Villavicencio v. Sessions, 904 F.3d 658

Petitioner Julio Cesar Villavicencio, a lawful permanent resident, faced removal based on Nevada convictions: a grand larceny conviction and convictions for drug conspiracy/related drug offenses. The government proceeded on the drug conspiracy charge as the basis for removal under 8 U.S.C. § 1227(a)(2)(B)(i).
Villavicencio challenged whether Nevada statutes—N.R.S. § 199.480 (conspiracy) and N.R.S. § 454.351 (drug offenses tied to the FDCA)—categorically match the federal offenses required for deportation.
The Immigration Judge found him removable; the BIA affirmed; Villavicencio petitioned for review in the Ninth Circuit.
The Ninth Circuit applied the Taylor/Descamps three-step categorical/modified-categorical framework to determine whether the state statutes are narrower, congruent with, divisible into elements, or overbroad compared to the federal predicates.
Court concluded N.R.S. § 199.480 is overbroad because it lacks an overt-act requirement in the generic conspiracy definition and is indivisible; N.R.S. § 454.351 is overbroad because it covers any FDCA-prohibited drug (broader than the CSA) and is indivisible because Nevada juries need not unanimously agree on the particular means.
Result: Both statutes are overbroad and indivisible, so Villavicencio’s conviction(s) cannot serve as categorical predicates for removal; the petition is granted and removal reversed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether N.R.S. § 199.480 (Nevada conspiracy) matches the federal generic conspiracy for removability	Villavicencio: Nevada statute is broader because it requires no overt act	DHS: Nevada conspiracy qualifies as a predicate for drug-conspiracy removal	Held: Nevada statute is overbroad (no overt-act element) and indivisible; cannot serve as predicate
Whether N.R.S. § 454.351 (FDCA‑based drug statute) limits “controlled substance” to CSA substances	Villavicencio: Statute covers FDCA drugs not listed in CSA, so broader than 21 U.S.C. § 802	DHS: Nevada conviction relates to controlled substances and supports removal	Held: Statute is overbroad (covers substances beyond CSA) and indivisible; cannot serve as predicate
Whether modified categorical approach can salvage a conviction under either statute	Villavicencio: Even with records, statutes are indivisible so modified approach inapplicable	DHS: If divisible, the court can use documents to identify matching conduct	Held: Both statutes are indivisible; modified categorical approach unavailable
Whether unanimity or jury instructions in Nevada create divisibility for N.R.S. § 454.351	Villavicencio: Nevada law does not require juror unanimity as to means, so alternatives are means not elements	DHS: (implied) statute phrasing could indicate alternative elements	Held: Nevada permits non‑unanimous findings as to means; alternatives are means, so statute is indivisible

Taylor v. United States, 495 U.S. 575 (framework for categorical approach)
Descamps v. United States, 570 U.S. 254 (modified categorical approach available only for divisible statutes)
Mathis v. United States, 136 S. Ct. 2243 (distinguishing elements from means; punishment differences indicate elements)
Mellouli v. Lynch, 135 S. Ct. 1980 (state statute must limit "controlled substance" to CSA substances for removal)
Garcia‑Santana v. United States, 774 F.3d 528 (Nevada conspiracy lacks overt‑act element; overbroad)
Lopez‑Valencia v. Lynch, 798 F.3d 863 (analysis on divisibility and application of modified categorical approach)
Rendon v. Holder, 764 F.3d 1077 (clarifies that jury unanimity and state law determine whether alternatives are elements or means)
Ruiz‑Vidal v. Gonzales, 473 F.3d 1072 (addressing state drug laws broader than the CSA)
Alvarado v. Holder, 759 F.3d 1121 (affirming use of categorical approach for removability)