Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (Arizona conviction of attempted public sexual indecency to a minor, in violation of ARS 13-1001 and 13-1403(B), forbids conduct that falls outside the federal definition of attempted sexual abuse of a minor under INA 101(a)(43)(A), (U), 8 U.S.C. 1101(a)(43)(A) and (U): "Arizona's definition of attempt under ARS 13-1001 is broader than the federal definition of attempt. While the federal definition of attempt requires the defendant to commit an overt act constituting a substantial step towards the crime, United States v. Morales-Perez, 467 F.3d 1219, 1222 (9th Cir. 2006), Arizona's definition of attempt is satisfied if the defendant "[i]ntentionally does or omits to do anything which ... is any step" in the crime. ARS 13-1001(A)(2) (emphasis added); see State v. Fristoe, 135 Ariz. 25, 658 P.2d 825, 829-30 (App.1982). Thus, attempted public sexual indecency to a minor under Arizona law is broader than attempted sexual abuse of a minor under 8 U.S.C. 1101(a)(43)(A) and (U)", and an attempted offense, under Arizona law, does not categorically constitute an "attempt" under the aggravated felony definition of attempt in INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U)).

jurisdiction: 
Ninth Circuit

 

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