secretary of State if the registered agent for a corporate entity cannot be found—represents the only acceptable means of serving Brickhouse. Again, this notion is frivolous; Section 5.256—part of the very same sub-chapter—explains that “[t]his chapter does not preclude other means of service of process ... on a domestic or foreign entity as provided by other law.” Rule 106(b)(2) is, of course, other law, and the procedure laid out in Section 5.251(1)(B) does not preclude it.

Brickhouse’s final position is that the affidavits of service do not properly identify the time and location at which service was effected, rendering service invalid. Cited as authority is Texas Rule of Civil Procedure 107, but it has no requirement that location be noted on the return of service; it says only that the return of service “shall state when the citation was served and the manner of service and be signed by the officer officially or by the authorized person,” without mentioning location. And, contrary to Brickhouse’s complaints, each affidavit does in fact state the time at which it was served. So the affidavits at issue here meet Rule 107’s requirements. Moreover, Rule 107 states that “[wjhere [service] is executed by an alternative method as authorized by Rule 106, proof of service shall be made in the manner ordered by the court.” As discussed above, service in this case was under Rule 106, so Rule 107 is irrelevant to the merits of service here.

Post-briefing, Brickhouse raised three additional barriers to proper service: two via Fifth Circuit Rule 28(j) letter and one at oral argument. In its Rule 28(j) letter; Brickhouse contends first that Harper Macleod establishes that Texas law governs service under the Texas Rules of Civil Procedure. We do not disagree. In Harper Macleod, 260 F.3d at 398-99, this circuit set aside a default judgment because service did not strictly comply with the relevant portion of Texas’s service rules. But what Harper Macleod has to do with this case beyond that uncontroversial proposition is unclear. It dealt with service under Section 17.044(b) of the Texas Civil Practice and Remedies Code, which “provide[d] for substituted service on the Secretary for nonresident defendants doing business in Texas that do not maintain a regular place of business in Texas.” Harper Macleod, 260 F.3d at 398. As discussed above, Brickhouse’s place of business is in Texas, so Section 17.044(b), and thus that portion of Harper Macleod, is neither here nor there.

The second case that appears for the first time in Brickhouse’s Rule 28(j) letter is Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884 (Tex. 1985) (per curiam). There the court deemed service improper where service nominally effected on Uvalde’s registered agent, Henry Bunting, Jr., was in fact made on someone denoted on the return of service as just “Henry Bunting.” Id. Here, of course, Brickhouse’s registered agent was never served, because he could not be located. Instead, service was effected in accordance with other relevant provisions of Texas law. Uvalde Country Club, too, is inapposite.

Finally, for the first time at oral argument, Brickhouse raised Bailey’s Furniture, Inc. v. Graham-Rutledge & Co., 2012 WL 6554420 (Tex. App.—Dallas 2012, no pet.) (mem.), to recommend that, under Texas law, the only way to effect substituted service on a corporation is through the Secretary of State. Bailey’s Furniture, however, does not even mention the Secretary of State. Instead, the court ruled service improper because “service was sought upon Bailey’s Furniture, but the affidavit upon which the trial court based its decision to order substituted service identified the defendant as Charles Bailey.” Id. at *2. The dissonance between the affidavit accompanying the request for substituted service and the actual defendant rendered service improper in that case. Id. But no such conflict is present here.

Service in this case was unremarkable. The only wrinkle was Bailey’s elusiveness. Brickhouse’s protestations to the contrary reveal not some heretofore unseen flaw in service but rather its apparent ignorance of proper methods of service under both Texas and federal law. The judgment of default is AFFIRMED.

      . See, e.g., Little v. Liquid Air Corp., 37 F.3d 1069, 1071 n.1 (5th Cir. 1994) (en banc).

