PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 01-4820

ADAM NICKLOUS CARR,

Defendant-Appellant. 

Appeal from the United States District Court

for the Middle District of North Carolina, at Durham.

N. Carlton Tilley, Jr., Chief District Judge.

(CR-01-126)

Argued: June 6, 2002

Decided: September 11, 2002

Before MICHAEL and GREGORY, Circuit Judges, and

Robert R. BEEZER, Senior Circuit Judge of the United States

Court of Appeals for the Ninth Circuit, sitting by designation.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge Michael wrote the opinion, in which Judge Gregory and Senior

Judge Beezer joined. 

COUNSEL

ARGUED: Eric David Placke, Assistant Federal Public Defender,

Greensboro, North Carolina, for Appellant. Douglas Cannon, Assistant United States Attorney, Greensboro, North Carolina, for Appellee. ON BRIEF: Louis C. Allen, III, Federal Public Defender,
Greensboro, North Carolina, for Appellant. Anna Mills Wagoner,

United States Attorney, Robert A.J. Lang, Assistant United States

Attorney, Greensboro, North Carolina, for Appellee. 

OPINION

MICHAEL, Circuit Judge: 

Adam Nicklous Carr was convicted under 18 U.S.C. § 844(i) for

intentionally setting fire to an apartment building and causing the

death of an occupant. He was sentenced to life in prison. Carr appeals,

arguing that his conviction must be reversed because his indictment

failed to allege an essential element of the offense, namely, that the

building was damaged or destroyed "by means of fire or an explosive." Using the analysis for forfeited error, we affirm Carr’s conviction because the indictment defect did not seriously affect the

fairness, integrity, or public reputation of judicial proceedings. Carr

also appeals his sentence, arguing that the district court erroneously

equated his reckless state of mind with knowledge when it denied his

request for a downward departure. See U.S. Sentencing Guidelines

Manual § 2A1.1, cmt. n.1 (2001). We remand for resentencing

because we are not sure that the district court properly distinguished

between recklessness and knowledge when it refused to depart downward. 

I.

In the early morning hours of February 1, 2001, someone set fire

to a four-unit brick apartment building at 730 South Beaumont Avenue in Burlington, North Carolina. The fire was set in Apartment 2,

a first-floor apartment that was vacant at the time. Firefighters and an

arson expert said that the nature and severity of the damage indicated

that a flammable liquid had been used to start the fire. The building’s

three tenants were asleep in their respective apartments when the fire

was started. Two of the tenants made it out of the building. The third,

Ernest Smithey, Jr., did not. Firefighters discovered Smithey’s body

on the floor of his second-level apartment. The cause of death was

carbon monoxide poisoning from the fire. 

2 UNITED STATES v. CARR
About two weeks later, Torrie Rudd, an acquaintance of defendant

Carr, came to the police after learning that the Burlington Crimestoppers were offering a reward for information about the identity of the

arsonist. Rudd told police that on the day of the fire she talked with

Carr at his brother’s house. She asked Carr whether he had set the fire

and whether he knew that people were inside the apartment building

at the time. Carr replied that he "didn’t think it would burn like that

and he didn’t know if anybody was in the [building]." Rudd later

wore a wire and recorded conversations with Carr in which Carr made

self-incriminating statements, including a boast that his girlfriend

would provide a false alibi. When the police interviewed Carr on

March 5, 2001, he made oral and written statements, essentially

claiming that if he was the cause of the fire, it was an accident. Specifically, Carr claimed that he had gone into an empty apartment and

a fire erupted when he tried to light the gas heater. Carr said he beat

the fire out with his shirt, urinated on the heater, and left the building.

These statements were completely contradicted by the government’s

evidence, including the evidence about the nature of the fire.

Carr was indicted by a federal grand jury for a violation of 18

U.S.C. § 844(i), which provides:

Whoever maliciously damages or destroys . . . by means

of fire or an explosive, any building, vehicle, or other real

or personal property used in interstate or foreign commerce

or in any activity affecting interstate or foreign commerce

shall be imprisoned for not less than 5 years . . . and if death

results to any person . . . as a direct or proximate result of

conduct prohibited by this subsection, shall also be subject

to imprisonment for any term of years, or to the death penalty or to life imprisonment. 

