United States v. Matos-Quinones

United States Court of Appeals
For the First Circuit

Nos. 04-1992
04-1993

UNITED STATES OF AMERICA,

Appellee,

v.

YAMIL MATOS-QUIÑONES
and
JORGE ALBERTO ORTIZ-FELICIANO

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

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

Before

Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.

Nelson Pérez-Sosa, Assistant United States Attorney, with whom
H.S. García, United States Attorney, was on brief, for the United
States.
Raymond E. Gillespie for Yamil Matos-Quiñones.
Elaine Pourinski for Jorge Alberto Ortiz-Feliciano.

August 2, 2006
 LIPEZ, Circuit Judge. Yamil Matos-Quiñones and Jorge

Alberto Ortiz-Feliciano each pled guilty to one count of carjacking

with intent to cause death or serious bodily harm, resulting in

death. 18 U.S.C. § 2119(3). The victim was a sailor in the United

States Navy, stationed in Puerto Rico. The district court

sentenced both defendants to life imprisonment. The defendants now

claim that the district court misunderstood and failed to explain

the intent element of § 2119(3). They argue that, given a proper

understanding of that intent element, the district court would not

have found a rational basis for their pleas. They also contend

that if the district court had explained the intent element of the

carjacking charge as the Supreme Court explained it in Holloway v.

United States, 526 U.S. 1 (1999), they would not have pleaded

guilty. Defendant Matos-Quiñones alleges an additional error:

that the government violated its plea agreement with him by urging

the judge to impose a life sentence rather than a term of years.

We affirm.

I.

We draw the facts from the change of plea hearing, the

pre-sentence report, and the factual stipulation agreed to by the

government and defendant Matos-Quiñones. See United States v.

Colón-Solis, 354 F.3d 101, 102 (1st Cir. 2004). We leave some

details for discussion in connection with the defendants'

allegations of error.

-2-
 On a mission for their colleagues in the illegal drug

business, the defendants were looking for a sports utility vehicle

to steal. They saw a Toyota they liked outside a video rental

store in Fajardo, Puerto Rico. When the Toyota’s owner emerged

from the store, the defendants approached him. Both defendants

brandished handguns. Defendant Ortiz-Feliciano pressed his handgun

against the victim's back and said, according to the FBI agent who

investigated the crime, "get in the car if you want to live." The

defendants seized the keys to the Toyota and ordered the victim, at

gunpoint, to lie down in the rear of the vehicle. They then drove

the stolen Toyota towards Rio Grande.

While driving, the defendants asked the victim where he

lived. He said that he was a native of North Carolina but was

living at the Navy base in Ceiba. Once Ortiz-Feliciano realized

that the victim was a sailor, he decided to kill him. Several

minutes later, the defendants stopped in a wooded area. When the

victim attempted to escape, Matos-Quiñones hit him with his

handgun. The defendants then led the victim into the nearby woods.

Matos-Quiñones removed a piece of jewelry from the victim's person

as the victim pleaded for his life. Then Ortiz-Feliciano shot the

victim in the back of the head.

The defendants soon were apprehended and confessed

essentially to the facts outlined above. Initially, Ortiz-

Feliciano told investigators that Matos-Quiñones attempted to shoot

-3-
the victim but that his gun had jammed. However, Matos-Quiñones

denied either attempting to shoot the victim or intending that he

be killed. Federal authorities charged each defendant with aiding

and abetting the other in one count of carjacking with intent to

cause death or serious bodily injury, and two counts of firearms

violations. After consultation with counsel, the defendants agreed

to plead guilty to the carjacking count. In exchange, the

government pledged not to seek the death penalty, to dismiss the

firearms charges, to recommend a sentencing guideline level of 40

for both defendants, and to stipulate that Matos-Quiñones "was not

the shooter of the victim and did not at any time intend that the

victim be killed."

II.

This case involves the relatively complex intent element

of § 2119, the federal carjacking statute, which the parties

interpret differently. The arguments also reveal some confusion as

to whether Matos-Quiñones's indictment as an aider and abettor

somehow changes that intent element. We provide some preliminary

explanations before addressing the defendants' arguments.

