Case: 16-11189      Document: 00513975506         Page: 1    Date Filed: 05/02/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                      No. 16-11189                            FILED
                                                                           May 2, 2017
                                                                         Lyle W. Cayce
In re: WILLIAM HERMESMEYER,                                                   Clerk

              Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:16-MC-17


Before REAVLEY, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Williams Hermesmeyer, an Assistant Public Defender, appeals the
district court’s imposition of a $500 fine for violating Local Rule 57.8(b). We
affirm.
                                             I
       Hermesmeyer represented a defendant who pleaded guilty to illegal re-
entry after deportation. At the sentencing hearing, the following exchange
between Hermesmeyer and the district court occurred:
       THE COURT: Okay. Let’s see. There were some—there were two
       objections filed, and I believe both of them were related to the
       possibility of a sentence above the top of the advisory guideline
       range. Did I read those correctly, Mr. Hermesmeyer?


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                            No. 16-11189
 MR. HERMESMEYER: Your Honor, I think they have more to do
 with legality of whether such a sentence would be permissible or
 appropriate.

 THE COURT: I’m sorry, I was wondering if I’m correct in thinking
 that both of the objections have to do with the possibility of a
 sentence above the top of the advisory guideline range. What is
 the answer to that?

 MR. HERMESMEYER: Your Honor, just what I said.

 THE COURT: I’m not sure I understand how that answered my
 question. I’ve asked the question again. Would you please answer
 the question either yes or no.

 MR. HERMESMEYER: Your Honor, I would stand on what I
 previously said. Thank you.

 THE COURT: Mr. Hermesmeyer, you get very close to being held
 in contempt of court. Would you answer my question?

 MR. HERMESMEYER: I have no further response, your Honor.

 THE COURT: Okay. Mr. Hermesmeyer, I’ve ordered you to
 answer my question, and you’ve refused to answer it. I consider
 that you’re in civil contempt of court, and also you’re in violation
 of one of the local rules that requires attorneys to appropriately
 conduct themselves and to respond and answer orders of the Court.
 I’m going to give you another opportunity to answer my question.
 And if you would like, if you decline to answer my question, I’ll give
 you an opportunity at this time to respond to my suggestion that
 you will be held in civil contempt of court and held in violation of
 the local rule concerning the conduct of attorneys, if you refuse to
 answer my question. You may proceed.

       [Pause in proceedings.]

 THE COURT: Okay. Apparently you’re not going to respond. I’m
 ordering that you are in violation of the local rule. Let me get the
 exact number of it.


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                                 No. 16-11189
      MR. HERMESMEYER: Your Honor, at this point I would move to
      withdraw from the representation of [the defendant] given the
      indications that the Court has made. [He] needs an attorney that’s
      not under the threat of civil contempt or whatever sort of contempt
      that the Court is indicating at this point.

      THE COURT: I deny that motion. Rule of Criminal Procedure
      LCR 57.8(b) says: A presiding judge, after giving an 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 and failure to comply with any order of the
      Court.

      I consider that you have violated that rule in both respects. I’ll
      give you an opportunity—I’ve given you an opportunity to show
      cause why you shouldn’t be disciplined for that and you’ve declined
      to respond, so I’m ordering that you pay a $500 fine, and that it be
      paid by 2:00 today, and be paid to the office of the clerk of court
      here in Fort Worth.

      On the same day as the sentencing hearing, the district court entered a
written order imposing the $500 fine. It concluded that Hermesmeyer had
“engaged in conduct unbecoming a member of the Bar of this court and failed
to comply with an order of this court” in violation of Northern District of Texas
Local Criminal Rule 57.8(b). The district court noted that it had warned
Hermesmeyer of possible disciplinary action against him before imposing the
sanction, but that Hermesmeyer nevertheless “persisted in his inappropriate
conduct.” It also stated that Hermesmeyer had “failed to show cause why he
should not be disciplined.”
      After the hearing and entry of the written order, Hermesmeyer filed a
notice with the district court to explain his conduct. Hermesmeyer stated that
his “obligation of candor to the Court necessitated” the response he gave at the
sentencing hearing. In his view, whether the objections to the presentencing
report “were related to the possibility of a sentence above the top of the

