Ninth Circuit Axes Career Offender Enhancement Over 'Indivisible' Nevada Statute

LitNews.ai Staff · March 31, 2026 · Ninth Circuit

Panel: Circuit Judge William A. Fletcher, Circuit Judge Ana de Alba, District Judge William Horsley Orrick · Opinion by: Circuit Judge William A. Fletcher

The Ninth Circuit on Tuesday reversed a federal judge's dismissal of Francis Casildo's sentence vacation motion, holding his prior Nevada drug conviction couldn't support career offender status because the state statute is "indivisible" and broader than federal law, ordering resentencing.

Casildo was convicted of two counts of possession with intent to distribute methamphetamine and one count of conspiracy to distribute a controlled substance. At sentencing, the district court classified him as a career offender based on two prior convictions, including a 2006 Nevada conviction for sale of controlled substances under Nevada Revised Statute § 453.321(1)(a). The career offender enhancement resulted in a 235-month prison sentence, substantially longer than the 10-year sentence his co-defendant received.

Circuit Judge William Fletcher wrote that the Nevada statute's "actus reus clause—which lists a series of prohibited acts—is indivisible," relying on the court's 2018 decision in Villavicencio v. Sessions. Fletcher noted that "the listed alternatives carry no different punishments" and under Nevada law "a jury may convict without being unanimous as to the underlying means of committing the offense." The court found that since § 453.321(1)(a) covers some controlled substances not listed in federal law, it's overbroad and can't serve as a predicate offense.

Casildo had filed a pro se motion under 28 U.S.C. § 2255 challenging his career offender status, which he hadn't raised on direct appeal. The district court initially dismissed the motion as procedurally barred and alternatively ruled on the merits that the Nevada conviction qualified. The Ninth Circuit found cause and prejudice to excuse the procedural default, noting Casildo's appellate counsel provided ineffective assistance by failing to challenge the career offender enhancement despite Casildo's "repeated urging."

The ruling could affect other defendants sentenced as career offenders based on Nevada drug convictions. At Casildo's original sentencing, the district judge noted that "were it not for those two prior convictions or if there had only been one prior drug conviction, we would be talking about a very, very different case, a very, very different sentence." The case now returns to the district court for resentencing without the career offender enhancement.

Counsel

Casildo is represented by Greg S. Silvey of Silvey Law Office Ltd.

The government is represented by Darci W. Crane and Jack Haycock, Assistant United States Attorneys, and Justin D. Whatcott, Acting United States Attorney, of the Office of the United States Attorney.

Case: The case is United States v. Francis R. Casildo, case number 23-35483, in the U.S. Court of Appeals for the Ninth Circuit.

Court

Ninth Circuit

Case Name

United States v. Francis Casildo

Docket

23-35483