A. The Carjacking Statute

The statute to which the defendants pled guilty, 18

U.S.C. § 2119, reads:

Whoever, with the intent to cause death or
serious bodily harm takes a motor vehicle that
has been transported, shipped, or received in
interstate or foreign commerce from the person

-4-
 or presence of another by force and violence
or by intimidation, or attempts to do so,
shall . . .

(3) if death results, be fined under this
title or imprisoned for any number of years up
to life, or both, or sentenced to death.

Contrary to the suggestion of the government, this statute is not

a felony murder analog.1 See United States v. Rosario-Díaz, 202

F.3d 54, 63 (1st Cir. 2000) ("[C]arjacking is a specialized

offense, requiring a specific criminal act and a narrow mens

rea."). Even "if death results," the statute requires "intent to

cause death or serious bodily harm." A felony murder statute is

defined by the absence of any such intent element.2 Consequently,

1
The government argues that "Matos-Quiñones overlooks the
operation of the felony-murder rule," and that he "could be found
guilty of first-degree murder . . . without any finding as to
premeditation or a specific intent to kill." That statement is
misleading. Federal law does incorporate a traditional felony-
murder rule for homicides committed in federal enclaves and other
places where the federal government has special law enforcement
responsibility. See 18 U.S.C. § 1111 (federal murder statute); 18
U.S.C. § 7 (defining "the special maritime and territorial
jurisdiction of the United States," in which the federal murder
statute applies). However, the defendants were not indicted for
violating § 1111.
The only potential applicability of the felony-murder rule
here was in the sentencing proceedings. That is because the
sentencing guidelines reference the federal murder statute in
connection with calculations of the base offense level for
carjacking crimes. See United States v. Martinez-Bermúdez, 387
F.3d 98, 100-101 (1st Cir. 2004) (explaining that the offense
guideline for carjacking is U.S.S.G. § 2B3.1(c), which in turn
references U.S.S.G. § 2A1.1 for offenses that would constitute
murder under 18 U.S.C. § 1111 had they occurred "within the special
maritime and territorial jurisdiction of the United States").
2
For instance, 18 U.S.C. § 1111 defines a homicide as first-
degree murder if it was "committed in the perpetration of . . .
-5-
the carjacking charges against the defendants required the

government to prove not only that the defendants committed a

carjacking and that they killed the victim, but also that they

acted "with intent to cause death or serious bodily harm."3

1. "Conditional Intent"

In Holloway, the Supreme Court confronted the meaning of

the phrase "with the intent to cause death or serious bodily harm"

in the carjacking statute. The question in Holloway was "whether

that phrase requires the government to prove that the defendant had

an unconditional intent to kill or harm in all events, or whether

it merely requires proof of an intent to kill or harm if necessary

to effect a carjacking." 526 U.S. at 3. The Court answered that

question as follows:

The specific issue in this case is what sort
of evil motive Congress intended to describe
when it used the words "with the intent to
cause death or serious bodily harm" . . ..
More precisely, the question is whether a
person who points a gun at a driver, having
decided to pull the trigger if the driver does
not comply with the demand for the car keys,
possesses the intent, at that moment, to

robbery." The federal robbery statute, 18 U.S.C. § 2111, contains
no requirement that the perpetrator intend to inflict bodily injury
or death. So, under the federal felony-murder rule, a defendant
can be convicted of first-degree murder even though he never
intended (even conditionally) to inflict physical harm on the
victim. That is not the case under the carjacking statute.
3
There has been at least one failed attempt to abolish the
"intent to cause death or serious bodily harm" requirement from the
carjacking statute. See H.R. 4472, § 803(a), 109th Congress, 1st
Session (2005).
-6-
 seriously harm the driver. In our view, the
answer to that question does not depend on
whether the driver immediately hands over the
keys or what the offender decides to do after
he gains control over the car. At the
relevant moment, the offender plainly does
have the forbidden intent.

Id. at 6-7. In short, if this case had gone to trial, the

government would have had to prove that the defendants a) took or

attempted to take the victim's car through force and violence or by

intimidation, b) that they acted with conditional or unconditional

intent to cause death or serious bodily harm, and c) that death

resulted.

