           United States Court of Appeals
                       For the First Circuit

No. 10-1021

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

              JESÚS L. RODRÍGUEZ-MORALES A/K/A DANIEL,

                       Defendant, Appellant.


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

          [Hon. Francisco A. Besosa, U.S. District Judge]


                               Before

                        Lynch, Chief Judge,
               Torruella and Siler,* Circuit Judges.



     José R. Olmo-Rodríguez, for appellant.
     Julia M. Meconiates, Assistant United States Attorney, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellee.




                           July 26, 2011




*
    Of the Sixth Circuit, sitting by designation.
             TORRUELLA, Circuit Judge.          The appellant in this case

argues that he should be allowed to withdraw his guilty plea, and

that we should not enforce the waiver of appeal contained in his

plea agreement. Finding his claims unconvincing, we now affirm his

conviction and sentence.

                                       I.

             On March 30, 2009, an indictment was filed against

defendant-appellant,      Jesús   L.    Rodríguez-Morales    ("Rodríguez"),

charging him with two counts of unlawful possession with intent to

transfer five or more identification documents, two counts of

aggravated identity theft, and two counts of selling a social

security card.     Specifically, Rodríguez was accused of selling a

total   of   eighty-six   genuine      social   security   cards   and   birth

certificates to undercover agents during two separate incidents in

August 2008.

             On July 22, 2009, Rodríguez changed his plea to guilty on

one count of aggravated identity theft, based on an agreement

whereby the prosecution agreed to file a motion to dismiss the

remaining counts of the indictment. The plea agreement stated that

the guidelines sentence was the two-year term of imprisonment

required by the statute, 18 U.S.C. § 1028A.             The plea agreement

contained a waiver-of-appeal provision which stated that if the

court accepted the plea agreement and sentenced him according to

its   "terms,   conditions,   and      recommendations,"    then   he    would


                                       -2-
"waive[] and surrender[] his right to appeal the judgment and

sentence in this case."

            Rodríguez subsequently filed four pro se motions raising

various     contentions   regarding,       inter    alia,    his       attorney's

performance, computation of the applicable guidelines range, and

his lack of awareness of the consequences of pleading guilty to

aggravated identity theft.     The district court construed the first

two filings as motions to withdraw his guilty plea, and denied

them.     The district court responded to the last two filings by

explaining, via line order, that any issues would be discussed at

the upcoming sentencing hearing.

            A sentencing hearing was held on December 1, 2009.                  At

sentencing, the prosecutor stated that "[h]ad this case gone to

trial . . . [Rodríguez] was looking at a statutory maximum of 44

years and a guideline sentence minimum of 107 months with a

guideline sentence maximum of 131 months."           The court, as well as

defense     counsel,   immediately    concurred      in     the    prosecutor's

statement. Rodríguez subsequently addressed the court, and claimed

that he should not have been charged with aggravated identity

theft, as he had not sought to steal anyone's identity.                 The court

responded by clarifying that the statute in question (18 U.S.C. §

1028A) did not require that a defendant seek to assume another's

identity,    but   required   only   that    "you    transfer      a    means   of

identification of another person," which, the court pointed out,


                                     -3-
Rodríguez had just conceded he did.   No one, the court went on to

note, was accusing Rodríguez of assuming someone else's identity;

rather, he was accused of, and had pleaded guilty to, "using the

documents that belonged to another person -- or selling them to

another person for $2,000."   The court then sentenced Rodríguez to

two years' imprisonment, followed by a one-year term of supervised

release.   Rodríguez filed a notice of appeal the same day.1

                                II.

                                 A.

           The parties dispute the applicable standard of review.

The government argues it should be for abuse of discretion, whereas

Rodríguez argues it should be de novo.        As noted above, the

district court construed two of Rodríguez's pro se filings, entered

after the change-of-plea hearing but prior to sentencing, as

motions to withdraw the guilty plea, and denied them as such.

