FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 06-30580 Plaintiff-Appellee,

D.C. No.

v.  CR-03-05047-RBL

DAVID OLINEY TAYLOR,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Ronald B. Leighton, District Judge, Presiding

Argued May 7, 2008;

Resubmitted May 19, 2008

Seattle, Washington

Filed June 26, 2008

Before: Arthur L. Alarcón, Susan P. Graber, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Alarcón

7557
COUNSEL

William C. Broberg, Seattle, Washington, for the defendantappellant. 

Helen J. Brunner and Karyn S. Johnson, Assistant United

States Attorneys, Office of the United States Attorney, Seattle, Washington, for the plaintiff-appellee. 

OPINION

ALARCÓN, Circuit Judge: 

David Oliney Taylor pleaded guilty to nine counts of armed

bank robbery, and one count of bank robbery, in violation of

UNITED STATES v. TAYLOR 7559
18 U.S.C. § 2113. He appeals from the district court’s sentencing decision. He contends that the district court erred in

concluding that he was previously convicted of two crimes of

violence, and consequently in adjusting his advisory sentence

upward pursuant to United States Sentencing Commission

Guidelines Manual (“USSG”) § 4B1.1. He asserts that the district court erred in concluding that his 1986 Arizona state

court conviction for attempted armed robbery was a crime of

violence under USSG § 4B1.2(a)(1) because the court looked

to Arizona intermediate appellate court decisions to determine

that Arizona’s attempt statute, Arizona Revised Statutes § 13-

1001, is coextensive with the federal definition of attempt. He

claims that the statute itself establishes that his conviction was

not a crime of violence because it demonstrates that Arizona’s

definition of attempt is broader than the federal definition. See

Appellant’s Br. at 21 (“[T]he Arizona attempt statute’s plain

language rendered it broad and not coextensive with the federal law of attempt.”). 

We affirm, because we conclude that the district court

properly considered Arizona intermediate appellate court

decisions in determining whether Taylor’s attempted armed

robbery conviction was a categorical crime of violence. We

also agree with the district court that the Arizona and federal

definitions of attempt are coextensive. 

I

The district court sentenced Taylor to 235 months of

imprisonment, five years of supervised release, $33,694 in

restitution, and an assessment of $1,000. Taylor appealed

from the judgment of conviction and the district court’s sentencing decision. We upheld his conviction, but granted a limited remand for resentencing. See United States v. Taylor, No.

04-30174, 142 Fed. Appx. 287, 2005 U.S. App. LEXIS

15174, at *5 (9th Cir. 2005) (unpublished disposition) (“Because we cannot determine from the record whether the district court would have imposed a materially different sentence

7560 UNITED STATES v. TAYLOR
if it had known the Guidelines were advisory, we grant a ‘limited remand.’ ”). 

The presentence report prepared for Taylor’s resentencing

documented his criminal history. It described two Arizona

state court convictions: first, Taylor’s May 1, 1986 conviction

for attempted armed robbery, and second, his March 5, 1992

conviction for armed robbery.1 The presentence report concluded that Taylor qualified as a career offender for purposes

of USSG § 4B1.1 because he “(1) was at least eighteen years

old at the time he committed the instant offense; (2) the

instant offense is a felony crime of violence; and (3) he has

at least two prior felony convictions of a crime of violence.”

During the sentencing proceedings, Taylor argued that his

attempted armed robbery conviction was not a crime of violence. (“Our contention is that Arizona’s general attempt statute is over inclusive for purposes of defining predicate

offenses for the career offender guideline.”). The district court

followed United States v. Sarbia, 367 F.3d 1079 (9th Cir.

2004), and looked to the “applying courts in the state of Arizona” to determine that Arizona’s definition of attempt is

coextensive with the federal definition. Therefore, it concluded that Taylor qualified as a career offender. 

Taylor was resentenced to 235 months of imprisonment,

five years of supervised release, $33,694 in restitution, and an

assessment of $1,000. Taylor filed a timely notice of appeal.

We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18

U.S.C. § 3742(a)(2). 

II

We review a district court’s interpretation of the USSG,

and its determination that a defendant is a career offender, de

1The 1986 conviction was the result of a guilty plea. The 1992 conviction came after a jury verdict. 

UNITED STATES v. TAYLOR 7561
novo. United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.

2003). We review a district court’s application of the USSG

to the facts of a case for abuse of discretion. United States v.

Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006).

