FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JULIO CESAR VILLAVICENCIO,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney

General,

Respondent.

No. 13-74324

Agency No.

A090-179-539

ORDER AND

AMENDED

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted April 20, 2017

San Francisco, California

Filed January 5, 2018

Amended September 11, 2018

Before: Mary M. Schroeder and Johnnie B. Rawlinson,

Circuit Judges, and William H. Stafford, Jr.,*

District Judge.

Order;

Opinion by Judge Rawlinson

* The Honorable WilliamH. Stafford, Jr., United States District Judge

for the Northern District of Florida, sitting by designation.
2 VILLAVICENCIO V. SESSIONS

SUMMARY**

Immigration

The panel filed: 1) an order granting in part Respondent’s

motion to amend the opinion filed on February 20, 2018, and

amending the opinion in this case, published at 879 F.3d 941

(9th Cir. 2018); and 2) an amended opinion granting Julio

Cesar Villavicencio’s petition for review of the Board of

Immigration Appeals’ decision that affirmed findings of

removability and ineligibility for cancellation of removal. 

In the amended opinion, the panel concluded that

Villavicencio was not removable for a controlled substance

offense under 8 U.S.C. § 1227(a)(2)(B)(i) because the statutes

under which he was convicted of conspiracy to possess

certain drugs, Nevada Revised Statutes §§ 199.480 and

454.351, are overbroad and indivisible. 

The panel held that the Nevada conspiracy statute, N.R.S.

§ 199.480, is overbroad when compared to the generic

definition of conspiracy because the Nevada statute lacks the

requisite “overt act” element. Therefore, the panel concluded

that the categorical approach may not be used to determine

removability. The panel also concluded that application of

the modified categorical approach is foreclosed because this

court has already determined that N.R.S. § 199.480 is

indivisible.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
VILLAVICENCIO V. SESSIONS 3

The panel further held that N.R.S. § 454.351, which

covers any drug which may not be lawfully introduced into

interstate commerce under the Federal Food, Drug and

Cosmetic Act, is categorically overbroad relative to the

substances controlled under 21 U.S.C. § 802. 

The panel also concluded that, although N.R.S. § 454.351

lists multiple means of violation, i.e., possessing, procuring,

or manufacturing certain drugs, because jurors need not agree

on the means of the violation, the statute must still be

regarded as indivisible. In so concluding, the panel noted

that: 1) there is no authoritative state court decision

addressing whether the alternatives listed in the statute create

elements or alternative means of violating the statute;

2) nothing in the language of the statute itself suggests that

the alternative phrasing represents alternative elements versus

means; 3) the listed alternatives carry no different

punishments; 4) the mere fact that a statute is phrased in the

disjunctive does not alone translate into a listing of elements

rather than means; and 5) while there is no model jury

instruction addressing N.R.S. § 454.351, a Nevada jury may

generally convict without being unanimous as to the

underlying means of committing the offense. 

Accordingly, the panel held that, because N.R.S.

§ 454.351 is overbroad and indivisible, the statute cannot be

used as a predicate offense to support removal. The panel

further noted that its reversal of the removability

determination terminates the removal proceedings, and that

the panel need not and would not address cancellation of

removal.
4 VILLAVICENCIO V. SESSIONS

COUNSEL

Kari E. Hong (argued), Supervising Attorney; Katherine

Horigan (argued) and Yara Kass-Gergi (argued), Certified

Law Students; Ninth Circuit Appellate Project, Boston

College Law School, Newton, Massachusetts; for Petitioner.

Dawn S. Conrad (argued) and Edward E. Wiggers, Senior

Litigation Counsel, Office of Immigration Litigation, Civil

Division, United States Department of Justice, Washington,

D.C., for Respondent.

Robert M. Loeb and Thomas M. Bondy, Orrick Herrington &

Sutcliffe LLP, Washington, D.C.; Aaron W. Scherzer, Orrick

Herrington & Sutcliffe LLP, New York, New York; Brian P.