The indictment alleged that Carr "did maliciously damage and destroy

and attempt to damage and destroy an apartment building . . . used

in interstate commerce . . . which resulted in the death of Ernest Stanton Smith[e]y, Jr., in violation of Title 18, United States Code, Section 844(i)." The indictment failed to allege that Carr had damaged or

destroyed the building "by means of fire or an explosive." Carr did

not object to the defect in the indictment either before or during trial.

UNITED STATES v. CARR 3
Carr was convicted by a jury. At sentencing he moved for a downward departure under the applicable guideline, U.S.S.G. § 2A1.1,

First Degree Murder, application note 1, on the ground that he did not

knowingly or intentionally cause the death of the tenant. The district

court found that Carr had acted with reckless indifference to the possibility of causing death, which the court equated with knowledge.

The court therefore held that Carr was ineligible for a downward

departure. Carr was sentenced to life imprisonment plus five years of

supervised release. He appeals his conviction, arguing that the indictment’s failure to allege an essential element of the offense — "by

means of fire or an explosive" — constitutes plain error that we

should notice and correct, even though he did not bring this defect to

the attention of the district court. Carr also appeals his sentence, arguing that the district court committed legal error by equating reckless

indifference with knowledge and that this error led the court to refuse

to consider a downward departure under the applicable guideline,

U.S.S.G. § 2A1.1, cmt. n.1. 

II.

We first consider whether the indictment’s failure to allege an

essential element of the offense is an error requiring reversal of Carr’s

conviction despite his failure to make a timely objection. All agree

that the omitted phrase, "by means of fire or an explosive," is an

essential element of a § 844(i) offense. See United States v. Gullett,

75 F.3d 941, 947 (4th Cir. 1996). Indeed, the omission of the "fire or

. . . explosive" language means that the indictment did not charge a

federal crime at all. 

In his initial brief on appeal, Carr contended that the omission from

his indictment of an essential element of the crime was an error that

deprived the district court of jurisdiction to hear his case. Accordingly, he argued that his conviction had to be vacated notwithstanding

his failure to object. This position had some support in the case law.

See, e.g., Ex parte Bain, 121 U.S. 1, 13 (1887) (a flawed amendment

to the indictment means that "the jurisdiction of the offence [sic] is

gone, and the court has no right to proceed any further in the progress

of the case for want of an indictment."); United States v. Hooker, 841

F.2d 1225, 1232 (4th Cir. 1988) (en banc) ("Because the missing element in the present case was essential, its complete absence from

4 UNITED STATES v. CARR
Count III [of the indictment] is a fatal defect. . . . The court thus had

no jurisdiction to try [the defendant] under that count . . . and its judgment must be vacated."). A few days before Carr’s appeal was

argued, however, the Supreme Court issued its decision in United

States v. Cotton, ___ U.S. ___, 122 S.Ct. 1781 (2002). In Cotton the

Court discussed whether an indictment defect, particularly the failure

to charge a federal crime, deprives a district court of jurisdiction. The

Court said: 

Post-[Ex parte]Bain cases confirm that defects in an

indictment do not deprive a court of its power to adjudicate

a case. In Lamar v. United States, 240 U.S. 60 (1916), the

Court rejected the claim that "the court had no jurisdiction

because the indictment does not charge a crime against the

United States." Id., at 64. Justice Holmes explained that a

district court "has jurisdiction of all crimes cognizable under

the authority of the United States . . . [and] [t]he objection

that the indictment does not charge a crime against the

United States goes only to the merits of the case." Id., at 65.

Similarly, United States v. Williams, 341 U.S. 58, 66 (1951),

held that a ruling "that the indictment is defective does not

affect the jurisdiction of the trial court to determine the case

presented by the indictment." 

Thus, this Court some time ago departed from Bain’s

view that indictment defects are "jurisdictional." . . . Insofar

as it held that a defective indictment deprives a court of

jurisdiction, Bain is overruled.

Cotton, 122 S.Ct. at 1785 (parallel citations omitted; second alteration

in original). This language from Cotton prompted Carr’s lawyer to

concede at oral argument that the defect in the indictment did not

deprive the district court of jurisdiction to adjudicate Carr’s case. 

