                                                                 [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________            FILED
                                                               U.S. COURT OF APPEALS
                                            No. 11-10061         ELEVENTH CIRCUIT
                                        Non-Argument Calendar      OCTOBER 3, 2011
                                      ________________________        JOHN LEY
                                                                       CLERK
                           D.C. Docket No. 6:10-cr-00223-GKS-DAB-1



UNITED STATES OF AMERICA,

lllllllllllllllllllllllllllllllllllllll                                Plaintiff-Appellee,

                                               versus

JAMES T. SKUTHAN,

llllllllllllllllllllllllllllllllllllllll                       Interested Party-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (October 3, 2011)

Before BARKETT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

         Attorney James Skuthan appeals his conviction for criminal contempt, under
18 U.S.C. § 401(3) and Fed.R.Crim.P. 42(a), for failure to appear and failure to

provide the court with notice of a conflict during his representation of a client at a

sentencing hearing before district court Judge G. Kendall Sharp. Skuthan was not

present when his case before Judge Sharp was first called because he was tending

to matters of other clients before another district court judge, Chief Judge Conway,

and he failed to file a notice of conflict with the court regarding his conflicting

hearing obligations.

      On appeal, Skuthan first argues that the district court’s order of contempt is

procedurally deficient since Rule 42(b) does not authorize the court to summarily

dispose of criminal contempt proceedings where, as here, the contemptuous

conduct occurred outside the presence of the judge. Instead, Skuthan argues, he

was entitled to notice of the proceeding and an opportunity to obtain counsel and

present evidence in his defense, as required by Rule 42(a). Secondly, he argues

that the district court’s order is substantively deficient since there was no

reasonably specific order in existence for him to violate, and there is no evidence

that his actions were willful, intentional, or reckless. Specifically, he contends

that he made substantial efforts to reconcile his conflicting hearing obligations by

contacting Judge Conway’s chambers weeks before the hearing date, and it was

his understanding that Judge Conway’s chambers had contacted Judge Sharp’s

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chambers regarding the scheduling conflict.

      As a preliminary matter, the district court did not indicate whether it was

finding Skuthan in criminal or civil contempt of court. However, we have

“uniformly regarded the imposition of a penalty against attorneys for a punitive

purpose as a criminal contempt sanction.” United States v. KS & W Offshore

Engineering, Inc., 932 F.2d 906, 908 (11th Cir. 1991); see also Romero v.

Drummond Co., 480 F.3d 1234, 1242 (11th Cir. 2007) (stating that, “[b]ecause the

district court assessed a punitive fine against the [attorney], the contempt order

[was] criminal in nature”). “Unlike civil contempt, an order of criminal contempt

is a final decision that is immediately appealable.” Drummond, 480 F.3d at 1242.

      The district court here erred in summarily disposing of the criminal

contempt charge against Skuthan. First, since Skuthan was subject to an indirect

contempt order, summary disposition would normally not be appropriate.

Secondly, although Skuthan provided the court with an explanation for his

absence and failure to file a notice of conflict prior to the court’s finding of

contempt, this is the type of situation in which the attorney would benefit from the

opportunity to call witnesses in his defense. Therefore, Skuthan was entitled to

the procedural protections of Rule 42(a). Even if this were the type of case where

the procedures of Rule 42(a) need not be followed, there is not sufficient evidence

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to support a charge of criminal contempt.

      Although Skuthan violated the court’s order to appear at his client’s

sentencing hearing, his conduct does not rise to the level of willfulness. Since

there is insufficient evidence to support a finding of criminal contempt, remand to

the district court to comply with the procedures of Rule 42(a) would not be proper.

See Robinson, 922 F.2d at 1535 (holding that, where the attorney’s conduct did

not constitute contempt, “a remand to the district court to allow compliance with

Rule 42(a) would be fruitless”). Accordingly, we reverse the district court’s

contempt order and dismiss the proceedings against Skuthan.

      REVERSED AND DISMISSED.




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