author: McKEOWN, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Antonio RODRIGUEZ-SORIANO, Defendant-Appellant.
    No. 15-30039
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 7, 2016, Seattle, Washington
    Filed May 2, 2017

      Michael Donahoe (argued), Senior Litigator; Joslyn Hunt, Research Attorney; Anthony R. Gallagher, Federal Defender; Office of the Federal Public Defender, Helena, Montana, for Defendant-Appellant.
    Joseph E. Thaggard (argued), Assistant United States Attorney; Michael W. Cotter, United States Attorney; United States Attorney’s Office, Missoula, Montana; for Plaintiff-Appellee.
    Before: M. MARGARET McKEOWN, RICHARD C. TALLMAN, and MORGAN B. CHRISTEN, Circuit Judges.
   OPINION

McKEOWN, Circuit Judge:

Congress has provided a limited mechanism for defendants to shave time off their sentences when the Sentencing Commission amends the Sentencing Guidelines with retroactive effect. In recent years, the Commission amended the Guidelines to reduce the potential time served by defendants convicted of certain drug crimes. After one of these amendments came into effect, Antonio Rodriguez-Soriano asked the district court to shorten his sentence, but the court declined to do so. We affirm because the district court properly determined that Rodriguez-Soriano’s original sentence was not actually “based on” a subsequently lowered guideline range, so he is ineligible for a sentence reduction.

Background

In 2005, Rodriguez-Soriano pled guilty to possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). Because of the amount of drugs involved, his base offense level was 32 and his total offense level was 29. See U.S.S.G. § 2D1.1(c). Although the guideline range was 97-121 months due to his criminal history, his guideline sentence was a mandatory term of life imprisonment because of two prior convictions for felony drug offenses. See 21 U.S.C. § 841(b)(1)(A); U.S.S.G. § 5G1.1(b).

Before sentencing, the government filed a motion pursuant to 18 U.S.C. § 3553(e) and § 5K1.1 of the Guidelines. This motion permitted the district court to sentence Rodriguez-Soriano below the mandatory life term. 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The district court granted the motion and imposed a sentence of 300 months.

In November 2014, Amendment 782 to the Guidelines became effective, lowering by two levels the base offense level calculated under § 2Dl.l(c) for certain drug types and quantities, In Rodriguez-Sori-ano’s case, his offense level dropped from 32 to 30. On that basis, he moved for a sentence reduction under 18 U.S.C. § 3582(c)(2). The district court denied the motion, determining that Rodriguez-Sori-ano was ineligible for a reduction because his sentence was not “based on” his guideline range of 97-121 months. Rather, in the district court’s view, the record showed that his sentence was “based on” the interplay between the mandatory life term and the government’s motion.

Analysis

Under federal sentencing law, a district court generally “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c). This baseline rule is subject to an important exception: a district court may reduce a sentence based on a guideline range that is later lowered by the Sentencing Commission. Id. § 3582(c)(2).

In deciding whether to reduce a sentence under § 3582(c)(2), a district court first determines a defendant’s eligibility for a reduction. Dillon v. United States, 560 U.S. 817, 827, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010). If a defendant is eligible, the court must then consider the factors in 18 U.S.C. § 3553(a) and assess whether the requested reduction is warranted. Dillon, 560 U.S. at 827, 130 S.Ct. 2683.

This appeal involves only the first step — the question of eligibility. Under this step, a defendant must show (1) that his sentence was “based on” a guideline range that has since been lowered, and (2) that the reduction he seeks is “consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). These two statutory requirements are distinct, and the defendant must satisfy both to be eligible for a reduction.

In re Sealed Case, 722 F.3d 361, 364-68 (D.C. Cir. 2013).

I. The Meaning of “Based On” Under § 3582(c)(2)

The meaning of the statutory phrase “based on” was the subject of a divided court in Freeman v. United States, 564 U.S. 522, 525-26, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), in which the Supreme Court considered whether a sentence is “based on” a guideline range when a defendant is sentenced following a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C). Parsing the conflicting Freeman opinions is essential to understanding our circuit’s interpretation of the phrase “based on.”

