Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10765

Summary Calendar

IN RE: GARY RAY WARREN

Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:08-MC-024-A 

Before WIENER, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

This appeal concerns a sanctions order by the district court against Gary

Ray Warren in connection with his representation of Jeffrey Allen Smith in a

criminal case, No. 4:05-CR-195-A. The court issued the sanctions after granting

relief to Smith in his habeas action, No. 4:08-CV-025-A, on ineffective assistance

of counsel grounds. The district court found that, in representing Smith, Warren

had engaged in conduct unbecoming a member of the bar and unethical behavior

in violation of the local rules. Among other things, the district court’s order calls

for disbarment of Warren from that court. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

April 1, 2009

Charles R. Fulbruge III

Clerk
No. 08-10765

2

Criminal Rule LCrR 57.8(b) and Civil Rule LR 83.8(b) of the Local Rules

of the United States District Court for the Northern District of Texas each

provide that “[a] presiding judge, after giving opportunity to show cause to the

contrary, may take any appropriate disciplinary action against a member of the

bar for . . . conduct unbecoming a member of the bar; . . . [or] unethical behavior.”

Criminal Rule LCrR 57.8(e) and Civil Rule LR 83.8(e) each define “unethical

behavior” in the criminal and civil case context, respectively, as conduct “that

violates the Texas Disciplinary Rules of Professional Conduct.” As Warren

concedes, we review a district court’s order of disbarment for abuse of discretion

or grave irregularity. See Ex parte Burr, 22 U.S. 529, 530 (1824). 

On April 24, 2008 and May 1, 2008, the district court held hearings on

Smith’s habeas petition that focused largely on the question of Warren’s effective

representation of Smith in the criminal case. On May 2, 2008, the court granted

Smith relief in the form of resentencing. On June 13, 2008, the court issued a

34-page collateral order making tentative findings that Warren had engaged in

sanctionable misconduct. The June 13, 2008 order gave Warren until June 27,

2008 to show cause to the contrary, and invited Warren to request a hearing and

indicate if he wanted the court to summon any of the persons who testified at the

habeas hearings. On June 27, 2008, Warren filed a notice that provided:

Pursuant to the June 13, 2008 Order of the Court, the undersigned and

subject of the said Disciplinary Proceeding, without waiving any right to

appeal the Court’s sanction in this case, does hereby state that he does not

request a hearing in this matter and request the Court enter judgment of

whatever sanction the Court deems appropriate in this matter without

further submissions or hearings, unless such further submissions or

hearings are deemed necessary by the Court.
No. 08-10765

3

On July 7, 2008, the district court issued its final sanctions order, finding “by

clear and convincing evidence” that Warren “engaged in conduct unbecoming a

member of the bar and unethical behavior” in violation of Rule LCrR 57.8(b)(3).

The order disbarred Warren from the district court, required Warren to disgorge

the $3500 fee he received to represent Smith, and forwarded notice of the order

to the State Bar of Texas.

In support of its conclusion that Warren engaged in “unethical behavior”

in violation of Rule 57.8(b)(3) of the Local Criminal Rules, the district court first

made the following findings of fact relating to Warren’s representation of Smith:

• He neglected timely to meet and confer with Smith concerning

Smith’s presentence report for the purpose of . . . objections . . . .

• He neglected to object to the presentence report—in particular, he

failed to call the court’s attention . . . to the failure of the prosecutor

to file a motion for downward departure under USSG § 5K1.1, and

to assert whatever other objections might have been appropriate 

. . . . Once he realized that the deadline for making objections . . .

had expired, he neglected to submit proposed objections . . . with a

motion asking leave to submit the objections . . . .

• He neglected to point out to the prosecutor . . . prior to sentencing

that [the prosecutor] should have, but had not, filed a motion for

downward departure.

• He neglected to consult with Smith before informing the court that

Smith had no objection to the presentence report.

• He neglected to make known to the court at the sentencing hearing

that the government should have filed a motion for downward

departure based on the extensive assistance and cooperation his

client had provided . . . in the . . . prosecution of others.

• He neglected to pursue Smith’s appeal after it had been perfected by

the filing of the notice of appeal and the payment of the fee . . . .
No. 08-10765

4

• He neglected to inform Smith that the appeal was at risk of

dismissal because of Warren’s failure to take the steps essential to

the pursuit of the appeal.

