Fifth Circuit

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (North Carolina conviction of attempted common law robbery, "the felonious, non-consensual taking of money or personal property from the person or presence of another by means of violence or fear," see N.C. Gen. Stat. 14-1.5, 14-87.1 (setting punishments for attempt and robbery without defining them), presents a close question as to whether it qualifies as a "crime of violence" under USSG 4B1.2 for purposes of imposing a career offender sentence enhancement for a federal robbery conviction, because of the argument that North Carolina defines the term "attempted" more broadly (to require only "slight acts") than the "substantial step" required under the Model Penal Code and the majority of states, as well as 12 circuits; defendant forfeited right to bring this issue by failing to raise it before the district court); cf. United States v. Taylor, 529 F.3d 1232, 1237-38 (9th Cir.2008) (finding that Arizona's attempt statute, which used the phrase "any step," was broader than the federal definition, but that Arizona courts interpreted the statute to mean "substantial step"); United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir.2004) (Nevada's attempt statute and case law uses the "slight act" approach, but is coextensive with the federal, "substantial step" approach).

Sixth Circuit

AGGRAVATED FELONY - ATTEMPT
United States v. Ellis, ___ F.3d ___, 2009 WL 783262 (5th Cir. Mar. 26, 2009) (the Model Penal Code 5.01(1) "substantial step" definition of "attempt" is the majority view, having been adopted by 12 circuits plus 26 states, and arguably should be used to define the term for purposes of the Taylor v. United States analysis in the career offender sentence enhancement context of USSG 4B1.2).

Eighth Circuit

AGGRAVATED FELONIES " ATTEMPT " MERE PREPARATORY CONDUCT HELD INSUFFICIENT
United States v Warnell Reid, ___ F.3d ___, 2014 WL 5314563 (8th Cir. Oct 20, 2014) (Missouri conviction for attempted burglary is not a violent felony under the Armed Career Criminal Act, 18 U.S.C. 924(e)(2), because Missouris statute can be violated by mere preparatory conduct; commentary to the Missouri attempt statute says that "reconnoitering the place contemplated for the commission of the offense" or "possession of materials to be employed in the commission of the offense, which are specially designed for such unlawful use" can be a substantial step sufficient for conviction of attempted burglary); see James v. United States, 550 U.S. 192 (2007) (Florida state courts stated attempt required "an overt act directed toward the entry of a structure" to qualify as attempted burglary, so the court here found it unnecessary to address whether "more attenuated conduct" -- such as the "casing" of a building or neighborhood -- would suffice, but suggested that a statute requiring only "preparatory conduct" might well not qualify).

Ninth Circuit

AGGRAVATED FELONY " ATTEMPT " DEFINITION
United States v. Gonzalez-Monterroso, ___ F.3d ___, 2014 WL 575952 (9th Cir. Feb. 14, 2014) (Delaware definition of Attempt, Del.Code tit. 11, 531(2), 532, is not a categorical match with attempt as defined under the U.S.S.G., because Delaware's statutory definition of "substantial step" is materially different from and encompasses more conduct than the federal generic definition).

AGGRAVATED FELONY " ATTEMPT " COMMERCIAL BURGLARY
Hernandez-Cruz v. Holder, ___ F.3d ___ (9th Cir. Jul.7, 2011) (California conviction of second-degree commercial burglary, in violation of Penal Code 459, did not constitute attempted theft aggravated felony, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), under the modified categorical analysis, because [s]imply entering a commercial building . . . is not in itself a substantial step supporting attempted theft liability.).

AGGRAVATED FELONY - ATTEMPT - ARIZONA ATTEMPT IS BROADER THAN AGGRAVATED FELONY ATTEMPT
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)).