A four-justice plurality in Freeman reasoned that a sentence imposed following a Rule 11(c)(1)(C) plea agreement may be “based on” a guideline range. In the plurality’s view, a district court may reduce a sentence “to whatever extent” the subsequently lowered guideline range “was a relevant part of the analytic framework the judge used to determine the sentence.” Freeman, 564 U.S. at 530, 131 S.Ct. 2685. To explain this view, the plurality began by noting that district courts “must exercise discretion to impose an appropriate sentence” in every case and that “[tjhis discretion, in turn, is framed by the Guidelines.” Id. at 525, 131 S.Ct. 2685. The plurality then concluded that § 3582(c)(2) permits sentence reductions “[w]here the decision to impose a sentence is based on a range later subject to retroactive amend-merit,” so district courts may “correct sentences that depend on frameworks that later prove unjustified.” Id. at 526, 131 S.Ct. 2685.

Put differently, the plurality reasoned that § 3582(c)(2) relief is available to defendants imprisoned “pursuant to sentences that would not have been imposed but for a since-rejected, excessive range.” Id. (emphasis added). The plurality’s analysis therefore requires a connection between the sentence imposed and the subsequently lowered guideline range — a connection beyond the district court’s mere calculation of the guideline range or the fact that its discretion is always “framed by the Guidelines” to some extent. See id. at 525, 131 S.Ct. 2685. Accordingly, § 3582(c)(2) “calls for an inquiry into the reasons for a judge’s sentence.” Id. at 533, 131 S.Ct. 2685 (emphasis added).

The plurality then applied its approach by reviewing the transcript from the sentencing hearing in that case. This review showed that the defendant’s sentence was in fact “based on” the relevant guideline range because the district court not only calculated the range but also noted that the sentence imposed fell within the range and expressed independent judgment that the sentence was appropriate in light of that range. Id. at 530-31, 131 S.Ct. 2685. As a consequence, the defendant was eligible for a reduction because his sentence was “based on” a subsequently lowered guideline range. Id. at 531, 131 S.Ct. 2685.

Justice Sotomayor concurred in the judgment but took a different approach. She maintained that a sentence imposed following a Rule 11(c)(1)(C) plea agreement is “based on” the agreement itself— rather than on the court’s guideline calculation — but she claimed a defendant could still be eligible for a reduction if the agreement expressly incorporated the relevant guideline range. Id. at 535-36, 538-39, 131 S.Ct. 2685 (Sotomayor, J., concurring in the judgment). By contrast, the four-justice dissent asserted that a defendant sentenced following a Rule 11(c)(1)(C) plea agreement can never be eligible for a sentence reduction because the sentence will always be “based on” the plea agreement itself. Id. at 544, 131 S.Ct. 2685 (Roberts, C.J., dissenting).

Although our circuit initially followed Justice Sotomayor’s reasoning, United States v. Austin, 676 F.3d 924, 926 (9th Cir. 2012), we changed course in United States v. Davis, 825 F.3d 1014, 1016-17 (9th Cir. 2016) (en banc). Because there was no rationale common to a majority of the justices in Freeman, we were bound only by the result and so adopted the plurality’s more persuasive analysis. Davis, 825 F.3d at 1016-17.

Key to our determination was the view that Justice Sotomayor’s concurrence is not a “logical subset”' of the plurality’s reasoning. Id. at 1022 (applying Marks v. United States, 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)). Although the plurality’s approach superficially seems to apply more broadly, we concluded that it is narrower in certain respects. Id. at 1023. To illustrate the point, we cited two examples where Justice Sotomayor’s rationale would allow a sentence reduction but the plurality’s would not. Id. These examples demonstrated that the plurality focused on what the district court actually used as a basis for the sentence. If the guideline range “played no role” in the district court’s determination of the appropriate sentence, the sentence would not be “based on” that range. See id. (citation omitted). In other words, if the district court decides to impose a particular sentence “for reasons unrelated to the guideline range,” the defendant is ineligible for a reduction because his sentence was not “based on” that range. See id. (citation omitted).

Having adopted the plurality’s approach, we looked to the transcript from the sentencing hearing to determine whether Davis’s sentence was “based on” the relevant guideline range. Id. at 1027. The record showed that the district court initially calculated the range and, after reflecting on the evidence presented, determined that the sentence (which fell within the range) was “fair and reasonable.” Id. We also noted that the plea agreement itself mentioned the guideline range and several factors that could affect that range. Id. We therefore concluded that Davis was eligible for a sentence reduction because his sentence was based on the guideline range. Id. at 1028.

II. Rodriguez-Soriano’s Eligibility Under § 3582(c)(2)

With this background in mind, we turn to Rodriguez-Soriano’s appeal. He argues that his sentence was “based on” the guideline range subsequently lowered by Amendment 782. The government agrees and urges us to reverse the district court. The parties believe Rodriguez-Soriano is eligible for a reduction due to a different amendment to the Sentencing Guidelines, Amendment 780, which endorses reductions for some defendants who provided substantial assistance.

