227 F.3d 1 (1st Cir. 2000)
UNITED STATES OF AMERICA, Appellee,v.DANIEL GANDIA-MAYSONET, Defendant, Appellant.
No. 98-1144.
United States Court of Appeals, First Circuit.
Heard May 8, 2000.Decided September 13, 2000.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. Salvador E. Casellas, U.S. District Judge.
Alexander Zeno, by appointment of the court, for appellant.
Camille Velez-Rive, Assistant United States Attorney, with  whom Guillermo Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant United States Attorney, Chief, Criminal  Division, were on brief for the United States.
Before: Selya, Circuit Judge,  Coffin, Senior Circuit Judge, and Boudin, Circuit Judge.
BOUDIN, Circuit Judge.


1
Daniel Gandia-Maysonet was  convicted upon a plea of guilty to one count of carjacking, 18  U.S.C. § 2119 (1994), and one count of using a firearm in  connection with that crime, 18 U.S.C. § 924(c)(1) (1994).  On this  appeal he seeks to set aside his plea.  Because no trial has been  held, there is no definitive version of the facts of the underlying  crime.  Based on Gandia's version and that of the government (to  which Gandia did not object), the essential outline of events is as  follows.


2
On March 20, 1995, in Vega Baja, in the Commonwealth of  Puerto Rico, Ivan Pizarro-Torres invited Gandia to take a drive and  then asked him to rob Victor Colon-Ortiz, a lottery ticket seller. Gandia said he would not do the robbery alone, so Ivan Pizarro  enlisted his cousin, Samuel Pizarro, to join in the scheme.  Ivan  Pizarro then drove Gandia and Samuel Pizarro to a point near  Colon's home and departed with his vehicle, leaving Gandia and  Samuel Pizarro with Ivan's pistol.  Gandia and Samuel Pizarro  circled the house, spotted Colon in his carport, and approached  him.


3
Samuel Pizarro announced that this was a hold-up; Colon  took out a knife and moved toward Samuel, and Samuel then shot  Colon five times, killing him.1  Colon's wife was also shot and  suffered serious injury but survived.  Samuel Pizarro proceeded to  drive Colon's car through a closed gate, and Gandia then joined  him.  After fleeing with Colon's car, the pair retrieved money from  the trunk of the car and shared it with Ivan Pizarro.  Some months  later, Gandia and another individual shot and killed Samuel  Pizarro.  Gandia is now serving a 30-year Commonwealth sentence for  that crime.


4
In December 1996, the government indicted Gandia and Ivan  Pizarro for carjacking and using a firearm in the course of  carjacking, directly and while aiding and abetting each other as  well as others not charged.  Samuel Pizarro was no longer available  as a witness, but Ivan Pizarro agreed to testify against Gandia,  and the government disclosed that it had recovered Gandia's  fingerprint from the trunk of Colon's car.  In light of this  evidence, Gandia and the government reached a plea agreement, which  provided for Gandia to plead guilty to both counts in exchange for  an agreed-upon sentence of 30 years for carjacking and a  consecutive 5-year sentence on the firearm count.


5
On May 12, 1997, the district court conducted a change-of-plea hearing and accepted Gandia's guilty plea under Rule 11 of  the Federal Rules of Criminal Procedure.  In the colloquy, Gandia  accepted as true the government's written version of facts attached  to the plea agreement, and he made a short statement inculpating  himself in the robbery.  After a presentence report, the court  imposed the agreed-upon sentence on October 7, 1997.  Gandia then  filed a notice of appeal.


6
Thereafter, Gandia's counsel filed an Anders brief,  pursuant to Anders v. California, 386 U.S. 738, 744 (1967).  In  response to this court's direction, Gandia's counsel briefed two  issues for our consideration.  One is whether Gandia's guilty plea  was invalid because the scienter element of the carjacking crime  was misstated at several points in the hearing, so that the plea  was not knowing and voluntary.  The other is whether the facts to  which Gandia admitted provide a sufficient factual basis for a plea  to the carjacking offense, as required by Federal Rule of Criminal  Procedure 11(f).