2. The "Relevant Moment" for Conditional Intent

We have encountered cases, including this case, where a

carjacking defendant is accused of stealing a car, taking its

driver as a hostage, and later killing or harming the driver even

though the defendant already was in control of the car. See, e.g.,

United States v. Lebrón-Cepeda, 324 F.3d 52, 56-57 (1st Cir. 2003)

(concerning a defendant who argued that his intent to seriously

harm or kill the victim had not developed until after he had seized

control of the victim's car and realized that the victim was a

police officer); United States v. Evans-Garcia, 322 F.3d 110, 112-

13 (1st Cir. 2003) (same). In these cases, defendants have

suggested that they were not guilty of carjacking because their

intent to harm or kill the victim did not exist at the beginning of

the carjaking. See id. at 114. In other words, these defendants

-7-
contend that they could not be found guilty of carjacking if a jury

finds that their intent to kill or seriously harm the driver

developed only after the car had been taken. This interpretation

of the carjacking statute stems from the several references in

Holloway, as in the quotation above, to the carjacking defendant's

intent as of the "moment" of a carjacking. The Court summarized

its holding as follows:

The intent requirement of § 2119 is satisfied
when the Government proves that at the moment
the defendant demanded or took control over
the driver's automobile the defendant
possessed the intent to seriously harm or kill
the driver if necessary to steal the car (or,
alternatively, if unnecessary to steal the
car).

Holloway, 526 U.S. at 12 (emphasis added).

The defendants contend that we have interpreted the

above-quoted language in Holloway to mean that a defendant is not

guilty of carjacking if his intent to kill or seriously harm the

driver develops only after he has stolen the driver's car and taken

the driver as a hostage. See Rosario-Díaz, 202 F.3d at 63 ("[T]he

mental state required by the statute ('intent to cause death or

serious bodily harm') is measured at the moment that the defendant

demands or takes control of the vehicle."). Other circuits

addressing this issue have decided that intent in a carjacking case

must be measured at "the precise moment [the defendant] demanded or

took control over the car." United States v. Harris, 420 F.3d 467,

478 (5th Cir. 2005) (internal quotation marks omitted); see also

-8-
United States v. Applewhaite, 195 F.3d 679, 685 (3d Cir. 1999)

("[T]he statute directs the factfinder's attention to the

defendant's state of mind at the precise moment he demanded or took

control over the car."). See also Hornby, Pattern Criminal Jury

Instructions for the District Courts of the First Circuit, 2005

R e v i s i o n s , 1 5 7 , a v a i l a b l e a t

http://www.med.uscourts.gov/practices/Criminal_Jury_Instructions.

pdf (last visited July 6, 2005) (citing Rosario-Díaz, 202 F.3d at

63 for the requirement that the carjacking defendant "intended to

cause death or serious bodily harm at the time [he/she] demanded or

took control of the motor vehicle").

The government takes a different view, arguing that the

statute applies as long as the proscribed intent existed at any

time while the defendants had control over the victim and his car.

To that end, the government urges us to adopt a position set forth

in a concurring opinion by a member of our court: that Holloway

should not "be read to limit the jury's focus to the commencement

of the carjacking in cases like this one, which . . . involve

takings [of hostages] that occur over some period of time."

Lebrón-Cepeda, 324 F.3d at 63 (Howard, J., concurring) (internal

quotation marks omitted).4

4
We also said the following in Ramos Burgos v. United States,
313 F.3d 23, 30 n.9 (1st Cir. 2002):

We do not here set forth the temporal limits of a
carjacking under § 2119. But we reaffirm, without
-9-
 As we will explain, the facts of this case, like those in

Lebrón-Cepeda, do not require us to resolve the question whether

the intent element for carjacking must be measured at the

commencement of a prolonged carjacking. Accordingly, we will

simply assume without deciding that the defendants' view of the

issue is correct.

