United States v. Merced-Rodriguez

Not for Publication in West's Federal Reporter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
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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, 257 F.3d 14 (1st Cir. 2001).
The defendant must have entered the plea knowingly and voluntarily.
Id. at 24. To 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. Id. We may refuse to honor the waiver if
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denying the right to appeal would effect a “miscarriage of
justice.” Id. at 25.
Merced-Rodríguez 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.” Id. On appeal,
“[t]he 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.” Teeter, 257 F.3d at 24. The district court must
“inquire specifically at the change-of-plea hearing into any waiver
of appellate rights.” Id.At the plea 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.
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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.” Id. at 25. While 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.” Id. Therefore, the statement 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, 449 F.3d 258 (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.” Id. at 261.
Plea agreements entered into knowingly and voluntarily
are presumptively valid, but the court of appeals may not enforce
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the waiver if doing so would work a miscarriage of justice.
Teeter, 257 F.3d at 25-26. 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.
Id. at 26. We noted that the miscarriage-of-justice exception
would “be applied sparingly and without undue generosity.” Id.Here, Merced-Rodríguez argues 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. Id.“At its most 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, 403 F.3d
33, 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.” Id. “The component facts may come either from the
defendant’s admissions and concessions or from credible evidence
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proffered by the government and not contradicted by the defendant.”
Id.Merced-Rodríguez did not present the issue of an
insufficient factual basis to the district court and therefore the
standard of review is plain error. Id. To show plain 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, 520 U.S.
461, 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, 542 U.S. 74, 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, 526 U.S. 1 (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
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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.” Id. at 3. In 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." Id. at 11-12(emphasis 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. 322 F.3d 110, 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.”
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Id. at 14 (quoting United States v. Otero-Méndez, 273 F.3d 46, 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. Id.Subsection (2) elevates the penalty to 25 years if serious bodily
injury (as defined in § 1365) or death results. Id. Although the
indictment 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
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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.
Teeter, 257 F.3d at 26. 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-
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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, 456 F.3d 14, 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, 526 U.S. 1, 11 (1999)
("While an empty threat, or intimidating bluff, would be sufficient
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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
statute. 456 F.3d at 14. 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." Id. at 21 (emphasis 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." Id. Regarding the other
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."
Id. at 22. See also United States v. Lebrón-Cepeda, 324 F.3d 52,
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").
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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, 273 F.3d 46, 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, 227 F.3d 1, 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).
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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,
448 F.3d 492, 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, 312
F.3d 725, 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, 527 F.3d 466, 474 (5th Cir. 2008).
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