7
Appellate review of guilty pleas reflects a fairly  specialized body of doctrine.  Failures to comply with very  specific, yet technical, requirements of Rule 11 are often found  "harmless," Fed. R. Crim. P. 11(h).  E.g., United States v. McDonald, 121 F.3d 7, 11 (1st Cir. 1997), cert. denied, 522 U.S.  1062 (1998).  But, because a guilty plea is a shortcut around the  fact-finding process, reviewing courts have been willing to  intervene when an error in the guilty plea process arguably affects  a "core concern" of Rule 11.  United States v. Hernandez-Wilson,  186 F.3d 1, 5 (1st Cir. 1999).  This includes ensuring that the  defendant understands the elements of the charges that the  prosecution would have to prove at trial.  See United States v. Ferguson, 60 F.3d 1, 2 (1st Cir. 1995); United States v. Cotal-Crespo, 47 F.3d 1, 4-6 (1st Cir.), cert. denied, 516 U.S. 827  (1995).


8
We think that this core requirement has not been  satisfied here.  To sum up at the start, everyone involved--the  prosecutor, the district court and Gandia's counsel--misunderstood  the scienter element in the offense in a manner prejudicial to  Gandia; and although we think that the facts proffered at the Rule  11 hearing would have provided an adequate basis for accepting the  plea, the factual basis was not overwhelming as to the scienter  element.  In all, we are far from certain that Gandia would have  agreed to plead guilty if he had fully understood what the  government had to prove as to scienter.  Cf. United States v. Abernathy, 83 F.3d 17, 19 (1st Cir. 1996).


9
The original version of the carjacking statute enacted in  1992 required, as does the current version, that the defendant take  a motor vehicle "from the person or presence of another by force  and violence or by intimidation"; but in addition, it also required  that the defendant have possessed a firearm.  18 U.S.C. § 2119 &  note (1994).  In 1994, aiming to broaden the statute,2 Congress  struck the firearm requirement and substituted a requirement that  the defendant act with "the intent to cause death or serious bodily  harm."  Violent Crime Control and Law Enforcement Act of 1994, Pub.  L. No. 103-322, § 60003(a)(14) (internal quotations omitted). Thus, the statute now provides as follows:  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 or presence of another by  force and violence or by intimidation, or  attempts to do so, shall


10
(1)  be fined under this title  or imprisoned not more than 15  years, or both,


11
(2)  if serious bodily injury .  . . results, be fined under this  title or imprisoned not more  than 25 years, or both, and


12
(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.


13
18 U.S.C. § 2119 (1994) (emphasis added) (footnote omitted).


14
Gandia committed the Colon robbery six months after the  1994 amendment became effective, and the new indictment explicitly  alleged an intent to cause death or serious bodily harm.  However,  at the change-of-plea hearing, the district judge described count  one to Gandia and, separately, told him what the government would  have to prove to convict on count one.  In both instances, the  court said that the required intent was that Gandia "knowingly and  unlawfully" have taken the motor vehicle; nowhere did the court  tell Gandia that he would need to have intended to kill or cause  serious bodily harm.  Nothing in the factual scenario described by  the government or admitted by Gandia specifically referred to an  intent on Gandia's part to cause death or serious bodily harm.


15
The district court's error may well have been caused by  an earlier mistake by the prosecutor:  in both the plea agreement  and the appended government version of the facts, no reference  appears to any intent to cause death or bodily injury.  Instead,  both documents used the "knowingly and unlawfully" language that  reappeared in the judge's colloquy.  Thus, the indictment aside,  Gandia was misadvised four times as to the scienter requirement and  told that the only intent required of him was that he have  knowingly and unlawfully taken the car.


16
The error was less serious than might first appear because of the way in which the Supreme Court construed the new  scienter requirement last year.  See Holloway v. United States, 526  U.S. 1, 3 (1999).  Reading the statute in light of the amendment's  purpose, the Court held that the intent to cause death or serious  bodily harm could be satisfied not only by "actual" intent but also  by "conditional" intent, that is, by a willingness to cause death  or serious bodily harm if necessary to hijack the car.  Id. at 11-12.  Thus, if Samuel Pizarro were on trial and were shown to have  fired the pistol immediately before fleeing in the car, it would be  fairly easy to satisfy the requirement as to him.


17
Assuming Gandia's version of events, in which Samuel  Pizarro was the shooter, the case against Gandia is much closer. Of course, Gandia was involved in the robbery and, under  Commonwealth law, may have been responsible for the death.  But to  convict him of carjacking, the government under Holloway would have  to show at least a conditional intent to kill or cause serious  bodily injury.3  And while Samuel Pizarro showed his actual intent  to do so by shooting two victims, no equivalent evidence (so far as  we know) is available against Gandia.