Generally speaking, appeals of a district court's decision to deny




1
   At oral argument defense counsel indicated that he had been
unable to reach his client for some time, and was not sure whether
he wished to further pursue this appeal.      On March 8, 2011, we
requested that the parties locate the defendant and seek
clarification from him on this matter.      On March 21, the U.S.
Attorney's office informed us that Rodríguez had been removed by
Immigration and Customs Enforcement to the Dominican Republic on
March 10, and that his present whereabouts are unknown. Defense
counsel was similarly unable to locate Rodríguez. In the absence
of a contrary indication by Rodríguez, we now resolve the merits of
the appeal.

                                -4-
a motion to withdraw is reviewed for abuse                               of discretion.2

See United States v. Rivera-Gonzalez, 626 F.3d 639, 643 (1st Cir.

2010) (reviewing claim that a guilty plea was entered without an

adequate      understanding           of     its        consequences      for      abuse   of

discretion); United States v. McMullin, 568 F.3d 1, 9 (1st Cir.

2009); United States v. Castro-Gómez, 233 F.3d 684, 686 (1st Cir.

2000); United States v. Santiago, 229 F.3d 313, 316 (1st Cir. 2000)

(noting, with respect to a claim that a guilty plea was not knowing

and intelligent under Federal Rules of Criminal Procedure Rule 11,

that review was for abuse of discretion).

              However, as we have previously noted, other standards

apply to certain sub-issues related to denials of motions to

withdraw.          "Abstract      questions        of    law     are   reviewed    de novo,

findings      of    raw    fact      are    tested       for     clear    error,    and    law

application        and    balancing        judgments       are    usually    reviewed      for

reasonableness."          United States v. Padilla-Galarza, 351 F.3d 594,

597 n.3 (1st Cir. 2003).              Rodríguez argues that whether his plea

was knowingly, intelligently and/or voluntarily tendered is a

question of law subject to de novo review.                         See United States v.

Ward,   518    F.3d       75,   80    (1st    Cir.       2008)     (citing      Marshall   v.

Lonberger, 459 U.S. 422, 431 (1983)); Wellman v. Maine, 962 F.2d

70, 72 (1st Cir. 1992); see also Sotirion v. United States, 617



2
   Rodríguez does not challenge the district court's construal of
two of the pro se motions as motions to withdraw his guilty plea.

                                             -5-
F.3d 27, 34 n.6 (1st Cir. 2010) (citing United States v. Goodson,

544 F.3d 529, 539 n.9 (3d Cir. 2008)) (noting, in the closely

related context of a challenge to a waiver of appeal in a plea

agreement, that a challenge premised on "the validity of the waiver

itself, not the Rule 11 colloquy," would be subject to de novo

review).

           We need not resolve this issue, as Rodríguez's claim

fails under any of the applicable standards.

                                      B.

           The gist of Rodríguez's argument is that the prosecutor

"drastically" overstated what his sentencing exposure would have

been had he stood trial and been convicted on all counts.

Appellant claims that had he stood trial and been convicted of all

counts, he was looking at a guidelines range of twenty-four to

thirty months.   He argues that the prosecutor's inflated estimate

of 107 to 131 months, agreed to by the court and by defense

counsel, induced him to agree to the government's proffer.              The

proffer recommended a two-year term of imprisonment, which is what

he ultimately received, once he decided to accept the government's

terms and plead guilty.       Rodríguez now claims that there was a

strong probability that, had he known the true extent of his

sentencing   exposure,   he   would    have   rejected   the   government's

proffer. As it is, he wound up accepting the government's proffer,

and waiving many of his rights, in return for little or no discount


                                  -6-
from what he would have received had he gone to trial and been

convicted on all counts.