      . Because we uphold the default judgment, we do not reach the merits of the trademark claims. Indeed we could not—because we conclude that service was properly effected, we affirm the default judgment regardless of the merits of BHTT's trademark claims. But even if we were to conclude service was improper, the remedy would not be to examine the trademark claims but to dismiss the case. Brickhouse’s attempt to have us examine the merits suggests a fundamental misunderstanding of what a default judgment is.

      . See, e.g., Arenson v. S. Univ. Law Ctr., 963 F.2d 88, 90 (5th Cir. 1992) ("The district court regained jurisdiction over the case upon our issuance of the mandate.”).

      . See, e.g., Goodwin v. Johnson, 224 F.3d 450, 459 (5th Cir. 2000) ("To consider Goodwin’s ... claim, we must identify a means of asserting jurisdiction over it. An individual seeking to avoid the effects of an appellate court’s prior decision may bring to the court a motion to recall its mandate.”); see also, e.g., 16 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3938 (3d ed. updated Jan. 2017) (discussing power of appellate courts to regain jurisdiction by recalling the mandate).

      . One additional approach, not mentioned by either side, might have some salience here. In Colbert v. Brennan, 752 F.3d 412 (5th Cir. 2014), we refused to reinstate an appeal after the appellant had voluntarily dismissed his initial notice. That was because the voluntary dismissal "plac[ed the appellant] in the same position as someone who never filed an appeal,” and the motion to reinstate the appeal came far outside the time limit set by the Federal Rules of Appellate Procedure to file an initial appeal. Id. at 416-17. This was so even though a judge of this court had issued a previous order reinstating the appeal. Id. Colbert, however, is easily distinguished; there was no voluntary dismissal here. A dismissal for want of prosecution does not operate similarly to a voluntary dismissal, in that it does not render the appellant equivalent to someone who has not filed an appeal. As long as the motion to reinstate the appeal/recall the mandate is timely, the clerk, a single judge, or a panel of three judges can grant the motion as appropriate.

      . See, e.g., Hardman v. Colvin, 820 F.3d 142, 152 (5th Cir. 2016).

      . Compare Consorzio del Prosciutto di Parma v. Domain Name Clearing Co., 346 F.3d 1193, 1196 (9th Cir. 2003) (holding that challenges to default judgments must first be brought under Rule 60(b)); CFTC v. Am. Commodity Grp. Corp., 753 F.2d 862, 865-66 (11th Cir. 1984) (per curiam) (same) with Pecarsky v. Galaxiworld.com Ltd., 249 F.3d 167, 170 (2d Cir. 2001) (permitting challenges to a default judgment to be brought first in the court of appeals). In an unpublished opinion, we agreed with Pecarsky. See SUA Ins. Co. v. Buras, 421 Fed.Appx. 384, 385 n.2 (5th Cir. 2011).

      .Federal courts cannot use "hypothetical jurisdiction” to assume that they have jurisdiction for purposes of deciding the merits. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). But courts can consider one procedural issue that impacts jurisdiction over another issue that does so. Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549 U.S. 422, 432, 127 S.Ct. 1184, 167 L.Ed.2d 15 (2007) (stating that there is no specific sequencing to procedural issues affecting jurisdiction). Here, the appellee is contending that we cannot reach the appellant's argument that service was defective because a Rule 60 motion challenging defective service is a predicate to deciding the question of defective service. Defective service, however, is itself an issue that bears not on the merits but on the court’s power to hear the case. See Carimi v. Royal Carribean Cruise Line, Inc., 959 F.2d 1344, 1345 (5th Cir. 1992). Thus, we address the issue of defective service and either dismiss for defective service or conclude that there was no such defect, thus vitiating appellee's Rule 60 argument.

      . See Hanna v. Plumer, 380 U.S. 460, 461, 474, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965).

      . Bludworth Bond Shipyard, Inc. v. M/V Caribbean Wind, 841 F.2d 646, 649 (5th Cir. 1988); Whitney v. L&L Realty Corp., 500 S.W.2d 94, 95-96 (Tex. 1973).

      . This appears to be the same Charles Bailey who proved so evasive in the case at bar.