Goldman, Orrick Herrington & Sutcliffe LLP, San Francisco,

California; Jayashri Srikantiah and Lisa Weissman-Ward,

Immigrants’ Rights Clinic, Mills Legal Clinic, Stanford,

California; Manuel Vargas and Andrew Wachtenheim,

Immigrant Defense Project, New York, New York; for Amici

Curiae Immigrant Defense Project, American Immigration

Lawyers Association, Asian Americans Advancing

Justice–Asian Law Caucus, Community Legal Services in

East Palo Alto, Detention Watch Network, Florence

Immigrant and Refugee Rights Project, Heartland Alliance’s

National Immigrant Justice Center, Immigrant Legal

Resource Center, National Immigration Law Center, National

Immigration Project of the National Lawyers Guild,

Northwest Immigrant Rights Project, Public Counsel, U.C.

Davis Immigration Law Clinic, and Centro Legal de la Raza.
VILLAVICENCIO V. SESSIONS 5

ORDER

Respondent’s Motion To Amend Opinion filed on

February 20, 2018 is GRANTED IN PART. The opinion in

this case, published at 879 F.3d 941 (9th Cir. 2018), is

hereby amended as follows:

1. 879 F.3d at 944, first sentence - insert <violations of>

between <removal,> and <Nevada Revised Statutes>.

2. 879 F.3d at 944, Background Section, second

sentence - delete the period following <205.220> and

replace with <, respectively.>.

3. 879 F.3d at 945, Discussion Section, second

paragraph - insert <, as amended> following the

Ragasa citation.

4. 879 F.3d at 946, Subsection A, first paragraph, last

line - replace <See Garcia-Santana, 774 F.3d at 534>

with <See id.>

5. 879 F.3d at 947, Subsection B, line 2 - delete space

preceding second bracket.

6. 879 F.3d at 947, Subsection B, first paragraph, last

line - insert the following language: <, abrogated on

other grounds as recognized by Ragasa, 752 F.3d at

1175.

7. 879 F.3d at 947, Subsection B, second paragraph, line

11 - delete the language following <N.R.S.

§ 454.351>.
6 VILLAVICENCIO V. SESSIONS

8. 879 F.3d at 947, Subsection B - insert the following

language following the third paragraph:

There is no authoritative state

court decision addressing whether the

alternatives listed in the statute create

elements or alternative means of

violating the statute, and nothing in

the language of the statute itself

suggests that the alternative phrasing

represents alternative elements

versus alternative means. The listed

alternatives carry no different

punishments; they a r e a ll

misdemeanors. See N.R.S. § 454.31;

see also Mathis, 136 S. Ct. at 2256

(“If statutory alternatives carry

different punishments, then under

Apprendi they must be elements. . . .)

(citations omitted).

The mere fact that a statute is

phrased in the disjunctive does not

alone translate into a listing of

elements rather than means. See

Rendon, 764 F.3d at 1086. “Only

when state law requires that in order

to convict the defendant the jury must

unanimously agree that he committed

a particular substantive offense

contained within the disjunctively

worded statute are we able to conclude

that the statute contains alternative
VILLAVICENCIO V. SESSIONS 7

elements and not alternative means.” 

Id. (emphases in the original).

There is no model jury instruction

addressing N.R.S. § 454.351. 

Generally, in Nevada, a jury may

convict without being unanimous as to

the underlying means of committing

the offense. See, e.g., Triana v. State,

No. 54818, 2010 WL 3504809, at *1

(Nev. Jun. 9, 2010); Garcia-Gaona v.

State, No. 63255, 2014 WL989732, at

*2 (Nev. Mar. 12, 2014) (“A

unanimous general verdict of guilt

will support a conviction so long as

there is substantial evidence in support

of one of the alternate theories of

culpability.”) (quoting Anderson v.

State, 118 P.3d 184, 186 (Nev. 2005)).

9. 879 F.3d at 948, line 3 - delete <the> between

<because> and <jurors>.

Future petitions for rehearing will not be entertained.
8 VILLAVICENCIO V. SESSIONS

OPINION

RAWLINSON, Circuit Judge:

Petitioner Julio Cesar Villavicencio seeks review of a

decision from the Board of Immigration Appeals (BIA)

affirming findings of removability and of ineligibility for

cancellation of removal made by an Immigration Judge (IJ). 

