United States v. Jayson Fulcher

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Not for Publication in West’s Federal Reporter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.

More From ALM

Discover how AI is transforming small law firms with increased efficiency, accuracy, and productivity. This latest report reveals key insights from a 2024 survey, showcasing how professionals are leveraging AI to improve billable hours and client services. Download now to explore the benefits and elevate your legal practice.

The Positive Impact of AI at Small Law Firms: 4 Key Insights

Brought to you by LexisNexis®
Download Now

Premium Subscription

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now

Team Accounts

Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now

Bundle Subscriptions

Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now

From Data to Decisions

Dynamically explore and compare data on law firms, companies, individual lawyers, and industry trends.

Exclusive Depth and Reach.

Law.com Compass includes access to our exclusive industry reports, combining the unmatched expertise of our analyst team with ALM’s deep bench of proprietary information to provide insights that can’t be found anywhere else.

Big Pictures and Fine Details

Law.com Compass delivers you the full scope of information, from the rankings of the Am Law 200 and NLJ 500 to intricate details and comparisons of firms’ financials, staffing, clients, news and events.

The National Law Journal Legal Awards 2024

October 24, 2024
Georgetown, Washington D.C.

The National Law Journal honors attorneys & judges who've made a remarkable difference in the legal profession in the D.C. area.

Learn More

GlobeSt. Women of Influence (WOI) 2024

July 22, 2024 - July 24, 2024
Lake Tahoe, CA

GlobeSt. Women of Influence Conference celebrates the women who drive the commercial real estate industry forward.

Learn More

New York Legal Awards 2024

September 05, 2024
New York, NY

The New York Law Journal honors attorneys and judges who have made a remarkable difference in the legal profession in New York.

Learn More