Because Cotton has taken the jurisdictional issue away from us, we

will review Carr’s forfeited claim about the indictment defect under

the plain error test of Federal Rule of Criminal Procedure 52(b). See

Cotton, 122 S.Ct. at 1785. Under that test, which was spelled out in

United States v. Olano, 507 U.S. 725, 732-36 (1993), an appellate

court may correct an error not brought to the attention of the trial

UNITED STATES v. CARR 5
court if (1) there is an error (2) that is plain and (3) that affects substantial rights. "If all three [of these] conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but

only if (4) the error seriously affect[s] the fairness, integrity, or public

reputation of judicial proceedings." Johnson v. United States, 520

U.S. 461, 467 (1997) (quoting Olano, 507 U.S. at 732) (quotations

omitted; second alteration in original). 

The government concedes that the defect in Carr’s indictment is

error and that the error is plain. This brings us to the third inquiry in

the plain error (or Olano) analysis, that is, whether the error affects

substantial rights. We may bypass the inquiry at the third step and

assume that Carr’s substantial rights are violated if we can determine,

at the fourth step, that the error has not seriously affected the fairness,

integrity, or public reputation of judicial proceedings. See Cotton, 122

S.Ct. at 1786. Because Carr’s argument fails at Olano’s fourth step,

we move directly to that discussion. See id.

At oral argument Carr’s lawyer emphasized the importance of the

Fifth Amendment right to a grand jury to support Carr’s claim that the

indictment defect seriously affected the fairness, integrity, or public

reputation of judicial proceedings. Specifically, the lawyer argued that

it is essential to the basic fairness and integrity of the criminal process

that the indictment set forth every ingredient of the crime charged.

However, in Cotton the Supreme Court, citing Johnson, rejected

essentially the same argument. Id. at 1786-87. In Johnson the Court

held that the judge’s failure in a perjury trial to instruct the jury on

the essential element of materiality did not seriously affect the fairness, integrity, or public reputation of judicial proceedings. Johnson,

520 U.S. at 469-70. This was because "[t]he evidence of materiality

. . . was ‘overwhelming’ and ‘essentially uncontroverted.’" Cotton,

122 S.Ct. at 1786 (quoting Johnson, 520 U.S. at 470). Thus, in Johnson the defendant’s conviction was upheld because even though the

petit jury was not charged on one of the essential elements of perjury,

the uncharged element (materiality) was nevertheless established by

evidence that was one-sided and overwhelming. Similarly, in Cotton

the Court reviewed the evidence relating to the element missing from

the indictment (the quantity of drugs involved) and concluded that

"[t]he evidence that the conspiracy involved at least 50 grams of

cocaine base was ‘overwhelming’ and ‘essentially uncontroverted.’"

6 UNITED STATES v. CARR
Cotton, 122 S.Ct. at 1786. The Court therefore concluded that

"[s]urely the grand jury, having found that the conspiracy existed,

would have also found that the conspiracy involved at least 50 grams

of cocaine base." Id. at 1786. As the Court explained in Cotton, if the

defect in the trial court’s instructions to the petit jury in Johnson did

not seriously affect the fairness, integrity, or public reputation of judicial proceedings, then neither does a similar defect in the grand jury

indictment. Cotton, 122 S.Ct. at 1787. This assumes, of course, that

the faulty indictment still provided the defendant with adequate notice

of the offense charged. 

Here, as in Cotton and Johnson, there is no question that the evidence unequivocally and overwhelmingly supported the missing element, namely, that the apartment building was damaged or destroyed

by fire. And, while the element of "by fire or an explosive" was omitted from the grand jury indictment, it was included in the charge to

the petit jury, which found the element beyond a reasonable doubt

when it returned a guilty verdict. Thus, we can say with confidence

that the grand jury, having charged Carr with damaging or destroying

the building, would also have charged him with using fire as the

means, if the grand jury had been properly advised. In addition, Carr

does not suggest that any of the substantive concerns underlying the

Fifth Amendment right to a grand jury, such as adequate notice of the

offense charged, see United States v. Miller, 471 U.S. 130, 134-35

(1985), are implicated here. Indeed, in a trial brief filed a full month

before trial, Carr’s lawyer stated that "the Government must prove

. . . beyond a reasonable doubt . . . [f]irst, that the defendant set fire

or used an explosive to damage or destroy, or in an attempt to damage

or destroy, property." Carr was thus aware all along that he was

charged with damaging or destroying the apartment building "by

means of fire or an explosive." In these circumstances, the defect in

Carr’s indictment did not seriously affect the fairness, integrity, or

public reputation of judicial proceedings. Accordingly, we affirm his

conviction. 

