The Ninth Circuit has determined that Nevada's conspiracy drug statutes are both overbroad and indivisible as compared to the federal generic definition of conspiracy and the Controlled Substances Act.
With respect to the conspiracy statute, the court noted that Nevada law does not require any overt act in furtherance of the conspiracy to support a conviction.
With respect to the drug statute, the Nevada statute covers “any drug which may not be lawfully introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act." The FDCA prohibits countless activities that are completely unconnected to controlled substance, and thus, not prohibited by the Controlled Substances Act. In addition, although the Nevada statute lists multiple means of violation, i.e., possessing, procuring, or manufacturing, because the jurors need not agree on the means of violation, the statute must still be regarded as indivisible,
The full text of Villavicencio v. Sessions can be found here:
The Ninth Circuit issued an amended decision in this matter on September 1,1, 2018, in which it reiterated its removability finding, but held that this finding mooted out any issue as to the petitioner’s eligibility for cancellation of removal: