The Hon. David H. Souter, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 08-1693

UNITED STATES,

Appellee,

v.

HARRY GUZMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge, 

Souter, Associate Justice, and Stahl, Circuit Judge. *

James L. Sultan, with whom Jonathan Harwell and Rankin &

Sultan were on brief, for the appellant.

Sangita K. Rao, Attorney, Criminal Division, Appellate

Section, with whom Lanny A. Breuer, Assistant Attorney General,

Carmen M. Ortiz, United States Attorney, and Robert Richardson,

Assistant United States Attorney, were on brief, for the appellee.

May 3, 2010
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LYNCH, Chief Judge. Harry Guzman appeals from his

January 2008 conviction under 18 U.S.C. § 844(i), and his life

sentence for his role in an April 3, 2003, arson that killed a

mother and her infant daughter. As to trial error, Guzman

primarily argues that the district court should have suppressed a

November 2003 confession he made to Bureau of Alcohol, Tobacco, and

Firearms ("ATF") agents, given that Guzman, when earlier arrested

for a June 9, 2003, arson, had invoked his right to counsel and had

been released on bail for that offense. At the time of his

November 2003 confession he was in state custody for violating his

July bail conditions. This claim requires us to apply the Supreme

Court's recent decision in Maryland v. Shatzer, 130 S. Ct. 1213

(2010). 

Guzman also raises claims regarding several of the

court's evidentiary rulings, and whether the arson affected

interstate commerce. As to his life sentence, Guzman argues the

district court failed to give an adequate explanation for the

sentence at the sentencing hearing, as required by 18 U.S.C.

§ 3553(c), that the district court misapplied the sentencing

guidelines, and that his sentence was substantively unreasonable.

We affirm.

I.

We review the basic facts of the case. Where there are

disputes of fact, they are not material to the issues we decide.
-3-

There was also no clear error in the trial court's assessment of

the facts for purposes of its rulings. Additional facts regarding

Guzman's claims are developed as we discuss each claim.

The fatal fire took place around 3:00 a.m. on April 3,

2003, at a five-unit apartment building on Manchester Street, in

Lawrence, Massachusetts. The building's owner lived in the

building's first floor unit and rented out the remaining four units

on the second and third floors. At least fifteen people lived in

the building. The fire was started on the rear porch of the

building and caused extensive damage. Matilda Medina and her twomonth-old baby, Angelic Duran, who lived on the third floor, died

as a result of the fire.

On the evening of April 3, 2003, Guzman was sleeping in

his girlfriend's car outside her apartment, around the corner from

Manchester Street. At some point in the evening, Juan Cruz arrived

in the neighborhood. He approached Guzman, and the two agreed to

burn the building. Accounts differ as to why they decided to light

the fire at the building where Medina lived. By one account, the

targeting of the building was motivated by a person living next

door to the building having earlier sold Cruz bad drugs; since the

drug dealer's building was built from bricks, Guzman and Cruz

instead targeted Medina's building. By another account, it was the

result of a fight Cruz had with a woman about unpaid drug money and

was intended to "send a message."
In an interview with a state trooper just after the fatal 1

fire, Guzman claimed that he was asleep as these events were

transpiring and only became aware of the fire because of the sound

of sirens from emergency responders. But two witnesses identified

Guzman at the scene of the fire. A boy who was fourteen at the

time of the offense testified that Guzman and Cruz asked him to be

a lookout. He testified that Cruz and Guzman then disappeared

behind the building for ten to fifteen seconds and later came

running out, as smoke and eventually fire came out of the building.

Another witness testified that he saw Guzman and the

fourteen-year-old standing outside Guzman's girlfriend's building

as the fire was burning and before emergency responders had

arrived. 

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Cruz and Guzman walked up a set of stairs behind the

building and lit a fire on the building's second floor back porch,

using a container of gasoline and a cloth. According to Guzman's

November 2003 confession to an ATF agent that we discuss later, he

supplied the gasoline and acted as the lookout. By other accounts,

he was more actively involved and may have actually lit the fire.1

This April 3 fire was one of a series of arson fires that

occurred in that neighborhood in the spring and summer of 2003.

The last arson occurred on June 9, 2003. The same day, Guzman was

arrested for the June 9 fire and taken to the police station.