III.

Carr also appeals his sentence. At sentencing the district court

found that Carr was recklessly indifferent to whether people would be

in the apartment building. Carr contends that the court erred by equatUNITED STATES v. CARR 7
ing his reckless indifference with knowledge and that this error led

the court to the erroneous conclusion that it could not depart downward from the offense level (43) specified in the first degree murder

guideline. This meant that Carr got a life sentence. We agree with

Carr that reckless indifference does not equal knowledge. After reading the sentencing transcript, we are not sure whether the district court

was simply equating reckless indifference with knowledge, which

would be error, or whether the court concluded that the evidence was

also sufficient to support a finding that Carr knowingly caused the

death of another. This uncertainty prompts us to vacate Carr’s sentence and remand for further proceedings and resentencing. 

The basic guideline for a violation of § 844(i) is Guideline § 2K1.4,

Arson. However, § 2K1.4(c)(1) instructs that "[i]f death resulted," as

it did here, "apply the most analogous guideline from Chapter Two,

Part A (Offenses Against the Person)." U.S.S.G. § 2K1.4(c)(1). The

most analogous guideline is § 2A1.1, First Degree Murder. See

United States v. Gullett, 75 F.3d 941, 949 (4th Cir. 1996). Section

2A1.1 set Carr’s base offense level at 43. After concluding that no

enhancements or downward adjustments applied, the district court

sentenced Carr to life imprisonment, the only sentence available for

a total offense level of 43. 

Carr requested a downward departure based on Guideline § 2A1.1,

application note 1, which says: "If the defendant did not cause the

death intentionally or knowingly, a downward departure may be warranted. The extent of the departure should be based upon the defendant’s state of mind (e.g., recklessness or negligence), [among other

things]." U.S.S.G. § 2A.1.1, cmt. n.1. The district court heard extensive testimony at the sentencing hearing about whether Carr knew that

the building was an apartment building and whether he knew that it

was occupied at the time he set the fire. The court found that it was

obvious the structure was an apartment building because (1) there

were mailboxes in the front and gas meters on the side for each of the

four apartments and (2) there were cars parked next to the building.

In addition, Carr had been inside the building, where numbers that

had been painted over were still visible on the entrance doors to the

apartments. Still, the court did not make a finding that Carr actually

knew that people were inside the building at the time of the fire.

Rather, the court concluded that "the only reasonable belief would be

8 UNITED STATES v. CARR
there were people" present in the apartment building, which "creates

a finding of reckless indifference, wilful indifference, which equates

to knowledge." This led the court to "find [that it had] no basis to

depart downward in this case." 

Carr argues that he did not cause the death knowingly (or intentionally) and that the district court committed legal error when it equated

reckless indifference with knowledge and, as a result, refused to

depart downward. We may review a district court’s refusal to depart

downward "only when the district court ‘was under the mistaken

impression that it lacked the authority to depart.’" United States v.

Matthews, 209 F.3d 338, 352 (4th Cir. 2000) (quoting United States

v. Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992)). When review

of a refusal to depart is appropriate, "issues of guideline construction

[are] subject to de novo review." United States v. Brock, 211 F.3d 88,

90 (4th Cir. 2000). 

Application note 1 to § 2A1.1 draws a distinction between conduct

that is either intentional or knowing and conduct that is either reckless

or negligent. If the conduct is not done intentionally or knowingly,

but instead is done recklessly or negligently, then a downward departure is encouraged. The district court refused to depart because it concluded that Carr’s "reckless indifference . . . equates to knowledge."

According to Carr, this shows that the district court believed that his

reckless indifference in causing the death was the same as knowingly

causing it, thus making him ineligible for a downward departure.

Carr’s argument that the court erred in equating acting recklessly with

acting knowingly is, at bottom, an argument that the district court was

under the mistaken impression that it lacked the authority to depart

under the Guidelines. The court’s decision not to depart is therefore

reviewable. Specifically, the question whether acting knowingly can

be equated with acting recklessly presents a legal question of Guidelines interpretation that is subject to de novo review. 

