United States v. Romero–lópez, 10–1611.

• Decision Date: 16 November 2011
• Docket Number: No. 10–1611.,10–1611.
• Citation: 661 F.3d 106
• Parties: UNITED STATES of America, Appellee, v. José ROMERO–LÓPEZ, Defendant,Jorge L. Armenteros–Chervoni, Appellant.
• Court: U.S. Court of Appeals — First Circuit

661 F.3d 106

UNITED STATES of America, Appellee,

v.José ROMERO–LÓPEZ, Defendant,Jorge L. Armenteros–Chervoni, Appellant.

No. 10–1611.

United States Court of Appeals, First Circuit.

Heard Nov. 7, 2011.Decided Nov. 16, 2011.

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.

Before LYNCH, Chief Judge, TORRUELLA and THOMPSON, Circuit Judges.

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.

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, 114 S.Ct. 2552, 129 L.Ed.2d 642 (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 courts,” as such power is “necessary to the exercise of all others.” Chambers v. NASCO, Inc., 501 U.S. 32, 43–44, 111 S.Ct. 2123, 115 L.Ed.2d 27 (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, 111 S.Ct. 2123, 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, 111 S.Ct. 2123.

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...