Not for Publication in West's Federal Reporter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.
     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     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


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

offender [status].              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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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, 

, 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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