The Right Approach to the Categorical Approach Applied to Attempt

April 1, 2014
By Hanging Out with Carl Gunn


  • The crime of attempt, like conspiracy, is defined differently in different jurisdictions, so check your state’s definition against the generic definition.
  • There’s also an argument that the generic definition recognizes the defense of “abandonment,” or “renunciation,” so check whether your state fails to recognize that defense.
  • There’s two bad cases holding California attempt and Nevada attempt satisfy the generic definition, even though the state definitions on their face appear to fall short, but a recent Ninth Circuit case did find one state’s definition overbroad.


Reading the analysis of the Nevada conspiracy statute in theGarcia-Santana case I discussed last week (now published at 743 F.3d 666) – and its more general approach to determining the “generic federal definition” of an offense – brought to mind the offense of “attempt.” That offense appears with “conspiracy” in both the same statutory provision considered in Garcia-Santana, 8 U.S.C. § 1101(a)(43)(U), and the career offender definition of “crime of violence,” see U.S.S.G. § 4B1.2(a), comment. (n.1).

Different jurisdictions have different language in their definitions of “attempt” and/or interpret or apply the same language in their definitions differently, see James v. United States, 550 U.S. 192, 204-06 & nn.3,4 (2007) (collecting federal cases applying different state attempted burglary statutes with differing requirements for how much is necessary to constitute “substantial step”). The federal definition of “attempt” – to be found in case law rather than in a statute – requires the specific intent to commit the crime in question accompanied by an act that constitutes a “substantial step” toward committing the crime, which means an act that “unequivocally demonstrat[es] that the crime will take place unless interrupted by independent circumstances.” United States v. Gonzalez-Monterroso, No. 12-10158, 2014 WL 575952, at *4 (9th Cir. Feb. 14, 2014) (quotingHernandez-Cruz v. Holder, 651 F.2d 1094, 1102 (9th Cir. 2011);United States v. Goetzke, 494 F.3d 1231, 1237 (9th Cir. 2007); and United States v. Buffington, 815 F.2d 1292, 1301 (9th Cir. 1987)). California and Nevada, in contrast, define “attempt” – also in case law, though California has a statutory definition as well, see Cal. Penal Code § 21a – as requiring only “slight acts in furtherance of the design.” People v. Superior Court, 157 P.3d 1017, 1022 (Cal. 2007), quoted in United States v. Saavedra-Velazquez, 578 F.3d 1103, 1104, 1108 (9th Cir. 2009) (emphasis added in Saavedra-Velazquez). See also Van Bell v. State, 775 P.2d 1273, 1275 (Nev. 1989), quoted in United States v. Sarbia, 367 F.3d 1079, 1086 (9th Cir. 2004).

The Ninth Circuit Saavedra-Velazquez case just cited recognized that the court had to compare the state “attempt” definition to a standard federal definition. See id., 578 F.3d at 1106. Though not doing it in as clear a step-by-step fashion as laid out in theGarcia-Santana conspiracy case discussed in last week’s post, the panel in Saavedra-Velazquez did look to two of the three factors laid out in Garcia-Santana. It began by looking to the federal definition of “attempt,” see Saavedra-Velazquez, 578 F.3d at 1107, which you’ll recall, if you read last week’s post, is “probative, but not independently determinative.” Garcia-Santana, 743 F.3d at 673. The Saavedra-Velazquez panel then looked to the Model Penal Code definition, which also has the “substantial step” requirement. See id., 578 F.3d at 1107. The panel then adopted this as the generic federal definition. See 1107-08. The panel in the earlier Sarbia case had used the same definition in comparing the Nevada attempt conviction, though on the ground that it was the common law definition. See id., 367 F.3d at 1085-86.

Given this resolution of what the generic federal definition of “attempt” is and the rather plainly contrasting “slight acts” language in the California and Nevada case law, one might think we have a great argument. As Judge Reinhardt put it in a concurring opinion in the Saavedra-Velazquez case, “[i]t does not take a learned legal scholar to grasp the difference between the words ‘slight’ and ‘substantial,’” id., 578 F.3d at 1110 (Reinhardt, J., specially concurring), and as he put it in the majority opinion, which he also wrote, “[t]he semantic disconnect between ‘slight acts’ . . . and a ‘substantial step’ . . . is obvious,” id. at 1108. Unfortunately, the panel in the Sarbiacase, which got the issue before Judge Reinhardt, found a way to wriggle out of it, based on Nevada’s application of the “slight acts” standard, see id., 367 F.3d at 1086, and Judge Reinhardt and his panel felt bound by that in the Saavedra-Velazquez case,see id., 578 F.3d at 1111 (Reinhardt, J., specially concurring).

Query whether Judge Reinhardt’s criticism in his concurrence creates an argument for en banc review of this case law. And there’s another angle that’s been opened up by the Supreme Court’s recent decision in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013). You may recall my post on Moncrieffe last May in which I suggested that this case means we need to compare not just elements of the state and generic federal definitions but also affirmative defenses. (See “It’s Not Just Differences in Elements You Need to Consider in Applying the Categorical Approach; Think About Differences in Sentencing Factors and Affirmative Defenses as Well” in the May 2013 link at the right.) There’s an argument that California “attempt” falls short of what the generic federal defense requires because it doesn’t recognize and incorporate an affirmative defense of “abandonment,” or “renunciation,” that both the majority of states and the Model Penal Code recognize. For a nice illustration of this argument, see a petition for rehearing en banc, linked here, which was filed in the immigration appeal of Avalos Dimas v. Holder, No. 09-72911, last year. The petition wasn’t granted, but there’s no reason not to keep trying, or even try to go above the Ninth’s head to the Supreme Court.

And there’s other states’ “attempt” convictions to attack even if we can’t get rid of the bad case law on California and Nevada “attempts.” A recent successful attack is reflected in theGonzalez-Monterroso case I cite above. The court recognized there, as it had in Saavedra-Velazquez, that the state definition of “attempt” under which the defendant had been convicted had to meet the generic definition of “attempt.” Gonzalez-Monterroso, 2014 WL 575952, at *1, 4. The court then looked to the definition in the state in which that defendant had been convicted, which was Delaware. See id. at *4. In a sort of mirror image of Saavedra-Velazquez and Sarbia, where the states used different language in their definitions but didn’t apply it more broadly than the generic federal definition, the court found that Delaware used the same “substantial step” language but defined and applied it more broadly. See Gonzalez-Monterroso, 2014 WL 575952, at *5. The court then recognized that this prevented a Delaware “attempt” conviction from qualifying as a federal generic “attempt” offense under the categorical approach. See id. at *6.

Gonzalez-Monterroso also provides a nice illustration of the limits that Descamps v. United States, 133 S. Ct. 2276 (2013) places on use of the “modified categorical approach,” which lets a court look to certain types of court documents in certain cases. Recall that Descamps held a court can use this alternative approach only when the statute is a “divisible” statute, meaning a statute that expressly lists alternative ways of committing a crime. (See “The Rest of My Own Little Supreme Court Update” in the July 2013 link at the right.) While the Delaware “attempt” statute did have two subsections, one of those was simply inapplicable and the other “criminalizes more conduct than the federal attempt statute [actually case law, since there is no federal attempt statute] and is not divisible.” Gonzalez-Monterroso, 2014 WL 575952, at *6.

So don’t stop “attempting” to get rid of those “attempt” convictions. (Pun intended.) Even the bad case law on California and Nevada “attempts” may be open to reconsideration. And other states’ “attempt” convictions may be even more susceptible to attack.