Villavicencio was removed pursuant to the provisions of

8 U.S.C. § 1227(a)(2)(B)(i).1 Villavicencio maintains that the

state crimes underlying his removal, violations of Nevada

1

 8 U.S.C. § 1227(a)(2)(B)(i) provides in pertinent part:

(a) Classes of deportable aliens

Any alien . . . in and admitted to the United States shall,

upon the order of the Attorney General, be removed if

the alien is within one or more of the following classes

of deportable aliens:

. . .

(2) Criminal offenses

. . .

(B) Controlled substances

(i) Conviction

Any alien who at any time after admission has been

convicted of a violation of (or a conspiracy or attempt

to violate) any law or regulation of a state . . . relating

to a controlled substance (as defined in section 802 of

Title 21), . . . is deportable.
VILLAVICENCIO V. SESSIONS 9

Revised Statutes (N.R.S.) §§ 199.4802and 454.3513are not

a categorical match to the federal generic statutes because

they are overbroad and indivisible. We agree with

Villavicencio and GRANT his petition for review.

I. BACKGROUND

Villavicencio is a native and citizen of Mexico, who

entered the United States illegally in 1979 and adjusted his

status to lawful permanent resident in the following decade. 

On January 20, 2010, an information was filed in Nevada

charging Villavicencio with burglary and grand larceny under

N.R.S. §§ 205.060 and 205.220, respectively. The state

2

 N.R.S. § 199.480 provides in pertinent part:

3. Whenever two or more persons conspire:

(a) To commit any crime other than those set forth

in subsections 1 and 2, and no punishment is otherwise

prescribed by law;

. . .

each person is guilty of a gross misdemeanor.

3

 N.R.S. § 454.351 provides in pertinent part:

1. Any person within this State who possesses,

procures, obtains, processes, produces, derives,

manufactures, sells, offers for sale, gives away or

otherwise furnishes any drug which may not be

lawfully introduced into interstate commerce under the

Federal Food, Drug and Cosmetic Act is guilty of a

misdemeanor.

(Footnote reference omitted).
10 VILLAVICENCIO V. SESSIONS

subsequently filed two amended informations containing the

same charges, and a third amended information charging

Villavicencio solely with grand larceny. A judgment of

conviction was entered on the grand larceny charge.

Three months before entry of the judgment of conviction

on the grand larceny charge, an information was filed in

Nevada charging Villavicencio with possession of a

controlled substance with intent to sell (N.R.S. 453.337), and

sale of a controlled substance (N.R.S. 453.321), identifying

methamphetamine as the controlled substance. An amended

information charged Villavicencio with conspiracyto possess

drugs that may not be introduced into interstate commerce

(N.R.S. 199.480 and N.R.S. 454.351), also identifying

methamphetamine as the controlled substance. Villavicencio

agreed to plead guilty to three conspiracy counts in two

separate cases. Judgments of conviction were entered in both

cases pursuant to the terms of the plea agreement.

The Department of Homeland Security (DHS)

subsequently served Villavicencio with a Notice to Appear

charging him with removability under 8 U.S.C.

§ 1227(a)(2)(A)(iii) for having been convicted of an

aggravated felony relating to a theft offense, and under

8 U.S.C. § 1227(a)(2)(B)(i) for having been convicted of a

violation relating to a controlled substance. At his removal

proceedings, Villavicencio admitted that he was not a citizen

or national of the United States, that he was a native and

citizen of Mexico, and that his status was adjusted to that of

a lawful permanent resident. Villavicencio denied that he

was convicted of grand larceny and that he was convicted of

a conspiracy to possess drugs. Nevertheless, the IJ found

Villavicencio removable, noting that the government had
VILLAVICENCIO V. SESSIONS 11

withdrawn the charge relating to the theft conviction, leaving

only the drug conspiracy charge as the basis of removal.

Villavicencio appealed the IJ’s decision to the Board of

Immigration Appeals (BIA). The BIA affirmed the IJ’s

removability determination, and Villavicencio filed a timely

petition for review.