This is, admittedly, an unusual situation with both the government and the defendant urging us to remand. At the time they filed their briefs, the parties did not have the benefit of our en banc decision in Davis. There is, however, a crucial flaw in their argument — the parties disregard the requirement that the district court consider what “role,” if any, the relevant guideline range played in determining Rodriguez-Soriano’s original sentence. Davis, 825 F.3d at 1023 (citation omitted); see also Freeman, 564 U.S. at 526, 131 S.Ct. 2685 (explaining that § 3852(c)(2) provides relief if a sentence “would not have been imposed but for a since-rejected, excessive range”). This oversight ignores § 3582(c)(2)’s limited scope: under this subsection, a district court may reduce a sentence only “to whatever extent” the range “was a relevant part of the analytic framework the judge used to determine the sentence.” Freeman, 564 U.S. at 530, 131 S.Ct. 2685. Thus, to determine Rodriguez-Soriano’s eligibility for a reduction, we must review the record to see if his sentence was in fact “based on” the guideline range lowered by Amendment 782. See id. at 533, 131 S.Ct. 2685 (“[§ 3582(c)(2)], calls for an inquiry into the reasons for a judge’s sentence.... ”).

The district court began the sentencing hearing with an obligatory calculation of Rodriguez-Soriano’s guideline range but never mentioned that range again after concluding it was trumped by the mandatory life term. See Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The court then granted the government’s motion, deviated below the mandatory life term, and imposed a sentence of 300 months.

Reviewing the hearing transcript reveals how and why the district court settled on a 300-month sentence. The government recommended 240 months, which it engineered by making a hypothetical six-level downward departure from the offense level for a mandatory life term. The court then calculated the hypothetical guideline range implicit in the government’s recommendation as being 235-293 months. Finally, the court settled on a 300-month sentence, which, though higher than the government’s recommendation, “reflect[ed] a downward departure from the life sentence pursuant to” the government’s motion.

The record makes clear that Rodriguez-Soriano’s initial guideline range “played no role” in the district court’s determination of the appropriate sentence, so his sentence was not “based on” that range. See Davis, 825 F.8d at 1023 (citation omitted); see also id. (explaining that a sentence is not “based on” a guideline range if the court “selects its sentence without regard to [that range]” (citation omitted)). Although the court began by calculating the range, that initial calculation alone did not satisfy § 3582(c)(2)’s “based on” requirement, nor did it suffice that the court’s discretion was “framed by the Guidelines” in some abstract way. See id. at 1023 & n.9, 1026. As the district court noted, “[t]he record clearly indicates that the sentencing judge’s decision about the extent of the substantial-assistance departure was not based on or affected by the guideline range that would have applied in the absence of the statutory mandatory minimum.” In other words, the court imposed the sentence “for reasons unrelated to the guideline range” lowered by Amendment 782, so the sentence was not based on that range in any relevant way. See id. at 1023 (quoting United States v. Epps, 707 F.3d 337, 350 n.8 (D.C. Cir. 2013)); see also Freeman, 564 U.S. at 530, 131 S.Ct. 2685 (“§ 3582(c)(2) modification proceedings should be available to permit the district court to revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence .... ”).

The parties essentially argue that the “based on” requirement is no requirement at all. They would read this phrase out of the statute since an initial guideline calculation is always required. Gall, 552 U.S. at 49, 128 S.Ct. 586. They assume that, under the Freeman plurality’s logic, the fact that the district court initially calculated Rodriguez-Soriano’s guideline range means that his original sentence was necessarily “based on” that range. But we have rejected this “oversimplified” view and our panel is bound by the decision in Davis, 825 F.3d at 1023 n.9.

Under § 3582(c)(2), defendants do not “always” qualify for a sentence reduction simply because they are sentenced. Id. Rather, defendants are eligible only “when” the sentence was in fact “based on” the subsequently lowered guideline range. See id. at 1017 (quoting Freeman, 564 U.S. at 534, 131 S.Ct. 2685). This rule flows from the statute’s plain language and adheres to the overall scheme of federal sentencing, in which § 3582(c)(2) has a “narrow scope” and “applies only to a limited class of prisoners—namely, those whose sentence was based on a sentencing range subsequently lowered by the Commission.” Dillon, 560 U.S. at 825-26, 130 S.Ct. 2683; accord id. at 826, 130 S.Ct. 2683 (“Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding [through § 3582(c)(2) ].”).

