Francis Casildo was convicted of methamphetamine distribution and conspiracy in federal court. At sentencing, the district court classified him as a career offender based on two prior convictions, including a 2006 Nevada state conviction for the sale of controlled substances under Nevada Revised Statute § 453.321(1)(a). This classification significantly increased his sentencing range, resulting in a 235-month prison term. Casildo did not challenge this classification on direct appeal. Later, proceeding pro se, he filed a motion under 28 U.S.C. § 2255 to vacate his sentence, arguing that his Nevada conviction did not qualify as a controlled substance offense under the federal Sentencing Guidelines. The district court dismissed the motion, ruling that the claim was procedurally barred because it was not raised on direct appeal, and alternatively found that the Nevada statute did qualify as a controlled substance offense.
The Ninth Circuit addressed two primary issues: whether Casildo's claim was procedurally barred and whether his prior conviction qualified as a controlled substance offense. First, the court held that Casildo had shown cause and prejudice to excuse his procedural default. The court found that his appellate counsel provided ineffective assistance by failing to challenge the career offender enhancement, as the legal argument regarding the indivisibility of the Nevada statute was sufficiently foreshadowed in existing case law at the time. The court rejected the government's argument that Casildo suffered no prejudice because his sentence fell at the bottom of the Guidelines range, noting that a miscalculation of the Guidelines range is itself a significant procedural error. Second, on the merits, the court applied the categorical and indivisibility analyses under U.S.S.G. § 4B1.1. The court agreed that Nevada Revised Statute § 453.321(1)(a) is overbroad because it covers substances not listed in the federal Controlled Substances Act. Crucially, the court held that the statute's actus reus clause, which lists various prohibited acts like selling, transporting, or prescribing, is indivisible. Following the precedent set in Villavicencio v. Sessions, the court reasoned that because Nevada jurors need not agree on which specific act the defendant committed, the statute defines a single crime rather than multiple alternative elements. Consequently, an overbroad and indivisible statute cannot serve as a predicate offense for career offender status.
The decision requires the district court to resentence Casildo without the career offender enhancement. This ruling clarifies that Nevada's § 453.321(1)(a) is not a valid predicate for federal career offender enhancements, aligning with the Ninth Circuit's broader trend of finding similar state drug statutes overbroad and indivisible. The case remains open for resentencing, and the legal standard for determining the divisibility of actus reus clauses in Nevada drug statutes is reinforced.
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