           The government appears to concede that the prosecutor

overstated the defendant's potential exposure during the sentencing

hearing.   However, the government disputes that this overstatement

rendered Rodríguez's plea involuntary or unintelligent, and argues

that we should enforce the waiver-of-appeal provision of the plea

bargain.   The government also contests Rodríguez's calculation of

twenty-four to thirty months as the correct guidelines range for

conviction on all counts.   While the government does not provide a

specific range, it notes that his potential exposure on counts

three and four alone was forty-eight months. Counts three and four

alleged violations of § 1028A(a)(1), and this statute specifies

that "no term of imprisonment imposed under this section shall run

concurrently with any other term of imprisonment."     18 U.S.C. §

1028A(b)(2). Therefore, sentences based on any of the other counts

would have been imposed on top of any sentence for counts three and

four.3


3
    Rodríguez points out that a sentencing court may, in its
discretion, impose concurrent terms of imprisonment for multiple
violations of § 1028A. He speculates that because he was a first-
time offender, and because there are more egregious ways of
violating the statute, the sentencing court would have exercised
its discretion to impose concurrent rather than consecutive
sentences for counts three and four. For this reason, Rodríguez
claims that any sentence based on the other counts would have been
applied on top of a two-year, rather than (as the government
suggests) a four-year baseline, assuming convictions on counts
three and four.

                                -7-
              The   Federal   Rules    of    Criminal   Procedure   permit   a

defendant to withdraw a guilty plea after it has been tendered, but

prior to sentencing, for a "fair and just reason."             Fed. R. Crim.

P. 11(d)(2)(b).        The relevant factors in considering whether a

defendant has presented such a reason are "whether the plea was

voluntary, intelligent, knowing and complied with Rule 11; the

force of the reasons offered by the defendant; whether there is a

serious claim of actual innocence; the timing of the motion; and

any countervailing prejudice to the government if the defendant is

allowed to withdraw his plea."         Padilla-Galarza, 351 F.3d at 597;

see also Rivera-Gonzalez, 626 F.3d at 643.

              The validity of a waiver-of-appeal provision in a plea

bargain is reviewed under the three-part test set forth in United

States v. Teeter, 257 F.3d 14, 24-25 (1st Cir. 2001).               The Teeter

test   asks     whether   "(1)   the    written    plea   agreement    clearly

delineates the scope of the waiver; (2) the district court inquired

specifically at the plea hearing about any waiver of appellate

rights; and (3) the denial of the right to appeal would not

constitute a miscarriage of justice." United States v. Edelen, 539

F.3d 83, 85 (1st Cir. 2008); see also United States v. Isom, 580

F.3d 43, 50 (1st Cir. 2009).

              Although the standard for reviewing a denial of a motion

to withdraw a guilty plea differs from the standard for reviewing

the validity of a waiver-of-appeal provision, Rodríguez makes the


                                       -8-
same argument under these two standards.       He argues that the

prosecutor's misestimation of his probable guidelines range post-

trial rendered his plea involuntary, unknowing, and unintelligent.

Rodríguez argues that this both establishes a "fair and just"

reason to allow withdrawal of his guilty plea, and establishes that

there has been a miscarriage of justice under Teeter such that this

appeal must be allowed.4   In addressing this argument, we need not

assess the relationship between the standards governing waiver of

appeal and withdrawal of a plea.   It is clear that there has been

no miscarriage of justice within the meaning of our case law

governing waivers of appeal under Teeter, and that disposes of this

appeal.

          As the appellant rightly notes, the Supreme Court has

recognized that a guilty plea must be not just voluntary, but

knowing and intelligent as well, and that a defendant's "awareness

of the relevant circumstances and likely consequences" of his plea

bears on whether a guilty plea is "knowing" or "intelligent."

Brady v. United States, 397 U.S. 742, 748 (1970).      The Supreme

Court has also explained that "[t]he standard was and remains

whether the plea represents a voluntary and intelligent choice

among the alternative courses of action open to the defendant."

North Carolina v. Alford, 400 U.S. 25, 31 (1970).   More recently,


4
   The appellant does not contest the other elements of the Teeter
test, i.e., the scope of the waiver or the Rule 11 colloquy. He
limits his contention to Teeter's miscarriage of justice prong.

                                -9-
we have stated that "the accused must have understood the charges

against him and the spectrum of possible penalties to which an

admission of guilt will expose him." United States v. Jimenez, 512

F.3d 1, 3 (1st Cir. 2007).

            None of this helps the appellant.            The central hurdle

Rodríguez faces on appeal is that the prosecutor's statement to

which he draws our attention occurred at sentencing, i.e., months

after he had already decided to plead guilty.                  Rodríguez was

sentenced on December 1, 2009, but the change-of-plea hearing took

place approximately four months earlier, on July 22 of that year.