AGGRAVATED FELONY - ATTEMPT - CALIFORNIA ATTEMPT IS ARGUABLY BROADER THAN FEDERAL AGGRAVATED FELONY ATTEMPT
Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007) (California conviction of attempt to commit an offense "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)," attempt under California Penal Code 21a [requiring "a direct but ineffectual act done toward its commission,"] is broader than the federal statute, since California case law has consistently required only a " slight act"); see People v. Superior Court (Decker), 41 Cal.4th 1, 8 (2007); People v. Tillotson, 157 Cal. App. 4th 517 (2007); People v. Anderson, 1 Cal.2d 687, 690 (1934); People v. Berger, 131 Cal. App. 2d 127 (1955); People v. Memro, 38 Cal.3d at p. 658, 698 (1985); People v. Dillon, 34 Cal.3d 441, 455 (1983); People v. Morales, 5 Cal.App.4th 917, 926 (1992); People v. Fiegelman, 33 Cal. App. 2d 100 (1939). Thanks to Kara Hartzler.

Since "slight acts" do not necessarily constitute the "substantial step" necessary to meet the federal definition of "attempt" that controls for purposes of immigration law, the statute is overbroad and the government bears the burden of proving that person is removable through the modified categorical analysis. Even if the state attempt statute is broader than the federal statute, under the modified categorical analysis a person can still be found removable where the record shows that the person committed an overt act constituting a "substantial step" towards commission of the underlying offense. Criminal defense counsel must keep the record of conviction vague, or describe only a slight act.

The government might argue that the issue is foreclosed by United States v. Sarbia, 367 F.3. 1079, 1082 (9th Cir. 2004), but there are strong arguments as to why Sarbia should not control, since the Ninth Circuit has made clear that its decisions interpreting USSG 4B1.1, like Sarbia, do not apply outside the context of that particular sentence guideline, because Commentary 1 is "not constrained by" the aggravated felony definition found at INA 101(a)(43) or by other statutes. United States v. Shumate, 329 F.3d 1026, 1030 n.5 (9th Cir. 2003); United States v. Vidal, 504 F.3d 1072, 1079 n.12 (9th 2007). As a result of this lack of "constrain[t]" found in USSG 4B1.2, the provision at issue in Sarbia, it is interpreted much more expansively than the definition of aggravated felony found in the Act. For example, the Ninth Circuit considers the list found at USSG 4B1.2, "aiding and abetting, conspiring, and attempting," as "non-exhaustive," and inclusive of other offenses such as solicitation. United States v. Shumate, 329 F.3d 1026, 1030 (9th Cir.2003). The aggravated 3 felony definition found at 8 U.S.C. 1101(a)(43)(U), on the other hand, is read as an exhaustive list, specifically excluding offenses such as solicitation. Leyva-Licea v. I.N.S., 187 F.3d 1147, 1150 (9th Cir. 1999). Sarbia is therefore inapplicable to the question of the definition of attempt found in the aggravated felony definition. INA 101(a)(43)(U), 8 U.S.C. 1101(a)(43)(U). The case which directly controls this Courts decision is Rebilas v. Keisler, which directly interprets the aggravated felony definition of "attempt." Even if Sarbia did apply in the immigration context, it has been overruled. Rebilas v. Keisler, 506 F.3d 1161, 1164 (9th Cir. Nov. 2, 2007). See Attorney General of New York v. Soto-Lopez, 476 U.S. 898, 901 (1986) (recognizing implicit overruling); United States v. Reed, 80 F.3d 1419, 1421-22 (9th Cir. 1996) (same). This conclusion is inevitable because to reconcile the two cases would be to find a meaningful difference between taking "any step" to commit a crime, and making "some act" to commit the crime. It is worth noting that Sarbia has also been implicitly overruled on another of its key holdings. In Sarbia, the Ninth Circuit held that shooting into an inhabited dwelling was a "crime of violence" under the Sentencing Guidelines, citing a 1993 decision holding that a similar California conviction (Penal Code 246) had been held to be a "crime of violence." Sarbia, 367 F.3d at 1088 (citing United States v. Weinert, 1 F.3d 889 (9th Cir. 1993 (per curiam)). In 2007, however, the Ninth Circuit held that shooting into an inhabited dwelling under California law was not categorically a "crime of violence." United States v. Narvaez-Gomez, 489 F.3d 970, 976 (9th Cir. 2007). In so holding, the Ninth Circuit cited neither Weinert nor Sarbia. Nonetheless, Narvaez-Gomez implicitly overruled those cases. Thanks to Rachael Keast.