B. Liability as an Accomplice in a Carjacking Case

The indictment reads that "aiding and abetting each other

with the intent to cause death and serious bodily injury, [the

defendants] did take a motor vehicle . . . from [the victim], by

force and violence . . .." This charge indicted both defendants as

principals and as aiders and abettors. See, e.g., United States v.

Bennet, 75 F.3d 40, 47-48 (1st Cir. 1996) (analyzing a similar

indictment). As it turns out, both defendants pled guilty as

principals. There was, as we will explain, an ample factual basis

for those pleas.

However, unwilling to fully acknowledge his culpability

as a principal, Matos-Quiñones argues that the stipulation that he

"was not the shooter of the victim and did not at any time intend

that the victim be killed" means that he did not share Ortiz-

Feliciano's criminal intent and could not be found guilty as Ortiz-

Feliciano's accomplice. It is true that an aider and abettor

hesitation, that the commission of a carjacking continues
at least while the carjacker maintains control over the
victim and her car.
-10-
"'must share in the principal's essential criminal intent.'"5

United States v. Tarr, 589 F.2d 55, 59 (1st Cir. 1978) (quoting

United States v. Sanborn, 563 F.2d 488, 491 (1st Cir. 1977)). See

also, e.g., LaFave, Substantive Criminal Law, § 13.2(b) 2d ed.

(2003) (an accomplice is liable only when he shares the "requisite

mental state" for the principal's crime); Evans-Garcia, 322 F.3d at

314 ("The aider and abetter must have shared the principal's

criminal intent."); United States v. Loder, 23 F.3d 586, 591 (1st

Cir. 1994).6 If § 2119 required proof of intent to kill, Matos-

Quiñones, who "did not at any time intend that the victim be

killed," could no more be guilty as an aider and abettor than he

could as a principal.7 However, the carjacking statute makes proof

5
The challenge in aiding and abetting cases is framing this
"vital element" for the jury. See Tarr, 589 F.2d at 59-60; see
also United States v. Medina-Román, 376 F.3d 1, 3-4 (1st Cir. 2004)
(discussing the historical basis for our aiding and abetting
standard); United States v. Geronimo, 330 F.3d 67, 75 (1st Cir.
2003) (discussing our pattern jury instructions on aiding and
abetting); United States v. Otero-Méndez, 273 F.3d 46, 52 (1st Cir.
2001) (discussing aiding and abetting liability for carjacking);
United States v. Spinney, 65 F.3d 231, 234-35 (1st Cir. 1995)
(recognizing that the two elements of aiding and abetting liability
are that the principal committed the charged crime and that the
accomplice "became associated with [the principal's criminal]
endeavor and took part in it, intending to ensure its success").
6
Where the mental state required of the principal is less
than specific intent, the same is true of the mental state of the
aider and abettor. See Geronimo, 330 F.3d at 74.
7
The parties understand the stipulation to mean that Matos-
Quiñones never had even a conditional intent to kill the victim.
The government does not suggest that the stipulation could be read
to mean that Matos-Quiñones did not want to kill the victim, but
was willing to do so in order to steal the car.
-11-
of an intent to "seriously harm" the driver sufficient to impose

liability. Holloway, 526 U.S. at 11. Matos-Quiñones's intent to

inflict serious bodily harm on the victim was not the subject of

any stipulation, and he could be guilty as a principal or as an

aider and abettor on the basis of such intent.

III.

We first address the overlapping issues common to both

defendants: whether there was a factual basis for the intent

element of the carjacking charge and whether any errors in the plea

colloquy prevented a knowing and voluntary plea. We then address

Matos-Quiñones's claim that the government violated its plea

agreement with him.