After a Massachusetts State Police officer read him his Miranda

rights, Guzman invoked his right to counsel and was not questioned

further. As Guzman was waiting in the police captain's office to

be taken to his cell, State Trooper Matthew Gravini, whom Guzman

already knew, arrived at the police station. After Guzman waved to

Gravini, Gravini approached Guzman and asked how he was doing.

Guzman expressed concern for himself and his family and then made
-5-

statements implicating Juan Cruz in the earlier, fatal April 3

fire. When Gravini indicated that he wanted to "take his statement

in written form," Guzman once again invoked his right to counsel,

and Gravini immediately ended the conversation.

Guzman was charged in state court for the June 9 arson

and was released on bail in July 2003 until November 2003, when he

was returned to state custody for violating bail conditions. He

was held at the Essex County Correctional Facility in Middleton,

Massachusetts. 

On November 12, 2003, two ATF agents traveled to the

facility to interview Guzman about the April 3 arson. Pursuant to

facility policy, the deputy superintendent of the facility asked

Guzman if he would be willing to speak with the agents, and Guzman

agreed and signed a form consenting to the interview. Guzman met

the two agents in a large conference room. At the outset of the

meeting, the agents advised Guzman of his Miranda rights, and

Guzman signed the top half of a form acknowledging that he had been

advised of his rights. The bottom half of the form, containing a

waiver of Miranda rights, remained unsigned at this time. Guzman

was also told by the agents several times that he could leave the

meeting at any time.

The ATF agents told Guzman that they were there to speak

about the April 3 fire. For the next hour of conversation, the

agents told Guzman that he had been implicated in the crime and
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that there was a difference between an intentional killing and an

accident. After listening to the agents for about an hour, Guzman

responded, saying that the April 3 fire had been "bothering him."

He gave his version of the events and admitted that he had helped

Cruz commit the arson by providing fuel and acting as a lookout.

After Guzman had told his story, the ATF agents asked Guzman to

provide a written or recorded version of his statement. Guzman

said that he would do so only with his lawyer present. The agents

ceased questioning him but asked Guzman to sign the bottom half of

the Miranda waiver form, indicating that he had waived his rights

and agreed to talk with them. Guzman signed the waiver at

approximately 1:15 p.m., but, at the agents' request, Guzman

indicated on the form that he had waived his rights at 12:15 p.m.,

when he began telling his version of events to the officers. 

II.

On September 8, 2004, a grand jury in the District of

Massachusetts returned a two-count superseding indictment charging

Guzman with arson of two separate buildings used in any way

affecting interstate commerce, in violation of 18 U.S.C. § 844(i),

for the April 3 and June 9 fires. The district court later severed

the two counts to proceed in separate trials, and this case

concerns only the trial on Count One, the fatal April 3 fire. 

Before trial, Guzman moved to suppress his June 9

statements to Trooper Gravini and his November 12 statements to the
-7-

ATF agents, on grounds that they were elicited from him by the

officers after he had invoked his right to counsel. After a

hearing, the district court granted the motion to suppress as to

the June 9 statement but denied suppression of Guzman's November 12

admissions to the ATF agents. Those admissions were introduced at

trial through the testimony of the two ATF agents. Neither Guzman

nor Juan Cruz testified at trial.

Guzman also moved for dismissal before trial on the

ground that the arson did not affect interstate commerce. The

district court denied this motion.

The seven-day jury trial began on January 15, 2008. A

government witness at trial was Guzman's former cellmate, Juan

Ramos. Ramos testified that Guzman had confessed his involvement

in the arson to Ramos; Ramos also testified to Guzman's description

of the crime. Guzman's attorney elicited from Ramos that Ramos had

alternate sources for this information: Ramos knew Guzman was

keeping discovery documents in their shared cell, and Guzman had

told Ramos about his conversations with Guzman's attorney. On the

government's objection, however, the court did not allow Guzman's

trial counsel to elicit from Ramos the contents of the discovery

documents. Guzman objected in writing to the court's limiting of

his cross-examination. The court rejected his argument.

The government also made a motion in limine to prevent

admission of two hearsay statements by Cruz that Guzman claimed
-8-

were statements against penal interest, which implicated Cruz in

the fire and showed Cruz acted alone. The district court granted

the government's motion without explanation in a ruling from the

bench. 

On January 24, 2008, the jury found Guzman guilty.

