          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.




                                         -2-
           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


                                    -3-
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


                                 -4-
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."

                                       -5-
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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