A. The Plea Colloquy

1. Standard of Review

Neither defendant objected to the district court's plea

colloquy before taking this appeal. Indeed, while more than a year

and a half passed between the guilty pleas and the sentencing

hearings, neither defendant sought to withdraw his plea during that

period. Accordingly, "we review only for plain error." United

States v. Morrisette, 429 F.3d 318, 322 (1st Cir. 2005).8 To earn

8
If the defendants had "call[ed] the district court's
attention to the alleged errors in the plea proceedings," our
review would be for abuse of discretion. United States v. Delgado-
Hernández, 420 F.3d 16, 19 (1st Cir. 2005). The abuse of
discretion standard also would apply if the defendants had made a
motion after the plea hearing, but before sentencing, to withdraw
their pleas pursuant to Rule 11(d)(2)(B). See United States v.
-12-
relief, the defendants must show (1) that an error occurred, and

that the error (2) was "clear or obvious," (3) affected their

"substantial rights," and (4) "seriously impaired the fairness,

integrity, or public reputation of judicial proceedings." United

States v. Duarte, 246 F.33 56, 60 (1st Cir. 2001). To meet prong

three, each defendant "is obliged to show a reasonable probability

that, but for the error, he would not have entered the plea."

United States v. Dominguez Benitez, 542 U.S. 74, 76 (2004).

2. Basis in Fact for the Pleas

The defendants contend that the district court violated

Fed. R. Crim. P. 11 by accepting their guilty pleas in the absence

of a factual basis for the intent element of the carjacking charge.

Their claim is that they did not have any intent to harm or kill

the victim until after they had seized his car and learned while

driving towards Rio Grande that he was a sailor. Hence, they

argue, their intent to harm or kill did not meet the "at the

moment" requirement of Holloway. As we indicated above, we will

assume the validity of the defendants' reading of Holloway.

Rule 11 requires that "[b]efore entering judgment on a

guilty plea, the court must determine that there is a factual basis

for the plea." Fed. R. Crim. P. 11(b)(3). We have explained that

the district court "has a duty," in plea proceedings, "to ascertain

whether the record permits a conclusion that the plea has a

Mescual-Cruz, 387 F.3d 1, 6 (1st Cir. 2004).
-13-
rational basis in fact." United States v. Negrón-Narváez, 403 F.3d

33, 37 (1st Cir. 2005). However, Rule 11 does not require "a test

of guilt versus innocence," id., much less proof "'beyond a

reasonable doubt that the defendant is in fact guilty,'" id.

(quoting United States v. Webb, 433 F.2d 400, 403 (1st Cir. 1970)).

The idea is for the district court to ensure that there is, on the

record as it stands at the time of the plea, a reasoned basis to

believe that the defendant actually committed the crime to which he

is admitting guilt. See United States v. Cheal, 389 F.3d 35, 41

(1st Cir. 2004). The facts relevant to this inquiry "may come

either from the defendant's admissions and concessions or from

credible evidence proffered by the government and not contradicted

by the defendant." Negrón-Narváez, 403 F.3d at 37.

First, as to Ortiz-Feliciano, the evidence proffered by

the government easily met the requisite standard, even under his

interpretation of the law. To take the victim's car, Ortiz-

Feliciano pressed a loaded handgun against the victim's body and

threatened the victim with death. The presence of ammunition, the

death threats, and the fact that he eventually did kill the victim,

provide a rational basis to believe that Ortiz-Feliciano was

willing to fire his gun if necessary to steal the car. See Lebrón-

Cepeda, 324 F.3d at 56-57 (1st Cir. 2004) (holding that conditional

intent to kill could be inferred as to two defendants from fact

that one of the defendants "placed a loaded and cocked revolver

-14-
against [the victim's] head . . . and verbally threatened him").

See also United States v. Jones, 188 F.3d 773, 777 (7th Cir. 1999)

(holding that conditional intent could be inferred from brandishing

of handgun and death threats).

The stipulation between the government and Matos-Quiñones

precludes any rational basis to believe that he, too, had a

conditional intent to kill the victim. However, as we indicated

above, the intent element of the carjacking statute requires that

"at the moment the defendant demanded or took control over the

driver's automobile the defendant possessed the intent to seriously

harm or kill the driver if necessary to steal the car." Holloway,

526 U.S. at 11 (emphasis added). The record provides a factual

basis that Matos-Quiñones had the requisite intent "to seriously

harm." Like Ortiz-Feliciano, he threatened the victim with a

handgun at the moment of the carjacking. He later demonstrated his

willingness to inflict violent harm when he struck the victim with

his handgun.