Guzman already had four earlier convictions, including several

charges of disorderly conduct, and two instances of resisting

arrest, which, according to the presentence report ("PSR"),

qualified him as a career offender. At the end of the May 13,

2008, sentencing hearing the district court sentenced Guzman to

life in prison, three years' supervised release, payment of

restitution in the amount of $380,695, and a $100 special

assessment. The court did not explain its reasons for the life

sentence at the hearing. In a written statement of reasons, filed

June 2, 2008, the district court indicated that it adopted the PSR

without change and within the sentencing guideline range, noting

that it "imposed the sentence after considering all the surrounding

circumstances and the probation department's determination as to

the advisory guideline range." 

III.

A. There Was No Error in the Denial of the Motion to

Suppress

Guzman claims error in the district court's failure to

suppress his November 12, 2003, statements. "We review the

district court's findings of facts for clear error and its
-9-

application of the law to those facts de novo." United States v.

Dunbar, 553 F.3d 48, 55 (1st Cir. 2009). 

Guzman argues that the district court erred in denying

his motion to suppress for two reasons. First, he argues that the

November 12 statements were made during a custodial interrogation

and that because he had invoked his right to counsel five months

earlier to the state police following his June 9 arrest, the ATF

agent's questioning of him violated the rule of Edwards v. Arizona,

451 U.S. 477 (1981). Second, Guzman insists that, under the

circumstances of his meeting with the ATF agents, he did not

validly waive his Miranda rights.

1. Shatzer Forecloses Defendant's Argument Based on Edwards

In his original briefing for this case and at oral

argument, Guzman argued that he was in the ATF agents' custody at

the time that he gave the November 12 statement, and that, as a

result, his June 9 invocation of his right to counsel barred the

ATF agents from initiating further interrogation, even though he

was released on bail for a period of about four months between the

time of the first and second interrogations. See Minnick v.

Mississippi, 498 U.S. 146, 153 (1990); Arizona v. Roberson, 486

U.S. 675, 682-83 (1988); Edwards, 451 U.S. at 484. Because of the

very recent Supreme Court decision in Shatzer, Guzman's argument

fails. Even assuming arguendo that the November 12 meeting between
-10-

Guzman and the agents was a "custodial interrogation," Shatzer

forecloses the claim.

In Shatzer, the Supreme Court established a bright-line

rule that if a suspect who has invoked his right to have counsel

present during a custodial interrogation is released from police

custody for a period of fourteen days before being questioned again

in custody, then the Edwards presumption of involuntariness will

not apply. 130 S. Ct. at 1223. The Court stressed that the

Edwards rule was a non-constitutional, judicially-crafted rule,

which could be "justified only by reference to its prophylactic

purpose." Id. at 1220. In reaching this decision, the Court noted

its concern that a suspect, held in uninterrupted custody in an

unfamiliar, police-dominated atmosphere, might be "coerced or

badgered" into abandoning his earlier invocation of the right to

counsel. Id. at 1220. In contrast to that situation, the Supreme

Court noted that "[w]hen . . . a suspect has been released from his

pretrial custody and has returned to his normal life for some time

before the later attempted interrogation, there is little reason to

think that his change of heart regarding interrogation without

counsel has been coerced." Id. at 1221. Under those

circumstances, the suspect's decision to speak to officers is not

likely to be attributed to badgering but to the suspect coming to

believe that cooperation is in his best interest. Id. 
-11-

In this case, Guzman was released on bail for about four

months between the time that he originally invoked his right to

counsel and the ATF agents' subsequent attempt to question him.

This far exceeds the time period required by Shatzer and thus its

break-in-custody exception to Edwards applies.

After Shatzer was decided, we obtained supplemental

briefing from the parties. Guzman acknowledged in his supplemental

brief that a break-in-custody exception to Edwards exists, but

argued that even after Shatzer the Edwards rule should nonetheless

apply because his Miranda rights were not scrupulously honored in

the first instance when Trooper Gravini questioned him on June 9.

He cites no authority in support of such a contention and we

conclude that, after having been released for four months, Guzman

cannot contend that his prior invocation of his Miranda rights

applied. 

