Whether 'attempted use' in the elements clause means taking a substantial step toward the use of physical force plus the specific intent to use such force

QUESTION PRESENTED David Linehan was charged with, as relevant here, soliciting a crime of violence under 18 U.S.C. § 373(a). That provision punishes the solicitation of a federal felony that has “as an element the use, attempted use, or threatened use of physical force” against property or another person. Specifically, Linehan was charged with soliciting the transportation of an explosive under 18 U.S.C. § 844(d). That provision, in turn, makes it a felony to “transport[] or receive[] .. . in interstate ...commerce any explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual” or damage any property. As pertinent here, a jury convicted Linehan of the solicitation offense and the Ninth Circuit affirmed in a published opinion. The court of appeals held that § 844(d) categorically requires the “attempted use” of physical force and is therefore a crime of violence under § 373(a). But in doing so, the court concluded that “attempted use” in the elements clause requires only taking a “substantial step” toward the use of physical force, and does not also require “a mens rea commensurate with that required for attempt crimes,” thereby creating a circuit split and departing from the wellsettled meaning of attempt in criminal law. The question presented is: Whether “attempted use” in the elements clause means taking a substantial step toward the use of physical force plus the specific intent to use such force. (i)