• He neglected to inform Smith that the appeal had been dismissed.

• He neglected to take steps to cause a court-appointed attorney to

replace him as Smith’s attorney on appeal once he determined that

he did not plan to prosecute the appeal on Smith’s behalf. 

The district court concluded that the foregoing failures by Warren violated Rule

1.01 of the Texas Disciplinary Rules of Professional Conduct, which prohibits an

attorney from consciously disregarding his obligations to his client.

In further support of its conclusion that Warren had engaged in “unethical

behavior” under Rule 57.8(b)(3), the district court found that:

• Warren knowingly made a false statement of material fact to the

court when he represented to the court, under oath, in his affidavit

that Smith advised him not to pursue the appeal.

• Warren testified falsely when he said that he was instructed by

Smith’s wife . . . not to pursue the appeal he had perfected from the

judgment sentencing Smith.

• Warren testified falsely when he said that he told [Smith’s wife]

that he would charge . . . $9,500.00 . . . to prosecute Smith’s appeal.

• Warren testified falsely when he said the he did not hear from

[Smith’s wife] again after he gave her an estimate that the fee for a

transcript would be around $1,000.00.

• Warren testified falsely when he said that he concluded his

conversation with [Smith’s wife] by saying that he was not going to

do anything . . . . 

The district court concluded that the foregoing false statements violated Rules

3.03(a)(1) and 8.04(a)(3) of the Texas Disciplinary Rules of Professional Conduct,

which prohibit false statements to tribunals and dishonest conduct.
No. 08-10765

5

In closing its recitation of fact finding, the district court further referenced

Warren’s improper failure to notify this court that he was not going to prosecute

Smith’s appeal and his faulty advice to Smith and his relatives that it was better

to raise objections to the presentence report on appeal than at sentencing.

Warren filed a motion for a new trial and supporting memorandum on

July 17, 2008, which was denied by the district court on July 18, 2008.

On appeal, Warren raises five objections, all of which we reject. First, he

contends that “[a] judge may not assume the functions of the prosecutor in

investigating a charge of perjury.” The district court, however, did not serve as

prosecutor nor was Warren convicted of perjury. It issued a member sanction,

and “[c]ourts enjoy broad discretion to determine who may practice before them

and to regulate the[ir] conduct . . . .” U.S. v. Nolen, 472 F.3d 362, 371 (5th Cir.

2006). Second, Warren argues that there was insufficient evidence to convict

him of perjury or support disbarment. Again, he was not convicted of perjury.

Moreover, there was “clear and convincing” evidence to support the district

court’s finding of “one or more violations warranting this extreme sanction.” In

re Medrano, 956 F.2d 101, 102 (5th Cir. 1992). In addition, Warren waived any

challenge to such findings in the district court. Third, Warren submits that the

district court deprived him of due process by using unarticulated standards. Yet,

the district court clearly relied on the Texas Disciplinary Rules of Professional

Conduct, as expressly adopted by local rule. Warren tries to advance the

argument that, in issuing its ruling with a habeas proceeding, the district court

may have erred in citing to the local criminal rules, rather than the local civil

rules. But, as noted above, both sets of rules provide the same “unethical

behavior” standards. 
No. 08-10765

6

Warren’s fourth objection is that the district court abused its discretion “in

imposing . . . disbarment upon one with no prior disciplinary history.” Though

we appreciate the seriousness of Warren’s penalty, we conclude that there has

been no abuse of discretion, not only because the record establishes repeated

instances of dishonest conduct and disregard for his client’s interests but also

because Warren left the court’s findings effectively unchallenged by his waiver

of a hearing. It does not appear that Warren ever presented his lack of any prior

disciplinary actions to the district court, either in a hearing or even in his motion

for a new trial and supporting memorandum. Fifth, and finally, Warren argues

that he was not given adequate notice in violation of the Fifth Amendment. But

Warren was notified of the allegations against him in a 34-page preliminary

order and was provided a full and fair opportunity for a hearing. See NASCO,

Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 707 (5th Cir. 1990).

Based on the foregoing, we hold that the district court did not abuse its

discretion and affirm its sanctions order.