2. The Court Did Not Err in Finding There Was a Valid Waiver

That leaves Guzman's argument that the trial court erred

in holding that he validly waived his Miranda rights during the

November discussions with the ATF. "A defendant may waive his

Miranda rights if the waiver is made voluntarily, knowingly, and

intelligently." United States v. Palmer, 203 F.3d 55, 60 (1st Cir

2000). An express waiver is not required. United States v. Mejia,

No. 08-2505, 2010 WL 850184, at 3 (1st Cir. Mar. 12, 2010); see

also North Carolina v. Butler, 441 U.S. 369, 373 (1979). "We
-12-

review the determination of whether a waiver of rights was

voluntary de novo." United States v. Bezanson-Perkins, 390 F.3d

34, 39 (1st Cir. 2004).

 Here, the trial judge supportably found that Guzman's

waiver was voluntary. The court was presented evidence that Guzman

consented in writing to speak with the ATF agents before the

meeting even began. The ATF agents explained to Guzman his Miranda

rights and Guzman signed a form indicating that he understood them.

It is true that he did not sign the portion of the form waiving his

Miranda rights at the time; apparently he was not asked to do so.

Nonetheless, as counsel for Guzman admitted before this court at

oral argument, Guzman verbally agreed to speak with the agents

about the events of April 3 without a lawyer present. At the close

of the interview Guzman signed a form indicating he had waived his

right to remain silent. Oral waivers of Miranda rights are

sufficient, and individuals may properly invoke their right to

counsel before making written statements while still waiving their

Miranda rights with respect to oral statements. See Connecticut v.

Barrett, 479 U.S. 523, 529 (1987). 

The district court rejected counsel's reliance on

language from Missouri v. Seibert, 542 U.S. 600 (2004), that

failure to give warnings and obtain a waiver before initiation of

custodial questioning generally requires exclusion of any statement

obtained. The court distinguished Seibert and found that the ATF
What is more troubling from the standpoint of the 2

administration of justice was the back-timing of the waiver of

rights. The fact of the back-timing was presented to the court, so

its use was not an attempt to mislead the court. Nor does the

back-timing support any argument that Guzman's waiver was invalid;

it occurred after Guzman decided to speak with the agents.

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agents had told Guzman he could leave if he did not want to talk

and had shown him the door was unlocked. That the agents spoke

with Guzman for approximately an hour before he agreed to tell his

side of the story does not mean his decision to speak was coerced

or involuntary. 

Guzman argues that the ATF agents misled him by

presenting him with the waiver form and by not asking him to sign

the waiver form until the end of the interview. He couples that

with the argument that the ATF agents knew from Guzman's June 9

conversation with Trooper Gravini that Guzman drew a distinction

between what he said and written statements, and that Guzman was

spooked by requests to write things. That may be true, but Guzman

was told his rights and he confirmed that he understood them. See

United States v. Van Dusen, 431 F.2d 1278, 1281 (1st Cir. 1970).

That the agents chose certain conversational tactics after giving

the warning does not make Guzman's choice to talk a coerced

choice.2
-14-

B. There Was No Error in the Court's Exclusion of Hearsay 

Statements Offered by Guzman and Limits on Cross

Examination

Guzman next argues that the district court erred in

granting the government's motions in limine excluding two separate

hearsay statements by Cruz, and in preventing Guzman from further

cross-examining the government's witness, Ramos, on whether he

actually learned from discovery documents that Guzman had obtained

from his lawyer the information he attributed to an admission from

Guzman. We review a district court's exclusion of evidence for

abuse of discretion. United States v. Rivera-Hernandez, 497 F.3d

71, 81 (1st Cir. 2007). The district court did not abuse its

discretion for the reasons that follow.

1. The Exclusion of Cruz's Hearsay Statements Was Not

Prejudicial Error

Guzman argues that the hearsay statements should have

been admitted as statements against penal interest under Fed. R.

Evid. 804(b)(3). The district court excluded the statements,

without explanation, after receiving written motions from both

parties and hearing brief arguments. Counsel for Guzman did not at

the time request an explanation for the court's rulings. 

First, Guzman sought to admit a portion of a recorded

conversation between Cruz and a confidential informant. The

conversation occurred just after Cruz and the informant drove past

the site of the fatal April 3 fire. The informant asked Cruz

whether he committed the arson, and Cruz responded, "I didn't have
-15-

anything to do with that." Moments later, in response to another

question by the informant, Cruz stated that "[t]hey wanted me to do

it but I didn’t do it because you know two people died there."

Cruz also told the informant "[t]his nigar that did it, he didn’t

even get paid for it." 