In short, the record provided an adequate basis for the

district court to conclude that both defendants were guilty as

principals in the carjacking death of the victim. Both defendants

participated in taking by force and intimidation a vehicle subject

to the jurisdiction of the federal government. Both defendants

possessed "at the moment [they] demanded or took control over the

driver's automobile . . . the intent to seriously harm or kill the

-15-
driver if necessary to steal the car." The victim's death

resulted. These are the elements that the statute requires. See

18 U.S.C. § 2119(3).

3. A Knowing and Voluntary Plea

Rule 11 requires that the district court ensure that a

defendant's guilty plea is knowing and voluntary. The due process

clause requires the same. See, e.g., Delgado-Hernández, 420 F.3d

at 19. "[B]ecause a guilty plea is an admission of all of the

elements of a formal criminal charge, it cannot be truly voluntary

unless the defendant possesses an understanding of the law in

relation to the facts." McCarthy v. United States, 394 U.S. 459,

466 (1969). Accordingly, Rule 11 explicitly requires that the

district court "inform the defendant of, and determine that the

defendant understands . . . the nature of each charge to which the

defendant is pleading." Fed. R. Crim. P. 11(b)(1)(G). The

district court's obligation "includes ensuring that the defendant

understands the elements of the charges that the prosecution would

have to prove at trial." United States v. Gandia-Maysonet, 227

F.3d 1, 3 (1st Cir. 2000). Both defendants contend that the

district court failed to adhere to this requirement in its

explanation of § 2119's intent element. Matos-Quiñones also

asserts error in the district court's failure to define what it

means to be an aider and abettor.

The district court did not explain the intent element of

-16-
the § 2119 charge as it was defined in Holloway. Rather, the court

essentially read the indictment to the defendants, stating:

To be found guilty of this offense if a trial
were to be held, the Government had to -- must
prove beyond a reasonable doubt that you
unlawfully, and aiding and abetting each
other, with intent to cause death and serious
bodily injury, did take this motor vehicle
that has been identified in Count One of the
indictment that had been transported, shipped,
or received in interstate or foreign commerce,
from [the victim], by force and violence, and
inflicted serious bodily injury on him, that
is, shooting and killing [the victim].

Even if this explanation of the intent element constituted error

(an issue we do not decide),9 the defendants cannot satisfy the

third prong of the plain error test. As we stated above, to do so

they must demonstrate a "reasonable probability" that they would

not have pleaded guilty if the district court had explained the

charges correctly. To this end, the defendants claim that they may

not have pleaded guilty if they had known that they could have

defended themselves at trial on the theory that they had no intent

to harm or kill the victim before they realized, some minutes after

"the moment" they took the car, that the victim worked for the

9
But we do add two details. The district court should not
have said that the statute required proof that the defendants had
an intent to cause death and serious bodily harm. As we have
explained, the statute requires an intent to cause death or serious
bodily harm. Also, Matos-Quiñones's argument about the district
court's failure to explain aiding and abetting liability is
unpersuasive. As we explained above, Matos-Quiñones was liable as
-- and pled guilty as -- a principal. There was no need for the
district court to explain a superfluous legal concept at the plea
colloquy.
-17-
Navy. Specifically, Matos-Quiñones says (and Ortiz-Feliciano joins

this argument): "had he fully understood that a jury would need to

find beyond a reasonable doubt that he intended to kill or at least

seriously injure the driver at the moment of seizing the vehicles,

there is a reasonable likelihood, based on this record, that he

would not have pled guilty."

We find this argument implausible on two grounds, even

though we assume the validity of its premise about the relevant

law. First, as we have already explained, there was abundant

evidence that the defendants were willing to cause death or, in

Matos-Quiñones's case, serious harm to the victim at the moment

they demanded control over the car. Given this evidence against

them, the defendants could not possibly have thought that the

theory they now propose could have resulted in their acquittal.

Second, despite the brutality of their crime against the victim,

the defendants had obtained a plea agreement that precluded a death

sentence. (Both defendants had been declared "death eligible," and

had each been appointed two attorneys qualified to represent

defendants in capital cases.) The defendants would have faced the

possibility of a death sentence if they had chosen to go to trial.

