Not for Publication in West's Federal Reporter

            United States Court of Appeals
                         For the First Circuit

No. 07-1159

                       UNITED STATES OF AMERICA,

                                  Appellee,

                                       v.

                         JOEL MERCED-RODRÍGUEZ,

                          Defendant, Appellant.




            APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF PUERTO RICO

          [Hon. Jay A. García Gregory, U.S. District Judge]


                                    Before


           Torruella, Siler*, and Howard, Circuit Judges.


          Jane Lee for appellant.
          Julia M. Meconiates with whom Rosa Emilia Rodríguez-
Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant
United States Attorney, were on brief for appellees.



                              March 24, 2009




     *
         Of the Sixth Circuit, sitting by designation.
          SILER,    Circuit   Judge.        Pursuant   to   a    written      plea

agreement, Appellant Joel Merced-Rodríguez and his co-defendant

pled guilty to one count of aiding and abetting each other in the

offense of carjacking under 18 U.S.C. § 2119.          He was sentenced to

a term of 141 months.       Despite signing a plea agreement with an

appeal-waiver provision, he appeals, arguing that there was an

insufficient factual basis establishing that he had the intent to

inflict serious bodily harm to effectuate the carjacking.                For the

following reasons, we affirm.

                                     I.

          The    relevant   facts    were    summarized     in    the    factual

stipulation accompanying the plea agreement:

     On September 10, 2005 at approximately 1:30PM, the
     defendant along with another individual attempted to take
     by force, violence and/or intimidation a motor vehicle
     from NLF, while she was parking her vehicle, a 2001 Honda
     CR-V, license plate EEK-823 at the Santa Maria Shopping
     Center in Guaynabo, PR. As the victim was exiting her
     vehicle, the defendant approached her and grabbed her by
     the shoulder and stated “this is a holdup”, the defendant
     then grabbed the victim’s handbag and keys to her motor
     vehicle.   The defendant was unable to take the motor
     vehicle due to a locking device that the victim had just
     placed in the steering wheel of the vehicle. At this
     time the victim began to scream and the defendant along
     with the other individual attempted to flee the scene but
     were arrested nearby.

          Merced-Rodríguez     was     indicted,   along        with    his   co-

defendant, on two counts of aiding and abetting each other in

carjacking.     The indictment alleged the offenses occurred on two




                                     -2-
separate occasions, involving different victims and cars, within a

span of four days.

            On August 1, 2006, Merced-Rodríguez signed an agreement

under   Rule    11(c)(1)(B),    pleading      guilty   to    Count    Two   of   the

indictment for the September 10 incident.                 The agreement stated

that the government would request Count One be dismissed if the

parties recommended a sentence of 141 months.                 That sentence was

within the range the parties agreed to submit as the advisory

guidelines range.       The plea agreement contained an appeal-waiver

provision      that   stated   “if    this    Honorable     Court    accepts     this

agreement and sentences him according to its terms and conditions,

defendant waives and surrenders his right to appeal the judgment

and sentence in this case.”

            A change-of-plea hearing was held on August 1, 2006.                  On

November 3, 2006, the district court held a sentencing hearing and

sentenced Merced-Rodríguez to 141 months imprisonment.

                                        II.

            We articulated the standards for reviewing appeal-waiver

provisions in United States v. Teeter, 

(1st Cir. 2001).

The defendant must have entered the plea knowingly and voluntarily.

evaluate whether the plea meets this standard, the

court looks at both the text of the appeal-waiver provision and the

change-of-plea colloquy.        

to honor the waiver if




                                        -3-
denying   the   right   to    appeal    would   effect   a   “miscarriage   of

justice.”    

concedes the appeal-waiver provision in

the agreement was clear.           As to the plea colloquy, under Federal

Rule of Criminal Procedure 11(b)(1)(N), the court must “inform the

defendant of, and determine that the defendant understands . . .

the terms of any plea-agreement provision waiving the right to

appeal or to collaterally attack the sentence.”              

focus of this inquiry is to ascertain whether the court’s

interrogation suffices to ensure that the defendant freely and

intelligently agreed to waive her right to appeal her forthcoming

sentence.”      

.          The district court must

“inquire specifically at the change-of-plea hearing into any waiver

of appellate rights.”        

hearing, Merced-Rodríguez was represented by

counsel2 and the district court specifically pointed out the appeal

waiver, reiterating the text of the provision and making sure

Merced-Rodríguez understood the waiver.           Next, the court stated:

“Are you aware that, depending on the facts the Court finds and the

sentence it imposes, both you and the government may still appeal

the sentence in this case subject to that whatever?” (Merced-

Rodríguez replied “yes.”)          The court explicitly noted the right to


     2
       Merced-Rodríguez had earlier signed the plea agreement and
the government had agreed not to pursue another carjacking charge
in Count One.

