United States v. Gonzalez-Monterroso, No. 12-10158 (2-14-14)(Ikuta with M. Smith; Wallace concurring). 

The categorical approach is a SCOTUS Deschamps gift that keeps on giving.  Here, in sentencing for a 1326, the issue is whether a Delaware prior for "attempted rape in the fourth degree" was a COV that resulted in a +16 enhancement.  The district court said "yes."  The 9th said "no."  The state conviction focuses on "attempt" which requires a "substantial step," The federal definition also requires a substantial step.  However, the state definition requires proof of an act demonstrating intent, while the federal definition is an act that unequivocally demonstrates that the crime will take place unless interrupted by independent circumstances.  The state definition is broader than the federal. Solely an act that shows intent is insufficient for the fed; the acts must be set in motion.  Because of the broader net, the state offense is materially different from the federal.  It therefore does not match with the federal generic offense.  It is not a COV.  The 9th leaves for another case, whether state courts can narrow a definition to meet with the federal generic definition.  A modified categorical approach is not available because under Deschamps the offense is not divisible.  Concurring, Wallace argues that the opinion should not examine whether the state supreme court had narrowed the definition through cases, or whether the statute is divisible, because under the narrowest approach, the statute is not a categorical match.