18
This brings us to the question whether the misstatement  of the scienter standard at the Rule 11 colloquy was likely enough  to have influenced the plea so that the plea should now be set  aside.  It is settled law that an understanding of the charges by  the defendant is a critical element for a guilty plea.  Bousley v. United States, 523 U.S. 614, 618-19 (1998); United States v. Miranda-Santiago, 96 F.3d 517, 523 (1st Cir. 1996).  Here, the  indictment correctly tracked the statute, and Gandia agreed that  his counsel had discussed the indictment with him; but whatever  force this might have in other situations, see, e.g., United States v. Marrero-Rivera, 124 F.3d 342, 350 (1st Cir. 1997); United States v. Martinez-Martinez, 69 F.3d 1215, 1221-22 (1st Cir. 1995), cert.  denied, 517 U.S. 1115 (1996), the government in the plea agreement  and the judge in the hearing then proceeded affirmatively to  misstate the scienter element.


19
This repeated misstatement, if accepted by Gandia, could  well have encouraged him to plead guilty.  After all, a defendant  who honestly did not think that he had intended to kill or maim  might well bridle if told that he had to admit to this intent, even  with the Holloway gloss.  Of course, if the evidence of the  requisite intent were overwhelming--say, there was direct evidence  that Gandia himself had shot the victims--it would be hard to think  that the misstatement made any difference.  But here the evidence  of conditional intent is indirect and far from overwhelming.  Thus,  the error in the Rule 11 colloquy was not harmless.


20
Nonetheless, because Gandia did not object or raise the  scienter issue in the district court by a motion to withdraw the  plea, the objection has been forfeited unless the mistake  constitutes "plain error."  See Fed. R. Crim. P. 52(b);  United  States v. Olano, 507 U.S. 725, 731-32 (1993).  Admittedly, our case  law is not perfectly uniform on this point, but most of our Rule 11  cases have invoked the plain error standard;4 it accords with Rule  52 and its advisory committee notes; and it has been adopted by  most of the circuits that have addressed the issue in the Rule 11  context.  Among the other circuits, the Second, Fourth, Sixth,  Seventh and Eleventh have adopted the plain error standard in Rule  11 cases, while the harmless error standard has been adopted by the  Ninth Circuit and, in a footnote without analysis, by the D.C.  Circuit.  The case law is set forth in an appendix to this opinion.


21
The main practical difference between the two standards  is that plain error requires not only an error affecting  substantial rights but also a finding by the reviewing court that  the error has "seriously affect[ed] the fairness, integrity, or  public reputation of judicial proceedings."  Olano, 507 U.S. at 732  (quoting United States v. Young, 470 U.S. 1, 15 (1985)) (internal  quotation marks omitted); see also United States v. Carrington, 96  F.3d 1, 5 (1st Cir. 1996), cert. denied, 520 U.S. 1150 (1997).  The  "raise or waive" principle, here as with other kinds of error,  serves obvious interests of fairness and judicial economy. National Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627 (1st  Cir. 1995).  In sum, the less demanding test of harmless error is  used where an objection is made in the district court and thus  properly preserved for appeal; but the bar rises--and the stiffer Olano plain-error test applies--in the absence of an objection. See generally Fed. R. Crim. P. 52.


22
One reason why confusion may have arisen in connection  with guilty pleas is Fed. R. Crim. P. 11(h).  This provision, added  by amendment to the rule governing guilty pleas, says (in  substance) that harmless errors should be disregarded but says  nothing about plain error.  However, Rule 11(h) was added by  amendment for a narrow purpose: to make clear that a Rule 11 error can be harmless, "because some courts have read McCarthy [v. United  States, 394 U.S. 459, 471 (1969) ("[P]rejudice inheres in a failure  to comply with Rule 11 . . . ."),] as meaning that the general  harmless error provisions in Rule 52(a) cannot be utilized with  respect to Rule 11 proceedings."  Fed. R. Crim. P. 11(h) advisory  committee's notes.