A

Taylor contends that the district court erred in concluding

that Arizona’s attempt statute, Arizona Revised Statutes § 13-

1001, did not include conduct beyond the federal definition of

attempt. He argues that the district court erred by relying on

Arizona intermediate appellate court decisions. Taylor maintains that this court’s decision in Sarbia and the Supreme

Court’s decision in James v. United States, 127 S. Ct. 1586

(2007), provide that we cannot rely on an intermediate appellate court’s interpretation of its state’s laws unless its highest

court has so construed the statute in question. Because Arizona’s Supreme Court has not construed section 13-1001, he

contends that the district court was required to look only to

the unambiguous words of the statute. We disagree. 

USSG § 4B1.2(a) defines a “crime of violence” as 

any offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another, or 

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another. 

In determining whether a state crime is a crime of violence,

“we use the categorical approach” described in Taylor v.

United States, 495 U.S. 575 (1990). United States v. Rendon7562 UNITED STATES v. TAYLOR
Duarte, 490 F.3d 1142, 1146 (9th Cir. 2007). “Under the categorical approach a court must ‘look only to the fact of conviction and the statutory definition of the prior offense’ when

determining whether the offense qualifies under a definition

in the Guidelines.” Id. (quoting Taylor, 495 U.S. at 602). 

[1] For purposes of USSG § 4B1.2(a), a state offense qualifies as a crime of violence if the state crime’s definition is

coextensive with the crime’s common-law or “federal” definition. See Sarbia, 367 F.3d at 1085-86 (comparing Nevada’s

definition of attempt with the common-law definition). For

purposes of determining whether an attempt crime is a crime

of violence, we have stated that “[a]t common law an

attempt[ ] was defined as the specific intent to engage in criminal conduct and . . . an overt act which is a substantial step

towards committing the crime.” Id. at 1086 (internal quotations omitted).2

The Supreme Court has instructed that 

to find that a state statute creates a crime outside the

generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires a

realistic probability, not a theoretical possibility, that

the State would apply its statute to conduct that falls

outside the generic definition of a crime. To show

that realistic possibility, an offender, of course, may

show that the statute was so applied in his own case.

But he must at least point to his own case or other

cases in which the state courts in fact did apply the

statute in the special (nongeneric) manner for

which he argues. 

2We use the terms “federal definition” and “common-law definition”

interchangeably in the context of crimes of violence. See, e.g., Sarbia, 367

F.3d at 1086. 

UNITED STATES v. TAYLOR 7563
Gonzales v. Duenas-Alvarez, 127 S. Ct. 815, 822 (2007)

(emphasis added). 

In Sarbia, we concluded that, although 

Nevada requires proof that the defendant has performed “some act” rather than a “substantive step”

towards the commission of the crime[,] . . . . after

reviewing numerous Nevada Supreme Court opinions on the subject, we are persuaded that the terms

“some act” or “slight act,” as used in the Nevada

caselaw, have the same operational meaning as “substantial step,” as used in the traditional common-law

definition of attempt. 

367 F.3d at 1086. Taylor’s argument that this court’s decision

in Sarbia did not cite intermediate decisions is misleading.

Nevada does not have an intermediate appellate court, so the

absence of such citations proves nothing about what cases we

should look to in a state that has such a court. Thus, Sarbia

does not support Taylor’s argument that the district court

erred by relying on intermediate appellate court decisions. 

In James, the Supreme Court concluded that a Florida statute criminalized an offense that by its nature presented “a

serious potential risk of injury to another”; therefore, the

offense qualified as a violent felony for purposes of the

Armed Career Criminal Act of 1984. 127 S. Ct. at 1597-98.

In determining whether the attempt crime satisfied the violent

felony definition, the Court analyzed “what constitutes

attempted burglary under Florida law.” Id. at 1594. It noted

that “[o]n its face, Florida’s attempt statute requires only that

a defendant take ‘any act toward the commission’ of burglary.” Id. (quoting Fla. Stat. § 777.04(1)). 

The Court looked beyond the text of the Florida statute and

considered how Florida’s highest court, and its appellate

courts, defined attempted burglary. The Court stated that,

7564 UNITED STATES v. TAYLOR
“while the statutory language is broad, the Florida Supreme

Court has considerably narrowed its application in the context

of attempted burglary,” and “Florida’s lower courts appear to

have consistently applied this heightened standard.” Id. Contrary to Taylor’s argument, the Court did not hold in James

that we may not rely on a state’s intermediate appellate courts

in determining how a state actually applies an attempt statute.

In fact, in James, the Court cited two Florida intermediate

appellate court decisions, Richardson v. State, 922 So. 2d 331,

334 (Fl. Ct. App. 2006), and Davis v. State, 741 So. 2d 1213,

1214 (Fl. Dist. Ct. App. 1999), for the proposition that mere

preparation is not enough to constitute attempt under Florida

law. James, 127 S. Ct. at 1594. 