                                       -4-
appeal depended on the facts the court finds and the sentence it

imposes.    This is consistent with the conditional language of the

appellate waiver, which stated the right to appeal is waived if the

court accepts the agreement and sentences the defendant according

to   its   terms   and   conditions.          The    phrase    “subject   to   that

whatever,” while not a model of clarity, could reasonably be

understood to mean the court was referring to the waiver provision

it just read, and does not negate the waiver.

            We have explicitly disagreed with the Ninth Circuit’s

approach which finds “a blanket assurance about the right to

appeal,    delivered      when    sentence      is    pronounced,     cancels    a

preexisting waiver of appellate rights.”               

such

statements “muddy the water and tend to instill false hope–they do

not effect a per se nullification of a plea-agreement waiver of

appellate rights.”         

here, which

conditioned the right to appeal on the court’s making certain

findings and imposing the recommended sentence (which it ultimately

did), cannot serve to negate the waiver.               As we declared in United

States v. Soto-Cruz, 

(1st Cir. 2006), “[T]he district

court’s statement about the limited circumstances under which [the

defendant]    could      appeal   his    sentence       does    not   negate    the

enforceability of his appeal waiver.”               

agreements entered into knowingly and voluntarily

are presumptively valid, but the court of appeals may not enforce


                                        -5-
the waiver if doing so would work a miscarriage of justice.

.         In determining what constitutes a

“miscarriage    of    justice,”   we    have      articulated   the   following

considerations:

     [T]he clarity of the error, its gravity, its character
     (e.g., whether it concerns a fact issue, a sentencing
     guideline, or a statutory maximum), the impact of the
     error on the defendant, the impact of correcting the
     error on the government, and the extent to which the
     defendant acquiesced in the result.

noted that the miscarriage-of-justice exception

would “be applied sparingly and without undue generosity.”                   

there would be a miscarriage of

justice if the waiver is enforced because there was no factual

basis for the intent element of the crime to which he pled guilty.

          Federal Rule of Criminal Procedure 11(b)(3) requires the

court to determine that there is a factual basis for the plea.               

abecedarian level, the requirement that a guilty plea

must be supported by an adequate factual basis ensures that the

conduct to which the defendant admits constitutes the crime with

which he is charged.”      United States v. Negron-Narvaez, 

, 37 (1st Cir. 2005).           It is not a test of guilt versus

innocence—the    court    “need   only       be   persuaded   that    sufficient

evidence exists to permit a reasonable person to reach a finding of

guilt.”   

may come either from the

defendant’s admissions and concessions or from credible evidence



                                       -6-
proffered by the government and not contradicted by the defendant.”

   present    the   issue    of   an

insufficient factual basis to the district court and therefore the

standard of review is plain error.          

error, he

must demonstrate that there is error that is plain and that it

affects substantial rights.      If these conditions are met, this

court may use its discretion to notice such an error if it

“seriously affect[s] the fairness, integrity, or public reputation

of judicial proceedings.” United States v. Borrero-Acevedo,533 F.3d

11,15 (1st Cir. 2008)(quoting Johnson v. United States, 

, 467 (1997)) (internal quotation marks omitted, alteration in

original).    In the context of an error under Rule 11 of the Federal

Rules of Criminal Procedure, to demonstrate that the error affects

substantial    rights,   the   defendant      must     show   a    reasonable

probability that, but for the error, he would not have pled guilty.

United States v. Dominguez Benitez, 

, 76 (2004).

          Here, Merced-Rodríguez argues there were insufficient

facts to establish that he had the requisite intent to inflict

serious bodily harm under the carjacking statute.                 The Supreme

Court discussed the mens rea requirement in Holloway v. United

States, 

(1999), finding conditional intent to cause

bodily harm sufficient. “Congress intended to criminalize the more

typical carjacking carried out by means of a deliberate threat of


                                     -7-
violence, rather than just the rare case in which the defendant has

an unconditional intent to use violence regardless of how the

driver responds to his threat.”         

cases where the

driver surrendered the car without the defendant’s attempting to

inflict or actually inflicting serious bodily harm, the government

would have to prove that “the defendant would have at least

attempted to seriously harm or kill the driver if that action had

been necessary to complete the taking of the car."           

added).      Here, the stipulation of facts provided that

“the defendant approached her and grabbed her by the shoulder and

stated ‘this is a holdup’, the defendant then grabbed the victim’s

handbag and keys to her motor vehicle . . . .”