When the declarant is not available, a statement may

nonetheless be admitted if, 

at the time of its making [it] . . . so far tended to

subject the declarant to civil or criminal liability

. . . that a reasonable person in the declarant's

position would not have made the statement unless

believing it to be true. A statement tending to expose

the declarant to criminal liability and offered to

exculpate the accused is not admissible unless

corroborating circumstances clearly indicate the

trustworthiness of the statement. 

Id. 

The district court did not abuse its discretion in

granting the government's motion in limine on these statements,

based on the arguments the parties put forth in their motions. The

government argued to the court that the statements were not against

Cruz's penal interest; Cruz denied involvement in the fire. Guzman

argued that Cruz's statements in this exchange were against penal

interest because they showed that someone wanted him to set the

fire and that he knew that whoever did set the fire did not get

paid for it. But those statements were not inculpatory and not

against Cruz's penal interests. 
-16-

Second, Guzman also sought to admit statements from a

conversation that a witness, Javier Rodriguez, overheard between

Cruz and a third person. A couple weeks after the fatal fire, a

state trooper walked into a local park to hand out flyers offering

a reward for information about the fire. About five minutes after

the trooper left the park, Rodriguez claimed he overheard Cruz say

to the third person, "now that the people know it's me, they are

going to rat me out." Cruz later said to this third person in

Spanish, "I just told you that I started the fire, how do I know

that you 'niggers' won't rat me out." 

The government introduced evidence from the third person

Cruz was speaking to that this was a joking conversation in its

motion in limine. It argued that because this person viewed the

conversation as a joke, there was no corroboration. 

Cruz's purported statement was plainly against penal

interest. Contrary to the government's argument, the statement of

this third person tended to corroborate Rodriguez's statement about

what Cruz had said. The fact that the third person described the

conversation as joking was not an adequate reason to exclude the

statement. The prosecution could have argued that to the jury. 

Still, if there was any error, it was harmless. See

United States v. Morales-Machuca, 546 F.3d 13, 22 (1st Cir. 2008).

There was a great deal of other evidence that Cruz participated in

the arson. And, contrary to Guzman's argument, the statement says
Defense counsel was permitted to establish that Ramos had 3

previously testified against cellmates; that Ramos was aware of

what discovery materials are; that Ramos was aware Guzman was

meeting with his lawyers, receiving paperwork from them and leaving

that paperwork in his cell; that Guzman spoke with Ramos about what

he learned from his lawyers; and that there were weekly times when

Ramos would be in the cell alone and therefore would have access to

Guzman's discovery materials. At closing arguments defense counsel

asserted that every detail Ramos testified to was obtainable

through Guzman's discovery documents or conversations with Guzman.

-17-

nothing about Guzman and is not a statement by Cruz that he acted

alone.

2. The District Court Did Not Err in Limiting the CrossExamination of Ramos

Guzman also claims the district court improperly limited

his cross-examination of Ramos, Guzman's former cellmate, by not

allowing him to keep questioning to elicit from Ramos the specific

contents of the discovery documents provided to Guzman. Guzman had

ample opportunity to establish from Ramos that he may have learned

the details of the offense from discovery documents, and so 3

Ramos's testimony about Guzman's supposed confession was false.

The district court did not abuse its discretion in not allowing

Guzman to introduce hearsay statements about the contents of those

documents and Guzman's communications with his lawyers. See Fed.

R. Evid. 403, 802. This was exactly the sort of balancing

committed to the discretion of trial judges.

Guzman elicited from Ramos that Guzman, after meeting

with his lawyers, told Ramos that an argument had occurred between

Cruz and one of the victims the day before the fire and that there
-18-

was a discovery report to that effect. The district court did not

abuse its discretion, as Guzman contends, in not permitting him to

elicit from Ramos what Guzman said his lawyers had told him about

the conversation; it was hearsay. The remaining arguments are

without merit.

3. Guzman Was Not Denied His Right to Present a Defense

There is also no credible claim that these rulings denied

Guzman his right to present a defense. "A defendant's right to

present relevant evidence is not unlimited, but rather is subject

to reasonable restrictions." United States v. Scheffer, 523 U.S.

303, 308 (1998). 

C. The District Court Correctly Found a Jurisdictional Nexus

with Interstate Commerce

Guzman argues that the district court erred in finding

that the Manchester Street building was "used in interstate or

foreign commerce or in any activity affecting interstate or foreign

commerce" as required by the arson statute, 18 U.S.C. § 844(i). It

is agreed that the building had five units, four of which were

rented out and one of which was occupied by the building's owners.