23
The "fairness, integrity or reputation" plain-error  standard is a flexible one and depends significantly on the nature  of the error, its context, and the facts of the case.  United  States v. Young, 470 U.S. 1, 16 (1984); see Ferguson, 60 F.3d at 2-4.  In the taking of a guilty plea under Rule 11, the critical  concerns are that the plea be voluntary and that there be an  admission, colloquy, proffer, or some other basis for thinking that  the defendant is at least arguably guilty.  United States v. Santiago-Becerril, 130 F.3d 11, 20 (1st Cir. 1997).  Here, as we  have seen, the force of Gandia's plea in evidencing arguable guilt  was substantially undercut by the misstatement of the scienter  standard.  Where, in addition, the other evidence of scienter was  thin (although not beyond reasonable inference), we think that the  error was not merely "harmful" but also "plain under Olano,"  because it seriously affected the guilty plea colloquy's fairness  and integrity.


24
Gandia's remaining claim on this appeal is that, quite  apart from the scienter element, the trial court erred in finding  a factual basis for the plea.  Specifically, Gandia says that no  evidence exists that he intended to take Colon's car or that he had  a conditional intent to kill or cause serious bodily harm. Admittedly, nothing on either point is as conclusive as an  admission by Gandia or unequivocal conduct by him (such as  personally shooting Colon and taking his car).  But in our view  there was enough to permit the district court to accept a guilty  plea even if we assume, as we do, that Gandia's own statement of  guilt contributed nothing on the intent-to-kill-or-injure issue  (because of the misstatement of the scienter element).  See  generally Marrero-Rivera, 124 F.3d at 352; United States v. Piper,  35 F.3d 611, 614 (1st Cir. 1994), cert. denied, 513 U.S. 1158  (1995).


25
To begin with the seizure of Colon's car, it is true  that, under Gandia's version of the facts, Gandia entered it only  after Samuel Pizarro had driven it through the gate.  But Gandia  stood back only to let Samuel break the gate; and he admitted  during the colloquy with the district judge that he had "knowingly"  taken the motor vehicle.  He now says that seizing the car was the  impulsive act of his partner, but the claim of impulsiveness is at  least debatable since, even under Gandia's version of the facts,  Ivan Pizarro had "left" his cousin and Gandia at the scene, with no  means of swift escape except to take Colon's car.


26
As for the conditional intent to kill or cause serious  bodily harm, the government's statement of facts, which Gandia  acknowledged to be true, said that, on the day of the robbery,  Gandia and Samuel Pizarro obtained the pistol from Ivan Pizarro. Whether or not the weapon was given directly to Samuel Pizarro, it  is reasonably inferrable that Gandia at least knew Samuel was armed  with a weapon intended to be available in the robbery.  Possibly  Gandia thought that it would only be used to frighten. Nevertheless, in context, one might infer that Gandia must have  known that the pistol would be fired, if necessary, as indeed it  was.


27
On a plea, the question under Rule 11(f) is not whether  a jury would, or even would be likely, to convict:  it is whether  there is enough evidence so that the plea has a rational basis in  facts that the defendant concedes or that the government proffers  as supported by credible evidence.  See Marrero-Rivera, 124 F.3d at  351.  Often what the judge is told at the hearing is an abbreviated  version of the full range of government evidence, omitting detail  and nuance that would be offered at trial.  We think that Gandia's  plea had a rational basis in the facts and, if he had been advised  of the proper scienter standard, we would uphold it.


28
There is one last wrinkle.  Gandia pled guilty to two  offenses, not one, and the misstatement of the scienter element  pertained directly only to the carjacking count and not to the  separate firearms count.  However, quite apart from the package  character of the plea agreement, the firearms count itself depended  on use or carriage of the firearm "during and in relation to any  [federal] crime of violence," 18 U.S.C. § 924(c)(1) (1994), and the  only such federal crime of violence charged against Gandia was  carjacking.  Thus, without a valid plea to the latter offense, an  element of the firearm offense is lacking.


29
Accordingly, we vacate the judgment of conviction and  sentence and remand for further proceedings, consistent with this  decision.


30
It is so ordered.



Notes:


1
      This version of the shooting was supplied by Gandia himself  at his change-of-plea hearing.  The government's version of events  took no position on whether Gandia or Samuel Pizarro shot Colon and  his wife.


2
      See 140 Cong. Rec. E858 (daily ed. May 5, 1994) (extension of  remarks by Rep. Franks) ("My legislation is significant because it  includes carjacking murders that do not involve the use of a  firearm."); 139 Cong. Rec. S15301 (daily ed. Nov. 8, 1993)  (statement of Sen. Lieberman) ("This amendment will broaden and  strengthen [the carjacking] law . . . .").


