In this Sentencing Guidelines case, the Ninth Circuit reviewed case law from the Delaware Supreme Court to determine whether the court had narrowed that state's unusually broad statutory definition of criminal attempt. It did so despite the fact that the U.S. Supreme Court in Descamps reserved the question of whether review of case law to determine the reach of a statute is permitted under the categorical analysis.
The panel's review of the case law of the Delaware Supreme Court revealed that the definition of attempt in that state really is as broad as the statute implies. Delaware law criminalizes attempt where the defendant has committed an act that leaves no reasonable doubt as to the defendant’s intention to commit the crime he or she is charged with attempting to commit. In other words, a person could be convicted of attempt where he or she has taken a step merely in preparation toward committing a crime. This is in contrast to most states and the generic federal definition, which require both intent and a substantial step toward completion. And a "substantial step" occurs under the federal generic definition when a defendant’s "actions 'unequivocally demonstrat[e] that the
crime will take place unless interrupted by independent circumstances.'"
Since the case law merely confirmed the statutory text, the panel did not need to use the case law to decide that the defendant's attempt conviction here was not a categorical match to the federal definition. Nonetheless, Judge Wallace's concurrence opposed even this on judicial restraint grounds. He wrote that the underlying crime attempted in this case (statutory rape) was not a match to the Sentencing Guidelines definition for a forcible sex offense. As it is not a match, an attempt to commit that crime is not a match to the federal definition either. He would have denied the case on that ground.