           In addition, there is the issue of the gun attributed to

his co-defendant in the presentence report (“PSR”).               The two

defendants were indicted and pled guilty to separate counts of

“aiding and abetting” each other in the related offenses.               In

United   States   v.   Evans-Garcia,    the   defendant    challenged   the

sufficiency of the evidence of his intent to aid and abet the

carjacking.   

, 113 (1st Cir. 2003).          The court noted:

           There is an additional layer in the analysis
           of [the defendant]’s intent in this case, as
           the indictment and judgment state that he was
           an aider and abetter in the offenses. To be
           liable as an aider and abetter, a defendant
           must have “consciously shared the principal’s
           knowledge of the underlying criminal act, and
           intended to help the principal.”



                                  -8-


United States v. Otero-Méndez, 

, 51

(1st Cir. 2001)) (footnote omitted).           Here, the PSR established

Merced-Rodríguez’s co-defendant had a gun, and although the PSR

stated it had a blocked barrel, there is no evidence that Merced-

Rodríguez knew that the gun was inoperable.           Therefore, because of

the framing of his culpability as an aider and abettor, the gun

further supports the factual basis that he would have at least

attempted to seriously harm the victim if necessary.               Therefore,

the district court did not commit plain error in concluding that

this creates a sufficient factual basis to permit a reasonable

person to find that, at the moment of demanding the car, Merced-

Rodríguez would have at least attempted to seriously harm the

victim if necessary.

          Merced-Rodríguez argues that under the statute the mens

rea requirement applicable here is intent to cause “serious bodily

injury” as defined in 18 U.S.C. § 1365.          This is incorrect.        The

carjacking statute describes the intent as “intent to cause death

or serious bodily harm.”     18 U.S.C. § 2119 (emphasis added).           Under

subsection   (1),   the    maximum    prison   term   is   15    years.    

the penalty to 25 years if serious bodily

injury (as defined in § 1365) or death results.            

  and    part   of   the    plea    agreement    reference      both

subsections, in the “Maximum Penalty” section of the agreement, it

states the maximum penalty for the count is 15 years, suggesting


                                      -9-
Merced-Rodríguez    was   pleading    guilty     to   a   violation    only   of

subsection (1) and not subsection (2).                Consistent with that,

Merced-Rodríguez was sentenced, pursuant to the agreement, to 141

months, which is closer to the 15-year maximum under subsection

(1).

          Because     there   was    a      sufficient    factual     basis   of

conditional intent, enforcing the plea agreement does not work a

miscarriage of justice.       In addition, the miscarriage of justice

standard requires this court to assess the character of the error

and the extent to which the defendant acquiesced in the result.

.       In this case, Merced-Rodríguez did not

raise the sufficiency of the factual basis before the district

court and therefore to the extent review is available, it would be

for plain error. Under that standard, he would have to demonstrate

he would not have pled guilty but for the error, which he has

failed to do.

          AFFIRMED.



                    -Dissenting Opinion Follows-




                                     -10-
            TORRUELLA, Circuit Judge (Dissenting).              With due respect

to the well-reasoned opinion of my colleagues in the majority, I am

compelled to dissent for the reasons hereinafter stated.

            I believe that the district court plainly erred in

finding a sufficient factual basis to accept the plea agreement.

Specifically, I question whether a factual basis existed that would

allow the district court to conclude that Merced-Rodríguez had the

requisite    intent    to    inflict    serious      bodily    harm    under   the

carjacking statute.          While I recognize that Fed. R. Crim. P.

11(b)(3) does not require a "test of guilty versus innocence" or

proof beyond a reasonable doubt, we have made clear that there must

be   a   "reasoned   basis    to   believe    that   the   defendant     actually

committed the crime to which he is admitting guilt." United States

v. Matos-Quiñones, 

, 21 (1st Cir. 2006).                   I conclude

that the instant facts failed to supply the district court with

this "reasoned basis."

            Although grabbing the victim's shoulder, stating that

"this is a holdup," and then grabbing the victim's handbag and keys

could    certainly    meet   the   "force,    violence,       and   intimidation"

element of the carjacking statute, the Supreme Court has indicated

that more is needed to satisfy the specific intent element of the

statute.     See United States v. Holloway, 

, 11 (1999)

("While an empty threat, or intimidating bluff, would be sufficient




                                       -11-
to satisfy the latter element, such conduct, standing on its own,

is not enough to satisfy § 2119's specific intent element.").