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                                 No. 16-11189
advisory guideline range” required both a yes and a no answer: in his opinion,
“the possibility for such a sentence did not exist according to the objections’
legal analysis,” but, if there was authority to impose that sentence, “such a
sentence would be possible yet not appropriate for other mitigating reasons.”
According to Hermesmeyer, to answer in the affirmative would have been
incomplete and inaccurate.
      The district court did not rescind its disciplinary order, and
Hermesmeyer paid the fine. Hermesmeyer then appealed. After he filed a
notice of appeal, the district court issued a thirty-two page supplemental order
to “provid[e] background and context for the court’s decision to take
disciplinary action against” Hermesmeyer and to aid this court in its
evaluation of Hermesmeyer’s appeal. The district court described a number of
other instances in which it believed Hermesmeyer engaged in disruptive
conduct that was “procedurally and substantively improper,” noting that
Hermesmeyer had “developed a practice of improperly disrupting the court’s
Rule 11 penalty admonitions.”
      In several cases, Hermesmeyer objected to the district court’s admonition
that defendants pleading guilty to drug offenses might be subject to lifetime
supervised release. Because the factual resumes in those cases indicated terms
of supervised release “not less than x years,” Hermesmeyer objected to the
district court’s admonition. The district court asked Hermesmeyer for legal
support for the objections, support which Hermesmeyer was unable to provide
satisfactorily.   In one of those cases, the district court pointed out that
Hermesmeyer could object to the possible penalty of lifetime supervised release
at sentencing, if his client did in fact receive such a penalty. Hermesmeyer
was unable, in the district court’s view, to provide persuasive authority
supporting his contention that the objection at rearraignment was necessary
to preserve it for appeal.
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                                        No. 16-11189
      The district court recounted another case in which Hermesmeyer
objected to the proposed jury charge in advance of a criminal trial. Finding no
substantive difference between the proposed charge and Hermesmeyer’s
suggested substitution, the district court warned Hermesmeyer against
further “evasive[]” responses to the court’s questions and explained that he was
“going to have to straighten [his] act up.” The district court repeatedly asked
Hermesmeyer what the substantive difference between the two versions was
such that an objection was necessary, to which Hermesmeyer stated that he
was “just going to rely on the objection that has been recited.” The district
court stated that Hermesmeyer had disregarded a “specific question” by the
court and “refused to answer it.”                   The district court again warned
Hermesmeyer that he might be subject to contempt proceedings or sanctions
for refusing to answer the district court’s questions, though no sanctions were
imposed in that instance.
      In its supplemental order, the district court noted that the relevant
conduct here “was not unlike conduct in which [Hermesmeyer] had engaged on
prior occasions that led to expressions of concern by the court.” It concluded
that “[Hermesmeyer] was adequately warned on July 15, 2016, and knew from
previous warnings from the court that he was at risk of discipline.”
                                               II
      We review whether an attorney’s conduct is subject to sanction de novo. 1
A district court’s imposition of a particular sanction is reviewed for abuse of
discretion. 2 A district court abuses its discretion “if the ruling is based on an
‘erroneous view of the law or on a clearly erroneous assessment of the




      1   In re Sealed Appellant, 

, 670 (5th Cir. 1999).
      2   

States v. Brown, 

, 28 (5th Cir. 1995)).
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                                    No. 16-11189
evidence.’” 3 “The question before us is not whether we would [impose the same
punishment] but, rather, whether the district court abused its discretion in
doing so.” 4
                                          III
      We first address whether we can consider the district court’s
supplemental order. Generally, “the filing of a valid notice of appeal from a
final order of the district court divests that court of jurisdiction to act on the
matters involved in the appeal, except to aid the appeal, correct clerical errors,
or enforce its judgment so long as the judgment has not been stayed or
superseded.” 5 We have explained that under the exception to this general rule
for aiding the appeal, the “district court should have full authority to take any
steps during the pendency of the appeal that will assist the court of appeals in
[its] determination.” 6
      In the instant case, the district court entered a written order the same
day it held Hermesmeyer in violation of the Local Rule. In a supplemental
order, filed three weeks after its first order and six days after Hermesmeyer’s
notice of appeal, the district court submitted that “[d]escriptions of
inappropriate conduct of Hermesmeyer in the handling of other cases before
[this case], help explain the court’s decision to impose discipline for
his . . . conduct.” The supplemental order did not assert alternate grounds for
imposing the $500 fine, nor did it suggest that the district court imposed the
fine as punishment for past behavior.             Rather, the supplemental order



      3  In re Deepwater Horizon, 

, 577 (5th Cir. 2016) (per curiam) (quoting

).
       4 In re Sealed 

.
       5 Avoyelles Sportsmen’s League, Inc. v. Marsh, 

, 928 (5th Cir. 1983);

accord In re Transtexas Gas Corp., 

, 578-79 (5th Cir. 2002) (citing Griggs v.
Provident Consumer Disc. Co., 

, 58 (1982)).
       6 Silverthorne v. Laird, 

, 1178 (5th Cir. 1972) (quoting 9 JAMES WM.