The parties’ invocation of Amendment 780 misses the point. To be sure, this amendment helps defendants who provide substantial assistance by removing an obstacle arguably posed by a policy statement in § 1B1.10 that prohibits reductions when an “amendment does not have the effect of lowering the defendant’s applicable guideline range because of the operation of another guideline or statutory provision {e.g., a statutory mandatory minimum term of imprisonment).” U.S.S.G. § 1B1.10, Application Note 1(A)(ii). Some courts had interpreted this statement to mean that defendants subject to mandatory mínimums were necessarily ineligible for reductions under retroactive amendments similar to Amendment 782. See, e.g., United States v. Johnson, 732 F.3d 109, 111 (2d Cir. 2013). But Amendment 780 clarified that, for defendants who were subject to a mandatory minimum but who were sentenced below that minimum following a substantial-assistance motion, “applicable guideline range” means the range stemming from the court’s initial guideline calculation before the mandatory minimum kicked in. See U.S.S.G. Supplement to Appendix C, Amendment 780. The amendment was then incorporated into the Guidelines at § 1B1.10(c), which now provides that a defendant’s amended guideline range “shall be determined without regard to the operation” of any mandatory minimum if a substantial-assistance motion allowed the court to deviate below the minimum.

Rodriguez-Soriano’s guideline range of 97-121 months would be different following Amendments 780 and 782. Amendment 782 would lower his base offense level from 32 to 30, thereby decreasing his total offense level from 29 to 27. Given his criminal history, his amended guideline range would drop to 78-97 months. In light of Amendment 780 and § 1B1.10(c), then, Rodriguez-Soriano’s “applicable guideline range” would be lowered due to Amendment 782. Crucially, though, this inquiry goes only to the second requirement under § 3582(c)(2)—whether the sentence reduction Rodriguez-Soriano requests is “consistent with applicable policy statements.” It does not resolve whether, as a threshold matter, his original sentence was “based on” the guideline range the district court initially calculated. For that determination, we look to Davis. Because the initial guideline range was not relevant in determining Rodriguez-Soriano’s sentence, he is ineligible for a reduction under § 3582(c)(2). Had the circumstances of sentencing been different, Rodriguez-Soriano may have benefited from Amendment 782. But in the end, as the district court made clear, his sentence was not “based on” the guideline range.

AFFIRMED.

      . The Fourth Circuit takes a contrary view. In United States v. Williams, 808 F.3d 253, 260, 262-63 (4th Cir. 2015), that court ignored the "based on” language in § 3582(c)(2) and held that the relevant policy statement alone "dictates eligibility for § 3582(c)(2) relief.” The dissent in Williams disagreed. Id. at 264 (Traxler, C.J., dissenting) (maintaining that the defendant was "not eligible for a sentence reduction” because his "sentence was not 'based on a sentencing range that has subsequently been lowered by the Sentencing Commission’ ” (quoting 18 U.S.C. § 3582(c)(2))). Given our own interpretation of § 3582(c)(2), we cannot embrace the Fourth Circuit’s treatment of the statutory language. See United States v. Davis, 825 F.3d 1014, 1022-23 (9th Cir. 2016) (en banc).

      . Other circuits have accepted this interpretation of the plurality's approach as part of their consideration of the competing opinions in Freeman. The Fourth Circuit, for example, adopted Justice Sotomayor’s concurrence as the "narrowest opinion" after concluding that the plurality's rule meant district courts "can always grant § 3582(c)(2) relief to a defendant who enters into a Rule 11(c)(1)(C) plea agreement." United States v. Brown, 653 F.3d 337, 339, 340 & n.1 (4th Cir. 2011) (emphasis added); see also In re Sealed Case, 722 F.3d at 365 (noting that the plurality’s rule means that "a sentence that emerges from a Rule 11(c)(1)(C) plea agreement is always eligible for a subsequent reduction”); United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir. 2011) (concluding that the plurality’s rule is broader because "the district judge in every case [must] consult the guidelines,” so sentences entered pursuant to Rule 11(c)(1)(C) plea agreements are always "based on the guidelines"). We noted these conflicting opinions in Davis but ”d[id] not find [them] convincing.” 825 F.3d at 1024.