Application note 1 to § 2A1.1, in discussing departure, focuses on

the defendant’s state of mind: "If the defendant did not cause the

death intentionally or knowingly," but caused it through "recklessness

or negligence," "a downward departure may be warranted." U.S.S.G.

§ 2A1.1, cmt. n.1. The term "knowingly" thus indicates a more culpable state of mind than does the term "recklessness." The application

UNITED STATES v. CARR 9
note does not, however, define the two terms, nor are they defined in

the general definitions section of the Guidelines, U.S.S.G. § 1B1.1,

cmt. n.1. As a result, we must look elsewhere for guidance. 

We turn first to finding the appropriate definition for the term

"recklessness" in application note 1 to Guideline § 2A1.1 (First

Degree Murder), the Guideline that ultimately applies here. This

Guideline is in the series of five Guidelines (§§ 2A1.1-2A1.5) relating

to homicide. An application note to another Guideline in this series,

§ 2A1.4 (Involuntary Manslaughter), defines "reckless" as follows: 

"Reckless" refers to a situation in which the defendant was

aware of the risk created by his conduct and the risk was of

such a nature and degree that to disregard that risk constituted a gross deviation from the standard of care that a reasonable person would exercise in such a situation. 

U.S.S.G. § 2A1.4, cmt. n.1. We apply the same definition to the term

"recklessness" in application note 1 to Guideline § 2A1.1, and we will

explain why we are doing this in light of the cautionary note found

in the general application instructions for the Guidelines.

"[D]efinitions [in individual Guideline sections] are not designed for

general applicability; therefore, their applicability to sections other

than those expressly referenced must be determined on a case by case

basis." U.S.S.G. § 1B1.1, cmt. n.2. The case for applying the definition of "reckless" in § 2A1.4’s application note 1 to "recklessness" in

§ 2A1.1’s application note 1 is easily made. First, the definition of

"reckless" in application note 1 to § 2A1.4 requires a sentencing court

to focus on the defendant’s state of mind in determining whether conduct that resulted in involuntary manslaughter was reckless, which

would trigger a higher base offense level than criminal negligence.

Likewise, under application note 1 to § 2A1.1 when the "defendant

did not cause the death intentionally or knowingly," the "extent of

[any downward] departure should be based upon the defendant’s state

of mind (e.g., recklessness or negligence)," among other factors.

Because the recklessness inquiry in both Guideline sections has the

same focus, the defendant’s state of mind, the definition of "reckless"

in application note 1 to § 2A1.4 is tailor-made to define "recklessness" in application note 1 to § 2A1.1. Second, application note 1 to

§ 2A1.4 uses a standard definition of "reckless." See, e.g., Model

10 UNITED STATES v. CARR
Penal Code § 2.02(2)(c) (1985) (stating that a person acts "recklessly"

when he "consciously disregards a substantial and unjustifiable risk

. . . of such a nature and degree that . . . its disregard involves a gross

deviation from the standard of conduct that a law-abiding person

would observe in the actor’s situation"). 

The definition for "knowingly" in application note 1 of Guideline

§ 2A1.1 can be quickly settled because we have guidance from the

Supreme Court. According to the Court, a person acts "knowingly" as

to the result of his conduct "when he knows that the result is practically certain to follow from his conduct." United States v. U.S. Gypsum Co., 438 U.S. 442, 445 (1978) (quoting W. Lafave & A. Scott,

Criminal Law 196 (1972)); accord Model Penal Code § 2.02(2)(b)(ii)

(stating that a person acts "knowingly" as to the "result of his conduct" when he "is aware that it is practically certain that his conduct

will cause such a result"). 

From the definitions we see that "knowing" and "reckless" states

of mind both require a subjective awareness of risk on the part of the

actor. The difference lies in the degree of the risk that the actor is

aware of. In this case, then, Carr acted knowingly if he acted with the

awareness that it was practically certain that death would result from

the fire. He acted recklessly if (1) he was aware of the risk of death

created by his conduct and (2) the risk was of such a nature and

degree that to disregard it constituted a gross deviation from the standard of care that a reasonable person would exercise in the circumstances. In either case Carr acted with a high degree of culpability,

and in either case substantial punishment is prescribed. Nevertheless,

application note 1 to § 2A1.1 suggests that acts done recklessly may

deserve lesser punishment than acts done knowingly. As a result,

courts have required that careful attention be paid at sentencing to the

defendant’s state of mind when § 2A1.1, the murder guideline, is

applied to a case involving arson or the use of explosives resulting in

death. For example, in United States v. Prevatte, 16 F.3d 767 (7th Cir.

