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. ArmenterosChervoni 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 . . . ."). When electronic case filing is utilized, as 1

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." KouriPerez, 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

Indeed, the attorney's motion for reconsideration, to his 1

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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