Therefore,    even   though   he    is    surely   correct   that   "erroneous

information" which "dramatically alter[s] the sentencing stakes for

the defendant" may bear on whether someone who has pleaded guilty

will be allowed to subsequently withdraw his plea, United States v.

Rivera-Maldonado, 560 F.3d 16, 21 (1st Cir. 2009), we do not see

how the misstatement identified by the appellant -- no matter how

egregious it may or may not have been -- could have affected his

decision to accept the government's proffer.5

            During the plea hearing, the district court ensured that

Rodríguez    understood what       he    was   being charged with     and   the

consequences of a guilty plea, and that he had discussed his

options with his attorney.         He admitted to committing the charged


5
   Rodríguez has not alleged that his decision to plead guilty was
affected by any purported misstatement by the prosecution prior to
sentencing.

                                        -10-
crimes, and stated that he understood the penalties he might

receive.6     Rodríguez does not claim, and the record does not

indicate, that the prosecutor advised him that the applicable

guidelines range was 107 to 131 months prior to or during the

change-of-plea hearing.

             The pro se motions filed by Rodríguez after the change-

of-plea hearing        do   not    undermine       this conclusion.      In those

motions, Rodríguez insisted that aggravated identity theft under

§ 1028A was not meant to apply to someone in his situation, and

that he should have been charged with a lesser offense, with

reduced sentencing exposure.                Nothing in these motions suggests

that his decision to plead guilty was obscured by misinformation as

to the sentence he might receive after trial.               In his pro se filing

of October 13, 2009, Rodríguez complains that the government's

offer of twenty-four months was too long, but that he was informed

by   his    attorney    that      if   he    did   not   accept   the   plea,   the

prosecutor's office could increase the sentence.7                  Rodríguez was


6
   This is not to say that there were no misstatements at the
change-of-plea hearing. During this hearing, the prosecutor stated
that the statutory penalty for Rodríguez's guilty plea under
§ 1028A was between two and fifteen years. As the government now
concedes, § 1028A provides a fixed term of two years for all non-
terrorism related offenses. However, Rodríguez does not argue that
his decision to accept the plea bargain was affected by this
misstatement, and we correspondingly deem any argument to that
effect waived.
7
  It is not clear whether Rodríguez, or his attorney, is referring
to the possibility of a harsher outcome after trial, or to the
possibility that the proffer might be replaced with a less

                                            -11-
not misinformed:     even if the parties disagree as to how much more,

it is undisputed that the charges Rodríguez faced did in fact

expose him to over twenty-four months' imprisonment.                   Rodríguez

complained in other pro se filings that his lawyer recommended that

he sign the plea agreement, despite the fact that the crime charged

was, in Rodríguez's view, inapposite to his case.               At no point in

these motions did Rodríguez assert that his decision to accept the

government proffer and plead guilty was influenced by a government-

induced misunderstanding of the sentence he could receive after

trial.8

             We conclude that, because the prosecutor's statement was

made months after the appellant decided to plead guilty, the

prosecutor's overestimate of the applicable guidelines range did

not   render     Rodríguez's    decision     to   plead    guilty      unknowing,

unintelligent or involuntary.         In light of this conclusion, the

dispute between the parties as to what the precise guidelines range

would     have   been,   had   appellant    proceeded     to   trial    and   been

convicted on all counts, is moot.




favorable one if he balked.
8
   The closest Rodríguez comes to making such an assertion is in a
statement contained in his notice of appeal, filed shortly after
sentencing, in which he stated that his lawyer never explained to
him the nature of § 1028A, and that "they could hit me with 0 to 15
years."

                                     -12-
                               III.

          For the reasons given above, the district court did not

abuse its discretion in denying Rodríguez's motions to withdraw his

guilty plea.   The same reasons lead us to believe that enforcing

the appellate waiver would not work a miscarriage of justice under

Teeter. We affirm Rodriguez's conviction and sentence, and dismiss

the appeal.

          So ordered.




                               -13-