II. STANDARD OF REVIEW

“Where, as here, the BIA conducts its own review of the

evidence and law, our review is limited to the BIA’s decision,

except to the extent that the IJ’s opinion is expressly adopted.

We review de novo all questions of law, including whether a

particular conviction qualifies as an aggravated felony.” 

Young v. Holder, 697 F.3d 976, 981 (9th Cir. 2012) (en banc)

(citations and internal quotation marks omitted). “Whether

a particular conviction constitutes a removable offense is a

question of law. . .” Alvarado v. Holder, 759 F.3d 1121, 1126

(9th Cir. 2014). “We review factual findings for substantial

evidence. The BIA’s factual findings are conclusive unless

any reasonable adjudicator would be compelled to conclude

to the contrary.” Young, 697 F.3d at 981 (citations and

internal quotation marks omitted).

III. DISCUSSION

Villavicencio’s removal under 8 USC § 1227(a)(2)(B)(i)

was predicated on his state convictions for violations of 

N.R.S. § 199.490 and N.R.S. § 454.351. “We analyze

whether a conviction qualifies as a predicate offense for

removal purposes by employing the framework the Supreme

Court constructed in Taylor v. United States, 495 U.S. 575

(1990). . . .” Alvarado, 759 F.3d at 1126 (citation omitted). 
12 VILLAVICENCIO V. SESSIONS

This framework is conducted using a three-step process. See

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

At the first step, we employ “the categorical approach, [in

which] we examine only the statutory definition of the crime

to determine whether the state statute of conviction renders an

alien removable under the statute of removal, without looking

to the actual conduct underlying the petitioner’s offense.” 

Ragasa v. Holder, 752 F.3d 1173, 1176 (9th Cir. 2014), as

amended (citations and internal quotation marks omitted). “If

this categorical approach reveals that the elements of the state

crime are the same as or narrower than the elements of the

federal offense, then the state crime is a categorical match

. . .” Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir.

2015) (citation and internal quotation marks omitted). On the

other hand, if the categorical approach reveals that the

elements of the state are crime are broader than the elements

of the federal offense, then the state crime is not a categorical

match. See Mathis v. United States, 136 S. Ct. 2243, 2251

(2016).

In a narrow range of cases, when a state statute is broader

than the elements of the federal offense, we may employ the

modified categorical approach to determine if the state crime

is a match for the federal offense. See Lopez-Valencia,

798 F.3d at 867–68. Use of the modified categorical

approach is available only if the state statute contains

alternative elements, and the alternative element which forms

the basis of the conviction conforms to the federal offense

that is the comparator offense. See Descamps, 133 S.Ct. at

2283–84. In that circumstance, the statute is considered to be

“divisible,” and amenable to application of the modified

categorical approach. Id. at 2284.
VILLAVICENCIO V. SESSIONS 13

The statute of removal, 8 USC 1227(a)(2)(B)(i), provides

in relevant part: “Any alien who at any time after admission

has been convicted of a violation of (or a conspiracy or

attempt to violate) any law or regulation of a State, the United

States, or a foreign country relating to a controlled substance

(as defined in section 802 of Title 21[4]) . . . is deportable.” 

In other words, (1) any alien (2) convicted of a conspiracy

under state law (3) relating to a controlled substance as

defined under 21 U.S.C. § 802, is deportable. See 8 USC

1227(a)(2)(B)(i).

A. N.R.S. § 199.480

Villavicencio was convicted of a conspiracy in violation

of N.R.S. § 199.480. Villaivicencio argues that the Nevada

drug conspiracy statute is overbroad when compared to the

generic definition of conspiracy. The Nevada conspiracy

statute prohibits “two or more persons” from “conspir[ing]

[t]o accomplish any criminal or unlawful purpose, or to

accomplish a purpose, not in itself criminal or unlawful, by

criminal or unlawful means.” N.R.S. § 199.480; see also

United States v. Garcia-Santana, 774 F.3d 528, 534 (9th Cir.

2014) (“Nevada law defines a conspiracy as an agreement

between two or more persons for an unlawful purpose. . . .”)

(citations omitted). No proof of an overt act in furtherance of

the conspiracy is required. See id.