The rule in this circuit is "that rental property is per

se sufficiently connected to interstate commerce to confer federal

jurisdiction under Section 844(i)." United States v. DiSanto, 86

F.3d 1238, 1248 (1st Cir. 1996); see also United States v. Ruiz,

105 F.3d 1492, 1499 (1st Cir. 1997). Guzman argues that the

Supreme Court's decision in Jones v. United States, 529 U.S. 848
-19-

(2000), calls this holding into question. Jones held that an owner

occupied private home was not used in interstate commerce for

purposes of § 844(i). Id. at 859. Guzman argues that a building

that is partially owner occupied and partially rented, as here,

should not be considered a part of interstate commerce. 

Jones does not help Guzman. In Jones the Supreme Court

explicitly affirmed an earlier case, Russell v. United States, 471

U.S. 858 (1985), where the Supreme Court had found a two-unit

rental building to be used in interstate commerce. Jones, 120 U.S.

at 856. The Jones Court emphasized the proper inquiry under

§ 844(i) is how the property is used and whether that use affects

interstate commerce. Id. at 854. There is no question that the

building where the fatal fire occurred in this case was used as a

rental property, which makes it sufficiently connected to

interstate commerce for purposes of § 844(i). 

D. Guzman Was Properly Sentenced

Guzman makes three arguments attacking the imposition of

a life sentence: (1) that the district court violated 18 U.S.C.

§ 3553(c) in failing to provide an oral explanation for his

sentence; (2) that the district court erred in applying the firstdegree murder guideline in calculating his total offense level; and

(3) that his life sentence was substantively unreasonable. While

troubled by the district court's failure to explain at the
Guzman cites a number of cases from other circuits in 4

support of lowering the plain error standard where the sentence is

not explained, but those cases are all distinguishable from this

case because they all involved sentences that were above the

guidelines range, which the judge failed to explain as required by

§ 3553(c)(2). See, e.g., United States v. Blackie, 548 F.3d 395,

400-02 (6th Cir. 2008); In re Sealed Case, 527 F.3d 188, 191-93

(D.C. Cir. 2008); United States v. Lewis, 424 F.3d 239, 245-49 (2d

Cir. 2005). 

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sentencing why Guzman would serve a life sentence, we affirm under

the applicable plain error standard.

1. The District Court's Failure to Explain the Sentence Was

Not Plain Error

Guzman failed at sentencing to object to the district

court's lack of explanation as required by 18 U.S.C. § 3553(c). We

review unpreserved claims that the district court failed to comply

with § 3553(c) for plain error. United States v. Pakala, 568 F.3d

47, 56 (1st Cir. 2009). This is not a situation at sentencing in

which defendant had no opportunity to bring to the court's

attention its omission. 

"To vacate a sentence under plain error review, four

prerequisites must be established: (1) an error occurred; (2) the

error was clear and obvious; (3) the error affected the defendant’s

substantial rights; and (4) the error impaired the fairness,

integrity, or public reputation of the judicial proceedings."4

United States v. Mangual-Garcia, 505 F.3d 1, 15 (1st Cir. 2007).

Section 3553(c) requires that a district court "at the

time of sentencing . . . state in open court the reasons for its
There is no argument that the guideline range in this 5

case exceeded twenty-four months or that the court sentenced Guzman

above his guideline range; thus § 3553(c)(1) and (2) do not come

into play here.

-21-

imposition of the particular sentence." Here, the district court, 5

after hearing argument and allocution, merely stated "Okay. I am

going to sentence you to life." This circuit has held that failure

to provide an adequate explanation is not per se plain error.

Mangual-Garcia, 505 F.3d at 16. We have "recognized that '[e]ven

silence is not necessarily fatal; a court's reasoning can often be

inferred by comparing what was argued by the parties or contained

in the presentence report with what the judge did.'" United States

v. Arango, 508 F.3d 34, 46 (1st Cir. 2007) (quoting United States

v. Turbides-Leonardo, 468 F.3d 34, 40-41 (1st Cir. 2006))

(alteration in original). 

