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United States v. Jayson Fulcher

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Not for Publication in West’s Federal Reporter

Before Lynch, Chief Judge, Souter, Associate Justice,*fn1 and Stahl, Circuit Judge.

The appellant, Jayson Fulcher, was convicted of attempted bank robbery and sentenced to a 144-month term of imprisonment after being found to be a career offender as defined by the Sentencing Guidelines, U.S.S.G. § 4B1.1, and thus subject to an enhanced, advisory guideline range of 210-262 months. Career offender status requires, among other things, two prior felony convictions for crimes of violence or controlled substance offenses, and Fulcher excepts to the classification of a New Hampshire witness tampering conviction as a crime of violence under the three-part Guidelines definition: (1) a crime with an element of actual, attempted or threatened use of force; (2) burglary of a dwelling, arson, extortion or criminal use of explosives; or (3) a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a). He points out that under the relevant portion of the witness tampering provision, guilt requires only that the defendant “attempt[] to induce or otherwise cause” a witness to deny or conceal the truth. See N.H. Rev. Stat. Ann. § 641:5(I). It is thus not defined to include a force element; it is not one of the enumerated offenses; and it is not “otherwise” an offense presenting the requisite risk of personal injury. Fulcher pressed these arguments in the district court, which overruled his objection and treated the New Hampshire conviction as being for a violent felony. The government defends the district judge’s conclusion and argues that, in any case, the 12-year duration of his sentence was determined independently of the career offender classification and should be affirmed for that reason. Because the issues implicated in the arguments over application of the residual “otherwise” clause are not developed in the briefs, we affirm on the government’s alternate ground that the sentence was not affected by the district court’s career offender determination.

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