4

21 U.S.C. § 802, also known as the “Controlled Substances Act,”

(CSA) enumerates “five schedules of controlled substances.” Raich v.

Gonzales, 500 F.3d 850, 854 (9th Cir. 2007) (citation and internal

quotation marks omitted). “Controlled substances are placed on a

particular schedule based on their potential for abuse, their accepted

medical use in treatment, and the physical and psychological

consequences of abuse of the substance. . . .” Id. (citation omitted).
14 VILLAVICENCIO V. SESSIONS

The generic definition of conspiracy is referenced in

8 U.S.C. § 1101(a)(43)(U). See id. The statute provides in

relevant part that “an attempt or conspiracy to commit an

offense described [in the paragraph defining aggravated

felonies] constitutes an aggravated felony. 8 U.S.C. § 1101

(a)(43)(U). In Garcia-Santana, we held that the generic

definition of conspiracy requires the performance of an overt

act. See 774 F.3d at 534. Because Nevada’s conspiracy

statute lacks the requisite “overt act” element, it “criminalizes

a broader range of conduct than the properly determined

generic definition of conspiracy,” and the categorical

approach may not be used to determine removability. Id.; 

see also Marinelarena v. Sessions, 869 F.3d 780, 786 n.2 (9th

Cir. 2017) (“Garcia-Santana held that Nevada’s conspiracy

statute, Nev. Rev. Stat. § 199.480, is overbroad because it

does not contain, as an element, an overt act”).

Ordinarily, once we have determined that a statute is

overbroad, we then determine whether or not a statute is

divisible. See Lopez-Valencia, 798 F.3d at 867–68. 

However, we have already determined that Nevada’s

conspiracy statute is not divisible. See Garcia-Santana, 774

F.3d at 534 n.3 (“The Nevada conspiracy statute is not a

divisible statute that lists potential offense elements in the

alternative. . . .”) (citations and internal quotation marks

omitted). Consequently, application of the modified

categorical approach to this statute is foreclosed. See id.

B. N.R.S. § 454.351

“The removal provision [of 8 U.S.C. 1227(a)(2)(B)(i)] is

. . . satisfied when the elements that make up the state crime

of conviction relate to a federally controlled substance.” 

Mellouli v. Lynch, 135 S. Ct. 1980, 1990 (2015). Under the
VILLAVICENCIO V. SESSIONS 15

categorical approach, the proper analysis turns on whether the

state drug conviction “limits the meaning of ‘controlled

substance,’ for removal purposes, to the substances controlled

under [21 U.S.C. § 802.]” Id. at 1990–91; see also RuizVidal v. Gonzalez, 473 F.3d 1072, 1076 (9th Cir. 2007),

abrogated on other grounds as recognized by Ragasa,

752 F.3d at 1175.

The Nevada statute covers “any drug which may not be

lawfully introduced into interstate commerce under the

Federal Food, Drug and Cosmetic Act [21 U.S.C.A. § 301 et

seq.].” N.R.S. § 454.351. The statute may be violated by

“possess[ing], procur[ing], obtain[ing], process[ing],

produc[ing], deriv[ing], manufactur[ing], sell[ing], offer[ing]

for sale, giv[ing] away or otherwise furnish[ing]” any drug

prohibited under the Federal Food, Drug, and Cosmetic Act

(FDCA). N.R.S. § 454.351.

We have recognized that a California drug law that

“regulates the possession and sale of numerous substances

that are not similarly regulated by the CSA” was categorically

overbroad. Ruiz-Vidal, 473 F.3d at 1078. In a similar vein,

our sister circuit has recognized that “the FDCA prohibits

countless activities that are completely unconnected to

controlled substances.” Rojas v. Att’y Gen. of U.S., 728 F.3d

203, 218 (3d Cir. 2013) (citation and internal quotation marks

omitted). Because the Nevada drug statute likewise prohibits

any drug listed under the FDCA, it is categorically overbroad

relative to 21 U.S.C. § 802. See Mellouli, 135 S. Ct. at 1986.