MOORE, ET AL., MOORE’S FEDERAL PRACTICE ¶ 203.11 n.2 (2d ed. 1961)).
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                                       No. 16-11189
reiterated that the sanction was imposed pursuant to the Local Rule and
provided context for the district court’s discipline of Hermesmeyer, namely
that Hermesmeyer’s failure to answer the district court’s question was not the
first misunderstanding and that the district court had previously warned
Hermesmeyer that his conduct could be subject to discipline. Because the
supplemental order aids this court in evaluating the sanction imposed, we
consider it.
                                              IV
       In imposing sanctions, the district court relied on its finding that
Hermesmeyer had violated a professional rule, rather than on its inherent
power to discipline parties appearing before it. 7 “It is well settled that in order
for a federal court to sanction an attorney under its inherent powers, it must
make a specific finding that the attorney acted in bad faith.” 8 This circuit has
declined, however, to require a finding of bad faith if a district court sanctions
an attorney for violating one of the district court’s local rules. 9 We again
decline to impose that requirement here.
       Under Local Criminal Rule 57.8(b), a judge may take disciplinary action
against a member of the bar for “conduct unbecoming a member of the bar” and
for “failure to comply with any rule or order of the court.” 10 Although “conduct
unbecoming a member of the bar” is not defined in the Local Rules, the
Supreme Court has interpreted the same language, as used in Federal Rule of


       7  See 

n.2 & 29 (concluding that the district court principally
relied on a violation of the professional rules in imposing sanctions, even though the court
referenced its inherent power to do so in its ruling). We recognize that the district court
initially “consider[ed] [Hermesmeyer] in civil contempt of court, and also . . . in violation of
one of the local rules.” However, based on the district court’s subsequent statements, it is
clear that Hermesmeyer was sanctioned for violation of the Local Rule and not held in civil
contempt.
        8 In re Goode, 

, 559 (5th Cir. 2016).
        9 

TEX. LOCAL CRIM. R. 57.8(b)(1)-(2).

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                                       No. 16-11189
Appellate Procedure 46, to mean “conduct contrary to professional standards
that shows an unfitness to discharge continuing obligations to clients or the
courts, or conduct inimical to the administration of justice.” 11                 Failure to
answer a court’s question can constitute failure to comply with an order of the
court. 12
        We conclude that Hermesmeyer’s conduct at the sentencing hearing
violated the Local Rule. The district court, in its effort to conduct sentencing
efficiently, asked Hermesmeyer if his objections “related to the possibility of a
sentence above the top of the advisory guideline range.” The clear import of
that     question   was     to   confirm     that    Hermesmeyer         objected    to   the
recommendation that his client be sentenced above the guideline range. The
district court believed that Hermesmeyer failed to answer this question
adequately, and Hermesmeyer refused to alter his response when the court
repeated the question.
        Hermesmeyer characterizes all of this exchange as the result of the
district court’s demand that he give a yes or no answer to the district court’s
question. First, even if the district court’s stated options for an answer were
inadequate, Hermesmeyer needed to answer in some way. Second, even before
the district court indicated he wanted a simple one-word answer,
Hermesmeyer had responded to a much more open-ended question with the
equivalent of a refusal to explain, saying his answer was “just what I said.”
Perhaps the district court contributed to the difficulties, but an attorney must
comply with court orders.



        11In re Snyder, 

, 644-45 (1985).
        12See Bluitt v. Arco Chem. Co., 

, 189, 190 (5th Cir. 1985) (considering an
attorney’s failure to answer interrogatories adequately as failure to comply with a court’s
order); Clark v. Mortenson, 93 F. App’x 643, 651 (5th Cir. 2004) (per curiam) (citing Howell
v. Jones, 

, 55, 58 (5th Cir. 1975)) (considering an attorney’s failure to answer the
court’s direct question as contemptuous behavior).
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                                        No. 16-11189
       We also conclude that the district court did not abuse its discretion in
imposing a $500 fine. As a general rule, a court imposing sanctions “must use
the least restrictive sanction necessary to deter the inappropriate behavior.” 13
Here, the district court had previously warned Hermesmeyer that similar
conduct was inappropriate. 14 Hermesmeyer was also provided the opportunity
to explain why he would not answer the district court’s question, and he was
warned that he would be sanctioned for failing to answer. In light of these
circumstances, we cannot say that the district court abused its discretion in
fining Hermesmeyer $500.
                                    *        *         *
       For the foregoing reasons, we AFFIRM.




       13 In re First City Bancorporation of Tex. Inc., 

, 867 (5th Cir. 2002)
(upholding sanctions imposed under the bankruptcy rules and under the bankruptcy court’s
inherent authority because attorney failed to heed oral and written warnings not to engage
in personal attacks).
       14 See In re Greene, 

, 224, 225 (5th Cir. 2000) (per curiam) (vacating a

$300 fine imposed pursuant to Local Rule 57.8(b) for an attorney arriving ten to twelve
minutes late for a hearing because the district court should have first admonished the
attorney about being on time for this first infraction).
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                                No. 16-11189
REAVLEY, Circuit Judge, concurring:
      I concur. This unnecessary exercise began as Judge McBryde had stated
an aspect of the sentencing law. Counsel for defendant interrupted so he may
have preferred to have the court speak in terms of what was an appropriate
sentence at the top of the guidelines for his client. The judge tried several
times to get counsel to explain what he meant by his objection, asking “please”
and finally suggesting contempt. But counsel let it go on to his satisfaction.
Whether this was the violation of a rule or contemptuous behavior, this was
unacceptable professional conduct.




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