[2] Taylor has cited no authority, and we are aware of none,

that requires a district court to disregard an opinion rendered

by an intermediate appellate court that has interpreted state

law. Neither the Supreme Court nor any Circuit Court of

Appeals has determined whether a district court is precluded

from applying the decisions of intermediate state appellate

courts in deciding whether a state criminal statute is coextensive with federal law. However, the Supreme Court has held,

in a case in which jurisdiction rested on diversity of citizenship, that 

Where an intermediate appellate state court rests its

considered judgment upon the rule of law which it

announces, that is a datum for ascertaining state law

which is not to be disregarded by a federal court

unless it is convinced by other persuasive data that

the highest court of the state would decide otherwise.

West v. AT&T, 311 U.S. 223, 237 (1940). We follow this principle here. 

[3] We are persuaded that a state intermediate appellate

court’s holding takes a statute’s application from “legal imagination” to “realistic probability.” The district court did not err

UNITED STATES v. TAYLOR 7565
in relying on Arizona intermediate appellate court opinions.

Accordingly, we must consider the question whether, under

Arizona caselaw, Taylor’s attempted armed robbery conviction was a crime of violence because it is an offense that “has

as an element the use, attempted use, or threatened use of

physical force against the person of another.” USSG

§ 4B1.2(a)(1). 

B

[4] Under Arizona law, 

A person commits robbery if in the course of taking

any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent

either to coerce surrender of property or to prevent

resistance to such person taking or retaining property. 

Ariz. Rev. Stat. § 13-1902 (emphasis added). 

A person commits armed robbery if, in the course of

committing robbery . . . such person or an accomplice: 

1. Is armed with a deadly weapon or a simulated

deadly weapon; or 

2. Uses or threatens to use a deadly weapon or dangerous instrument or a simulated deadly weapon. 

§ 13-1904(A). Armed robbery under Arizona law involves the

threat or use of force; therefore, that offense is a crime of violence pursuant to § 4B1.2(a)(1). 

[5] “[A]n attempt to commit a crime of violence is itself a

crime of violence.” United States v. Wenner, 351 F.3d 969,

7566 UNITED STATES v. TAYLOR
976 (9th Cir. 2003) (citing USSG § 4B1.2 cmt. n.1). When the

text of an attempt statute deviates from the federal definition

of attempt, however, we must look to state caselaw to determine whether the state’s definition is coextensive with the

federal definition, and therefore qualifies as an attempt for

purposes of the USSG. Sarbia, 367 F.3d at 1085-86. 

[6] Arizona’s attempt statute provides that a person commits an attempt to commit a crime if he or she “[i]ntentionally

does or omits to do anything which, under the circumstances

as such person believes them to be, is any step in a course of

conduct planned to culminate in commission of an offense.”

Ariz. Rev. Stat. § 13-1001(A)(2). “At common law an

attempt[ ] was defined as the specific intent to engage in criminal conduct and . . . an overt act which is a substantial step

towards committing the crime.” Sarbia, 367 F.3d at 1086

(internal quotations omitted). The wording of the Arizona

statute deviates from and is broader than the federal definition; therefore, we must look to Arizona caselaw to determine

if section 13-1001(A)(2) is applied in a manner that is contrary to the federal or common-law definition of an attempt.

[7] In State v. Fristoe, 658 P.2d 825, 830 (Ariz. Ct. App.

1982), the Arizona Court of Appeals held twenty-six years

ago that an attempt under Arizona law requires a substantial

step, and that “the legislature merely intended to simplify the

language of A.R.S. § 13-1001(A)(2) by using ‘any step’ as

opposed to [a] ‘substantial step.’ ” Recently, Fristoe was

cited for the proposition that “ ‘any step’ [is] equivalent to

‘substantial step’ ” for purposes of [Arizona’s] attempt statute.” State v. Johnson, 111 P.3d 1038, 1040 (Ariz. Ct. App.

2005). No case suggests that the Arizona Supreme Court

would decide otherwise. 

[8] Therefore, based on a review of Arizona’s caselaw, it

is clear that Arizona’s definition of attempt is coextensive

with the federal definition. As a result, the district court propUNITED STATES v. TAYLOR 7567
erly concluded that Taylor’s attempted armed robbery conviction was a crime of violence pursuant to USSG § 4B1.2(a)(1).

AFFIRMED.

7568 UNITED STATES v. TAYLOR