Guzman argues a substantial right was harmed because the

lack of explanation denied him an adequate record from which to

appeal the sentence. Not so. There is a lengthy sentencing

record. This includes the parties' written sentencing memos and

oral arguments at the sentencing hearing. The government in these

arguments adopted the PSR and made clear its reasons why a life

sentence should be imposed. Guzman argued against a life sentence

and made the case for a shorter sentence. The sentencing record

also includes the PSR, the district court's statements at the

sentencing hearing, and the district court's later statement of
-22-

reasons, which adopted the PSR. Although the district court's

failure to explain the sentence was inadequate, it was not plain

error.

2. The District Court Correctly Applied the Sentencing

Guidelines

"We review the district court's interpretation of the

Guidelines de novo and its factual findings for clear error."

United States v. Rivera-Rivera, 555 F.3d 277, 292 (1st Cir. 2009).

Violations of 18 U.S.C. § 844(i) are sentenced under

§ 2K1.4. That section specifically instructs that "[i]f death

resulted, or the offense was intended to cause death or serious

bodily injury, apply the most analogous guideline from Chapter Two,

Part A." U.S.S.G. § 2K1.4(c)(1). Guzman argues that the district

court erred in finding that the analogous provision from Chapter

Two was the provision for first degree murder, § 2A1.1, because

Guzman did not premeditate or intend to kill the two victims, and

so he should have been sentenced under the provision for second

degree murder, § 2A1.2. In the alternative, he argues that the

cross reference in § 2K1.4(c) is ambiguous and, under the rule of

lenity, he should be sentenced under the second degree murder

provision.

There was no error. The analogous provision, as required

by § 2K1.4(c), is clearly § 2A1.1, under both the text of the

Guideline and our precedent. Section 2A1.1 covers sentencing for

first-degree murder under 18 U.S.C. § 1111. That provision
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includes deaths caused by arson in its definition of first degree

murder. Moreover, the commentary for § 2A1.1 explains that it

applies not only in cases of premeditated killing, but also "when

death results from the commission of certain felonies." U.S.S.G.

§ 2A1.1, cmt. n.1; see also United States v. Shea, 211 F.3d 658,

674 (1st Cir. 2000); United States v. Serrano-Osorio, 191 F.3d 12,

15 (1st Cir. 1999). Other circuits agree that § 2A1.1 is the

appropriate provision when arson results in death. See, e.g.,

United States v. Tocco, 135 F.3d 116, 130-31 (2d Cir. 1998); United

States v. El-Zoubi, 993 F.2d 442, 449 (5th Cir. 1993).

Guzman also argues that even if he was properly sentenced

under § 2A1.1, the district court should have considered a downward

departure because the deaths were not caused knowingly or

intentionally. See U.S.S.G. § 2A1.1, cmt. n.2(b). 

We adhere to a general rule that "a sentencing court's

discretionary refusal to depart is unreviewable." United States v.

Sanchez, 354 F.3d 70, 76 (1st Cir. 2004). Guzman claims to be

within an exception to this rule, arguing that the district court

erroneously believed it lacked authority to downwardly depart, see

id., as shown by its statement that Guzman was "chargeable with

having intended the predictable consequences of his actions." This

was not a statement the court believed it lacked authority.

Further, "sentencing courts are under no obligation to make
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specific findings when denying departure requests." Id. (emphasis

in original).

We reject Guzman's contention that the district court's

factfinding to determine § 2A1.1 to be the proper guideline

violated the rule of Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). "A sentencing court may make factual findings that result

in an increase to a defendant's sentence as long as the sentence

imposed is within the default statutory maximum." United States v.

Vasco, 564 F.3d 12, 23 (1st Cir. 2009). Here, the jury convicted

Guzman of arson resulting in death, and 18 U.S.C. § 844(i) states

that the maximum sentence under such circumstances may be life

imprisonment or the death penalty. This claim clearly fails.

3. Guzman's Life Sentence Was Substantively Reasonable

Finally, under an abuse of discretion standard,

Morales-Machuca, 546 F.3d at 25, we reject Guzman's argument that

his life sentence was substantively unreasonable. Guzman was

sentenced within the Sentencing Guidelines range for an arson of a

dwelling that resulted in the deaths of two people, a mother and

her child. The arson was in a building with five units, housing

fifteen people. At 3:00 a.m. it was likely the residents were in

bed, asleep in their units. It was predictable someone would be

hurt or killed.

The judgment of the district court is affirmed.