Having determined that the statute is overbroad, we now

turn to an examination of whether the statute is divisible, and

thereby amenable to analysis under the modified categorical

approach. See Lopez-Valencia, 798 F.3d at 867-68. In
16 VILLAVICENCIO V. SESSIONS

analyzing whether a statute is divisible or indivisible, we keep

in mind “[t]he critical distinction . . . that while indivisible

statutes may contain multiple, alternative means of

committing the crime, onlydivisible statutes containmultiple,

alternative elements of functionallyseparate crimes.” Rendon

v. Holder, 764 F.3d 1077, 1084–85 (9th Cir. 2014) (citations

omitted) (emphases in the original). Application of the

modified categorical approach “is appropriate only for

divisible statutes—because the modified categorical approach

as applied to a divisible statute may reveal which alternative

element the state charged and the jury or judge found when

only some alternative elements match the federal, generic

crime.” Id. at 1085 (emphasis in the original). “If the statute

is indivisible, our inquiry ends, because a conviction under an

indivisible, overbroad statute can never serve as a predicate

offense. . . .” Lopez-Valencia, 798 F.3d at 868 (citation and

internal quotation marks omitted) (emphasis in the original). 

There is no authoritative state court decision addressing

whether the alternatives listed in the statute create elements

or alternative means of violating the statute, and nothing in

the language of the statute itself suggests that the alternative

phrasing represents alternative elements versus alternative

means. The listed alternatives carry no different

punishments; they are all misdemeanors. See N.R.S.

§ 454.31; see also Mathis, 136 S. Ct. at 2256 (“If statutory

alternatives carrydifferent punishments, then under Apprendi

they must be elements. . . .) (citations omitted).

The mere fact that a statute is phrased in the disjunctive

does not alone translate into a listing of elements rather than

means. See Rendon, 764 F.3d at 1086. “Only when state law

requires that in order to convict the defendant the jury must

unanimously agree that he committed a particular substantive
VILLAVICENCIO V. SESSIONS 17

offense contained within the disjunctively worded statute are

we able to conclude that the statute contains alternative

elements and not alternative means.” Id. (emphases in the

original).

There is no model jury instruction addressing N.R.S.

§ 454.351. Generally, in Nevada, a jury may convict without

being unanimous as to the underlying means of committing

the offense. See, e.g., Triana v. State, No. 54818, 2010 WL

3504809, at *1 (Nev. Jun. 9, 2010); Garcia-Gaona v. State,

No. 63255, 2014 WL 989732, at *2 (Nev. Mar. 12, 2014) (“A

unanimous general verdict of guilt will support a conviction

so long as there is substantial evidence in support of one of

the alternate theories of culpability.”) (quoting Anderson v.

State, 118 P.3d 184, 186 (Nev. 2005)).

“Any statutory phrase that—explicitly or implicitly—

refers to multiple, alternative means of commission must still

be regarded as indivisible if the jurors need not agree on

which method of committing the offense the defendant used.” 

Rendon, 764 F.3d at 1085. Although the Nevada statute lists

multiple means of violation, i.e., possessing, procuring, or

manufacturing, because jurors need not agree on the means of

violation, the statute “must still be regarded as indivisible,”

and our inquiry is again at an end. Id.; see also LopezValencia, 798 F.3d at 868. Because N.R.S. § 454.351 is

overbroad and indivisible, it cannot be used as a predicate

offense to support removal. See Alvarado, 759 F.3d at 1126. 

IV. CONCLUSION

Villavicencio was not removable under 8 USC

§ 1227(a)(2)(B)(i). N.R.S. §§ 199.480 and 454.351 are both

overbroad. N.R.S. § 199.480 criminalizes a broader range of
18 VILLAVICENCIO V. SESSIONS

conduct than is described in the generic definition of

conspiracy, and N.R.S. § 454.351 encompasses a wider range

of substances than those set forth in the federal Controlled

Substances Act. Because neither statute is divisible, the

modified categorical approach was unavailable to determine

if Villavicencio was convicted of a removable offense. As a

result, Villavicencio is entitled to his requested relief

reversing the determination of removability.

5

PETITION GRANTED.

5 Our reversal of the removability determination terminates the

removal proceedings. We need not and do not address cancellation of

removal.