3
      Although Gandia was also charged with aiding and abetting,  the government has assumed throughout that Gandia had to have the  intent required of a principal, and it has made no claim that  something less would do for an aider and abettor.  See generallyUnited States v. Rosario-Diaz, 202 F.3d 54, 62-63 (1st Cir. 2000).


4
      Since Olano, we have referred to the plain error standard in  at least eight Rule 11 cases, e.g., United States v. McKelvey, 203  F.3d 66, 70 (1st Cir. 2000), but, in several other recent  decisions, we have found it sufficient that the error was harmless  and have declined to say what standard governed, e.g., United  States v. Noriega-Milan, 110 F.3d 162, 166 & n.4 (1st Cir. 1997).


ATTACHMENT
APPENDIX

31
_________________________________________________________________________________
Circuits  Endorsing a       Supporting Citations
Plain Error  Standard  
_________________________________________________________________________________
Second  Circuit             United States v. Hidalgo, 225 F.3d 647, 2000 WL
                            1051959, at *4 (2d Cir. 2000) ("And because
                            appellant failed to argue in the district court
                            that  Judge Carter did not comply with Rule 11(c)
                            (3), we  review his claim on appeal only for plain
                            error. See Fed. R. Crim. P. 52(b).").
_________________________________________________________________________________
Fourth  Circuit             United States v. Jackson, 151 F.3d 1031, 1998 WL
                            386109, at *2 (4th Cir. 1998), cert. denied,  525
                            U.S. 1148 (1999).
_________________________________________________________________________________
Sixth  Circuit              United States v. Bashara, 27 F.3d 1174, 1178 (6th
                            Cir. 1994), cert. denied, 513 U.S. 1115 (1995).
_________________________________________________________________________________
Seventh  Circuit            United States v. Cross, 57 F.3d 588, 590
                            (7th Cir.), cert. denied, 516 U.S. 955 (1995).
_________________________________________________________________________________
Eleventh  Circuit           United States v. Quinones, 97 F.3d 473, 475
                            (11th Cir. 1996).
_________________________________________________________________________________


32
________________________________________________________________________________
Circuits  Advocating        Supporting Citations
a Harmless  Error Test         
_________________________________________________________________________________
Ninth  Circuit              United States v. Odedo, 154 F.3d 937, 939-40
                            (9th Cir. 1998).
_________________________________________________________________________________
D.C.  Circuit               United States v. Lyons, 53 F.3d 1321, 1322
                            n.1 (D.C.Cir. 1995).
_________________________________________________________________________________


33
_________________________________________________________________________________
Other  Circuits             Supporting Citations
_________________________________________________________________________________
Third  Circuit              Compare United States v. Cefaratti, 221 F.3d 502,
                            510 n. 3 (3d Cir. 2000)  ("The government maintains
                            that Cefaratti's failure  to raise this issue before
                            the District Court  necessitates plain error
                            review -- an issue on which  there is some
                            disagreement in the courts.  We need  not decide
                            this issue in light of our disposition."
                            (internal citations omitted)), with United
                            States v. Knobloch, 131 F.3d 366, 370
                            (3d Cir. 1997) (applying the plain error standard


34
                            where defendant had not  raised below his
                            allegation of error in the plea  colloquy). 
_________________________________________________________________________________
Fifth  Circuit              Compare United States v. Angeles-Mascote,
                            206 F.3d  529, 530 (5th Cir. 2000) ("plain
                            error" standard for  sufficiency of plea's
                            factual basis), and United  States v. Ulloa,
                            94 F.3d 949, 952 (5th Cir. 1996)  ("plain error"
                            standard), cert. denied, 520 U.S.  1157 (1997),
                            with United States v. Glinsey, 209 F.3d  386,
                            394 n.8 (5th Cir. 2000) ("harmless error"
                            standard).
_________________________________________________________________________________
Eighth Circuit              United States v. Young, 927 F.3d 1060, 1061-64
                            (8th Cir. 1991) (finding alleged errors harmless
                            without discussion of the plain error standard).
_________________________________________________________________________________
Tenth  Circuit              United States v. Friesen, 198 F.3d 259, 1999 WL
                            828051, at *7 (10th Cir. 1999) ("Friesen argues
                            for  the first time on appeal that the district
                            court  violated Fed.R.Crim.P. 11 . . . .  Whether
                            we review  for plain error or de novo, including
                            the harmless  error provision of
                            Fed.R.Crim.P. 11(h), the argument  lacks merit."
                            (internal citations omitted))
_________________________________________________________________________________

