Julio Villavicencio v. Jefferson Sessions ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO CESAR VILLAVICENCIO, No. 13-74324
Petitioner,
Agency No.
v. A090-179-539
JEFFERSON B. SESSIONS III, Attorney ORDER AND
General, AMENDED
Respondent. 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 William H. 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
between and .
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 Garcia-Santana, 774 F.3d at 534>
with
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 .
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 are all
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 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)).
9. 879 F.3d at 948, line 3 - delete between
and .
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.) §§ 199.4802 and 454.3513 are 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 conspiracy to 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 Ruiz-
Vidal 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, only divisible statutes contain multiple,
alternative elements of functionally separate 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 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
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 Lopez-
Valencia, 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.