Of course, the defendants were entitled to risk a trial against

long odds. They were also entitled to risk that a jury would not

impose a death sentence. But there is nothing in the record to

suggest that they would have been willing to take those risks if

-18-
the district court had explained the charge differently.

Certainly, the defendants have not shown "a reasonable probability

that, but for the [alleged] error, [they] would not have entered"

their pleas. Dominguez Benitez, 542 U.S. at 76.

B. Defendant Matos-Quiñones's Sentence

At his sentencing hearing, defendant Matos-Quiñones

objected to the government's argument that he should be assessed a

full share of responsibility for the victim's death. Although the

plea agreement allowed the government to make any sentencing

recommendation, Matos-Quiñones argued that the government's

argument was inconsistent with the government's stipulation that

Matos-Quiñones "was not the shooter of the victim and did not at

any time intend that the victim be killed." The government

countered that even after the plea agreement incorporating the

stipulation, it retained the right to argue that Matos-Quiñones was

fully culpable for his participation in the carjacking. The

district court reasoned that there was nothing in the plea

agreement and stipulation that required the government to surrender

its contention that Matos-Quiñones was fully liable for the

victim's death.

"[W]e hold prosecutors engaging in plea bargaining to the

most meticulous standards of both promise and performance," United

States v. Riggs, 287 F.3d 221, 224 (1st Cir. 2002) (internal

quotation marks omitted). Therefore, a defendant is entitled not

-19-
only to the government's "technical compliance" with its

stipulations but also to the "benefit of the bargain" struck in the

plea deal, United States v. Clark, 55 F.3d 9, 11 (1st Cir. 1995),

and to the good faith of the prosecutor, United States v. Frazier,

340 F.3d 5, 11 (1st Cir. 2003). With these principles in mind, we

have reviewed carefully the plea agreement and the transcripts of

the change of plea and sentencing hearings. Finding no

inconsistency between the government’s stipulation and its

sentencing argument, we conclude that the government's conduct at

the sentencing afforded Matos-Quiñones the "benefit of the bargain"

he had negotiated before pleading guilty.

By stipulating as it did, the government waived any right

to refer to evidence that Matos-Quiñones had attempted to kill the

victim and intended his death. Conversely, the stipulation allowed

Matos-Quiñones to make an impassioned argument to the district

court that he was not equally responsible for the victim's death.

Although this argument would have been available in any event, it

was far more effective than it otherwise would have been because of

the stipulation. As the transcript shows, the argument won the

serious attention of the district court.

On the other hand, the plea agreement incorporating the

stipulation did not require the government to concede that Matos-

Quiñones was less than fully liable for the crime to which he had

pleaded guilty. First, the district court was correct in observing

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that nothing in the stipulation precluded Matos-Quiñones's full

liability for the charged crime. Second, the government's

agreement with Matos-Quiñones, like its agreement with Ortiz-

Feliciano, stipulated a guideline sentence level of 40 and

prohibited the defendant from arguing for a downward departure.

The guidelines specifically authorize a departure in cases where

one defendant sentenced under the murder guidelines is less

culpable than his co-defendants. See U.S.S.G. § 2A1.1, application

note 1 (providing for a downward departure of as much as ten levels

when a defendant punishable under the first-degree murder guideline

is less than fully-culpable for the victim's death); U.S.S.G.

§ 2B3.1(c) (referencing § 2A1.1 for certain carjacking offenses).

That the agreement forbade Matos-Quiñones from arguing for a

downward departure on this ground emphasizes that the government

had not surrendered its right to argue that Matos-Quiñones could be

sentenced on the same terms as Ortiz-Feliciano.

In short, the stipulation allowed Matos-Quiñones to make

a more plausible argument that he should not be sentenced to the

same term as Ortiz-Feliciano. However, the plea agreement

incorporating the stipulation did not require the government to

concede this point, or to forego an argument to the contrary. The

fact that the stipulation did not help Matos-Quiñones avoid a life

sentence does not mean that the government delivered less than it

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had promised.

Affirmed.

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