1994), the defendants were convicted under § 844(i) for damaging or

destroying property by means of explosive that resulted in a death.

The defendants detonated a pipe bomb in an alley to test the response

time of police and firemen so that future burglaries could be timed

accordingly. Unfortunately, an elderly woman standing nearby (just

outside her house) was killed by shrapnel from the blast. The district

UNITED STATES v. CARR 11
court used Guideline § 2A1.1 to impose life sentences, noting that the

defendants "could have . . . anticipated" that death would "result

[from] placing the bomb in the location where it was placed." Id. at

773. The Seventh Circuit, however, remanded for resentencing,

instructing the district court to consider whether the killing was done

intentionally or knowingly or whether it was done recklessly or negligently. The Seventh Circuit explained that "the district court did not

undertake . . . analysis of the mental state of each defendant." Id. at

784. "Without consideration of this factor," the appeals court could

not "accept the district court’s sentencing determination." Id. See

also United States v. Paden, 908 F.2d 1229, 1233 (5th Cir. 1990) (in

case of arson that caused the death of a firefighter, noting that the district court departed downward under § 2A1.1 based on its determination that the death was not caused knowingly or intentionally). 

In this case the district court made no finding that Carr knew that

the apartment building was occupied. Rather, the court found that "the

only reasonable belief would be [that] there were people" present in

the building. But a finding of what Carr reasonably should have

known, as opposed to what he actually did know, does not support the

conclusion that Carr knowingly caused the death of another. See

United States v. Bader, 956 F.2d 708, 710 (7th Cir. 1992) ("Although

the sentencing guidelines do not define ‘knowingly,’ we doubt that

the Sentencing Commission equated ‘knowing’ with ‘should have

known’ or ‘could have concluded.’").*

The district court did find that Carr knew that the 730 South Beaumont Avenue structure was an apartment building based on evidence

of multiple mailboxes and gas meters outside, visible apartment num-

*Of course, a finding that Carr knew that the building was occupied

would not necessarily mean that Carr knew that death was practically

certain to result from his actions. For example, Carr’s level of awareness

about how quickly and intensely the fire was likely to burn might also

be relevant in determining whether Carr knew that death was practically

certain to result from his actions. We express no view on what the evidence indicates with regard to this point. We simply emphasize that our

discussion of Carr’s knowledge (or lack thereof) that the building was

occupied does not mean that this is the only fact relevant to whether Carr

knew that death was practically certain to result from his actions. 

12 UNITED STATES v. CARR
bers inside, and cars parked next to the building. These facts certainly

support a finding of recklessness. Indeed, the district court concluded

that these facts "create[ ] a finding of reckless indifference, wilful

indifference." These words suggest that the district court found that

Carr acted recklessly (with an awareness of a substantial risk that

death would result, see U.S.S.G. § 2A1.4, cmt. n.1) but not that he

acted knowingly (with an awareness that death was "practically certain" to result, see U.S. Gypsum Co., 438 U.S. at 445). 

Of course, the district court went on to say that its finding of reckless indifference or wilful indifference "equates to knowledge." It is

not clear whether the district court meant that a finding of recklessness is the same thing as a finding of knowledge (which, as we have

explained, would be error) or whether it meant that the evidence supported a finding of both recklessness and knowledge (which would be

sustainable if the facts were sufficient). We therefore vacate Carr’s

sentence and remand for resentencing. If the district court finds that

Carr acted knowingly, then it may resentence him to life in prison. If

the court finds that Carr acted recklessly but not knowingly, then it

should consider the downward departure encouraged by application

note 1 to § 2A1.1. 

IV.

In sum, we affirm Carr’s conviction because the indictment’s

defect, the failure to allege that the building was damaged or

destroyed by fire, did not seriously affect the fairness, integrity, or

public reputation of the proceedings in this case. We vacate Carr’s

sentence and remand for the district court to determine whether Carr

knowingly caused the death or recklessly caused it. If Carr acted with

a reckless (but not knowing) state of mind, then a downward departure may be warranted under application note 1 to Guideline § 2A1.1.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

UNITED STATES v. CARR 13