               Our cases regarding the factual sufficiency of a plea or

the evidentiary sufficiency of a conviction in this context have

detailed far more evidence of an intent to inflict serious bodily

harm,       often   involving   explicit    threats   using   firearms.3   I

acknowledge that the more egregious conduct in those cases does

not, by itself, make our case distinguishable. However, I disagree

that the physical assault, Merced-Rodríguez's statement to the

victim that "this is a holdup," as well as the inoperable gun

tossed by his co-defendant upon fleeing the scene provides the

reasoned basis to show that Merced-Rodríguez intended to inflict

serious bodily harm to effectuate the carjacking.             In my view, the



        3
      For example, in Matos-Quiñones, two co-defendants argued that
they did not possess the specific intent required by the carjacking

. With respect to one of the defendants,
the court concluded that the intent element was satisfied as the
"[t]he presence of ammunition, the death threats, and the fact that
he eventually did kill the victim, provide[d] a rational basis to
believe that [the defendant] was willing to fire his gun if
necessary to steal the car." 

in original).
The court explained that "[t]o take the victim's car, [the
defendant] pressed a loaded handgun against the victim's body and
threatened the victim with death."      

defendant, the court noted that the intent element was met as the
defendant "threatened the victim with a handgun at the moment of
the carjacking . . . [and] later demonstrated his willingness to
inflict violent harm when he struck the victim with his handgun."

also United States v. Lebrón-Cepeda, 

,
57 (1st Cir. 2003) (conditional intent to kill could be inferred as
to two defendants where one "placed a loaded and cocked revolver
against [the victim's] head at the inception of the carjacking and
verbally threatened him").

                                     -12-
fact that the gun was inoperable, that it was not used in the

threat, and that Merced-Rodríguez and his co-defendant fled upon

hearing the victim scream –- a reaction quite foreseeable in the

course of a carjacking -- indicate Merced-Rodríguez's total lack of

intent to inflict serious bodily harm at the moment of demanding

the car.

            Even when considering Merced-Rodríguez as an aider or

abettor    responsible   for   his   co-defendant's   inoperable   gun,   I

disagree that there was a sufficient factual basis for the intent

element.    Notably, our case law in this context has focused on

evidence from which it could be inferred that the aider and abettor

knew of the gun and that it would be used.4       Here, the stipulated

facts do not point to any such evidence.

            Because of my concerns regarding the factual basis of the

specific intent element in this case, I conclude that there was not

a reasoned basis to believe that the defendant actually committed

the crime to which he is admitting guilt.       Thus, I believe this to

be the rare case where plain error exists.            Applying the plain



     4
      See United States v. Otero-Méndez, 

, 52 (1st Cir.
2001) (requisite intent found where defendant knew to a "practical
certainty" that his companion intended serious bodily injury or
death based on the fact that his companions had guns when entering
his car and that they shot victim immediately upon exiting
defendant's car); United States v. Gandía-Maysonet, 

, 6-7
(1st Cir. 2000) (requisite intent found where it was reasonable to
infer defendant knew companion carjacker had a gun because they
obtained the gun together and it could be inferred that defendant
knew the gun would be fired, as it eventually was).

                                     -13-
error factors, the district court's error in accepting the plea

affected Merced-Rodríguez's substantial rights because, from my

reading of the record, there was a reasonable probability that he

would not have pled guilty to the crime had the district court not

committed this error.      Also, I conclude that the district court's

error affected the integrity of the judicial proceedings.

            Finally, and for similar reasons, I believe it would be

a miscarriage of justice to enforce the waiver provision contained

in   the   plea   agreement.5   The   clarity   of   the   error   and   its

significant impact on Merced-Rodríguez outweighs any prejudice to

the government and his acquiescence in the result.

            For the foregoing reasons, I respectfully dissent.




      5
      I note that some of our sister courts have held that it is
appropriate to review a plea agreement in cases involving factual
insufficiency claims of a plea irrespective of whether a defendant
signed a waiver of appeal provision. See United States v. Adams,

, 497 (2d Cir. 2006) (stating that despite a waiver
provision "a defendant retains the right to contend that there were
errors in the proceedings that led to the acceptance of his plea of
guilty, and he may argue that the district court failed to satisfy
the requirement that there is a factual basis for the plea.")
(internal quotation marks omitted); United States v. Baymon, 

, 727 (5th Cir. 2002) ("[E]ven if there is an unconditional
plea of guilty or a waiver of appeal provision in a plea agreement,
this Court has the power to review if the factual basis for the
plea fails to establish an element of the offense which the
defendant pled guilty to."), quoted in United States v.
Hildenbrand, 

, 474 (5th Cir. 2008).

                                  -14-