US v. Fulcher

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; David H. Souter, Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Unpublished. [10-1674]

Case: 10-1674

Document: 00116226254

Page: 1

Date Filed: 06/28/2011

Entry ID: 5561358

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 10-1674
UNITED STATES,
Appellee,
v.
JAYSON FULCHER,
Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Lynch, Chief Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
Michael J. Sheehan for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.

June 28, 2011

*

The Hon. David H. Souter, Associate Justice (Ret.) of
the Supreme Court of the United States, sitting by designation.

Case: 10-1674

Document: 00116226254

Page: 2

Date Filed: 06/28/2011

Entry ID: 5561358

SOUTER, Associate Justice. 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
§ 4B1.2(a).

risk

of

physical

injury

to

another."

U.S.S.G.

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"

presenting the requisite risk of personal injury.
these

arguments

in

the

district

court,

which

an

offense

Fulcher pressed
overruled

his

objection and treated the New Hampshire conviction as being for a
violent felony.

The government defends the district judge's

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Case: 10-1674

Document: 00116226254

Page: 3

Date Filed: 06/28/2011

Entry ID: 5561358

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.
At the sentencing hearing, the trial judge said that applying
the Guidelines "formulaically . . . often distorts things in terms
of the facts of an individual case," as he found to be true in this
one. He spoke of Fulcher's criminal history beginning with charges
when

he

was

19

and

spanning

his

entire

adult

life,

with

a

repetitive sequence of conviction, incarceration, parole violation,
and further offense.
offender [status].

The "real problem . . . isn't the career
It's the

. . . criminal history of this

particular individual . . . ." After observing the ineffectiveness
of the prior sentences to deter the defendant's drug use and noting
the seriousness of the current offense, and after colloquies with
counsel and the defendant, the court settled on a sentence 39
months

higher

than

the

upper

end

of

the

advisory

range

as

determined without a career offender finding, and 66 months beneath
the minimum for someone in the career offender column.

The judge

paid pointed attention to the object of resolving Fulcher's drug
problem, and after announcing the sentence the judge referred

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Entry ID: 5561358

expressly to the sentencing considerations mandated by 18 U.S.C.
§ 3553(a).

He summed up by stating that the 144-month term was

"sufficient

but

not

more

than

necessary"

to

take

those

considerations "into account."1
There is consequently no reason to believe that the sentence
was affected by the career offender classification, see United
States v. Gerhard, 615 F.3d 7, 35 (1st Cir. 2010), and the
judgement is affirmed on the ground that if any error did occur it
was harmless.
Affirmed.

1

Fulcher raised no question about the pertinence of the
court's concerns under § 3553(a) and related statutes.
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