The following excerpt is from USA. v. Pierre, 254 F.3d 872 (9th Cir. 2001):
Assault by striking, beating, or wounding is not a lesser- included offense of Defendant's crime of conviction, which was assault with a dangerous weapon. To identify lesser- included offenses, federal courts follow the "elements" test. Schmuck v. United States, 489 U.S. 705, 716 (1989). Under that test, an offense is not "lesser included " unless (1) the elements of the lesser offense are a subset of the elements of the charged offense, and (2) it is impossible to commit the greater offense without first having committed the lesser. Id. at 716, 719.
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