United States v. Romero-Lopez , 661 F.3d 106 ( 2011 )

United States Court of Appeals
For the First Circuit
No. 10-1611
UNITED STATES OF AMERICA,
Appellee,
v.
JOSÉ ROMERO-LÓPEZ,
Defendant,
JORGE L. ARMENTEROS-CHERVONI,
Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.
Juan F. Matos de Juan for appellant.
Maritza González-Rivera, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, Nelson Pérez-Sosa, Chief, Appellate Division, and Thomas
F. Klumper, Assistant United States Attorney, were on brief, for
appellee.
November 16, 2011
LYNCH, Chief Judge. Attorney Jorge L. Armenteros-
Chervoni was sanctioned by the district court, under its inherent
powers, in the amount of $1,500 for failing to appear at the
rescheduled sentencing hearing for his client, a criminal
defendant. We affirm the issuance of the sanction, but reduce the
amount.
The sentencing hearing was initially scheduled for 4:30
P.M. on Wednesday, May 12, 2010, but on the afternoon of Monday,
May 10, the district court advanced the hearing to 9:30 A.M., and
gave electronic notice of the change. Prior notices and filings in
the case used the electronic case filing system. The attorney did
not appear at the hearing. The same day, the district court
imposed the $1,500 sanction.
The attorney filed a motion for reconsideration, claiming
that he was unaware of the change in the hearing time as both he
and his secretary had been out of the office since Monday afternoon
and neither of them had checked their email for electronic
notifications. This motion also, unwisely, made remarks critical
of the district court, such as "the Court is not respecting the
attorneys to the extent that it unilaterally changes dates or times
without consulting attorneys' calendars," and characterized the
schedule changes as a violation of the Due Process Clause. This
motion was denied and the attorney has appealed.
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In an effort to take advantage of the procedural
requirements before criminal contempt can be imposed, the attorney
argues on appeal (but did not so argue before the district court)
that the sanction imposed by the district court was a criminal
contempt sanction. As a result, he argues, the district court was
required to follow the procedures outlined in Rule 42, Fed. R.
Crim. P. He contends that because these procedures were not
followed, the sanctions were improperly imposed.
We reject the attorney's characterization of the sanction
as criminal contempt, and bypass the waiver for failing to raise
the issue in the district court. His argument is based on a flawed
premise: that because the district court's sanction was not a civil
contempt sanction, as it did not seek to "modify[] [his] behavior
to conform to the terms required in the [court's] order," as is
typically the case in a civil contempt, it must have been a
criminal contempt sanction, imposed "retrospectively for a
completed act of disobedience, such that the contemnor cannot avoid
or abbreviate the [sanction] through later compliance." Int'l
Union, United Mine Workers v. Bagwell, 512 U.S. 821, 828-29 (1994)
(internal citations and quotation marks omitted). This premise of
a dichotomy is "demonstrably mistaken" because there exists a third
category of "punitive non-contempt sanctions," based on a court's
inherent power to regulate itself. United States v. Kouri-Perez,
187 F.3d 1, 7 (1st Cir. 1999). This power "is inherent in all
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courts," as such power is "necessary to the exercise of all
others." Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991)
(internal citations and quotation marks omitted).
While the district court did not expressly state that
this was an inherent-power sanction, that is what it was. First,
there was no formal finding of "contempt," which would "connote[]
the highest level of censure against counsel." Kouri-Perez, 187
F.3d at 8. Rather, the district court "admonished" the attorney.
Second, there was no indication the court thought the "conduct
. . . bespeaks a criminal mens rea," as is required for a criminal
contempt sanction. Id. Third, the court's act of sanctioning an
attorney for failing to appear falls squarely within its recognized
inherent power "to discipline attorneys who appear before it."
Chambers, 501 U.S. at 43, see also In re Smothers, 322 F.3d 438,
443 (6th Cir. 2003) ("District judges routinely impose monetary
penalties for tardiness without resorting to a finding of criminal
contempt."). "We review a court's imposition of sanctions under
its inherent power for abuse of discretion." Chambers, 501 U.S. at
55.
The district court did not abuse its discretion in
imposing a sanction. Attorneys have an obligation to remain
informed about the status of their cases and comply with applicable
scheduling orders issued by the court. See, e.g., Rosario-Diaz v.
Gonzalez, 140 F.3d 312, 314 (1st Cir. 1998) (parties are "fully
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chargeable with knowledge of what the docket disclosed"); Witty v.
Dukakis, 3 F.3d 517, 520 (1st Cir. 1993) ("[P]arties to an ongoing
case have an independent obligation to monitor all developments in
the case . . . .").1 When electronic case filing is utilized, as
here, counsel needs to monitor the docket for electronic filings.
The attorney's failure to monitor for electronic notices
constituted a violation of this obligation. Further, his failure
to appear at the rescheduled hearing, or provide the court with any
notice of unavailability, imposed an unnecessary burden on an
extremely busy court, as well as the other participants.
We do think a lesser penalty suffices. The Supreme Court
has admonished courts to be cautious in using their inherent power
to sanction, explaining that "[b]ecause of their very potency,
inherent powers must be exercised with restraint and discretion."
Chambers, 501 U.S. at 44. "[T]here is much to be said for
deploying the least extreme sanction reasonably calculated to
achieve the appropriate punitive and deterrent purposes." Kouri-
Perez, 187 F.3d at 8. In the circumstances of this case, where the
time for the sentencing hearing was changed less than two days
before the hearing, and where there is no indication of an
intentional flouting of the court's authority or repeated
1
Indeed, the attorney's motion for reconsideration, to his
credit, properly admitted that he had "an affirmative duty to
monitor the electronic filing system for entry of new filings or
Orders."
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tardiness, a lesser sanction will suffice to deter future
violations. A $500 sanction would be more appropriate in these
circumstances. See Bills v. United States, 11 Fed. App'x 342 (4th
Cir. 2001) (per curiam) (affirming district court's imposition of
a $500 inherent powers sanction for an attorney's failure to appear
at a sentencing hearing).
Additionally, we note that when a court is considering
invoking its inherent power to sanction, the much better practice
is for the court to hear from the offending attorney before
imposing any sanctions. While Armenteros-Chervoni was ultimately
given an opportunity to explain himself in his motion for
reconsideration, and denial of the intemperate motion was
understandable, it is preferable to hear counsel's explanations
prior to imposition of sanctions.
We affirm the district court's decision to impose
sanctions, but reduce the $1,500 amount of such sanctions to $500.
So ordered.
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