Ninth Circuit

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.