      . Amendment 780 provides:
      Cases Involving Mandatory Minimum Sentences and Substantial Assistance. — If the case involves a statutorily required minimum sentence and the court had the authority to impose a sentence below the statutorily required minimum sentence pursuant to a government motion to reflect the defendant’s substantial assistance to authorities, then for purposes of this policy statement the amended guideline range shall be determined without regard to the operation of § 5G1.1 (Sentencing on a Single Count of Conviction)....
      U.S.S.G. Supplement to Appendix C, Amendment 780.


source: Caselaw Access Project

author: PARKER, Circuit Judge:

license: Public Domain

text:
    Jerald FRIEDMAN, Individually and on Behalf of All Others Similarly Situated, Plaintiff-Appellant, v. AARP, INC.; AARP Services, Inc.; AARP Insurance Plan; UnitedHealth Group, Inc.; UnitedHealth Care Insurance Company, Defendants-Appellees.
    No. 14-56765
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 19, 2016, Pasadena, California
    Filed May 3, 2017

      Andrew S. Love (argued) and Susan K. Alexander, Robbins Geller Rudman & Dowd LLP, San Francisco, California; Kevin K. Green, Frank J. Janecek, Jr., and Christopher Collins, Robbins Geller Rud-man & Dowd LLP, San Diego, California; Stuart A. Davidson, Mark J. Dearman, and Christopher C. Martins, Robbins Geller Rudman & Dowd LLP, Boca Raton, Florida; Sean K. Collins, Boston, Massachusetts; Michael F. Ghozland, Ghozland Law Firm, Los Angeles, California; for Plaintiff-Appellant.

      Brian D. Boyle (argued) and Meaghan VerGow, O’Melveny & Myers LLP, Washington, D.C.; Christopher B. Craig, Los Angeles, California; for Defendants-Appel-lees UnitedHealth Group, Inc. and United Healthcare Insurance Company.
    Douglas E. Winter, Bryan Cave LLP, Washington, D.C.; Jeffrey S. Russell and Darci F. Madden, Bryan Cave LLP, St. Louis, Missouri; for Defendants-Appellees AARP, Inc., AARP Services, Inc., and AARP Insurance Plan.
    Before: RICHARD C. TALLMAN, BARRINGTON D. PARKER, JR. and MORGAN CHRISTEN, Circuit Judges.

       Senior United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.

   OPINION

PARKER, Circuit Judge:

Plaintiff Jerald Friedman, a Medicare beneficiary, purchased private supplemental health insurance through a group Me-digap policy held by Defendant AARP Insurance Plan (“AARP”), and underwritten and sold by Defendant UnitedHealth Care Insurance Company (“UnitedHealth”). Medigap policies offer supplemental private health insurance to cover costs not covered by Medicare. Friedman filed this putative class action alleging, in essence, that AARP, through its arrangement with Medigap, transacts insurance without a license in violation of the California Insurance Code. Friedman sought relief pursuant to California’s Unfair Competition Law and the common law. The district court granted Defendants’ motion under Rule 12(b)(6) and dismissed the complaint with prejudice. We reverse.

I

AARP, a not-for-profit corporation formerly known as the American Association of Retired Persons, is a dominant figure in the market for Medigap health insurance. See Vencor Inc. v. Nat’l States Ins. Co., 303 F.3d 1024, 1026 (9th Cir. 2002) (describing Medigap health insurance). Approximately one-third of all Medigap policyholders nationwide are enrolled in AARP’s program, more than three times AARP’s closest competitor. AARP does not itself provide insurance coverage, nor is it licensed to do so. Rather, it is the group policyholder for Medigap coverage underwritten and sold by UnitedHealth, the country’s largest health insurer. In 2011, Friedman purchased UnitedHealth Medigap coverage through AARP’s group policy.

AARP and UnitedHealth’s Medigap arrangement is governed by a 1997 joint venture agreement (the “AARP-United Agreement” or the “Agreement”). The Agreement requires that individuals wishing to purchase Medigap coverage from UnitedHealth do so through AARP’s group policy. The Agreement also requires that AARP administer key aspects of the program, which involves two principal tasks.

First, AARP solicits its members’ enrollment in the Medigap program. An agreement between AARP and its subsidiary trust, Defendant AARP Insurance Plan (the “AARP Trust”) contractually obligates AARP to “solicit member participation in the [Medigap] Plan by direct mail and otherwise.” ER 299. AARP discharges this duty through television commercials, its website, and other forms of advertisements. For example, a website owned by Defendant AARP Services, Inc., a for-profit, wholly-owned subsidiary of AARP, explained why AARP members should- “get an AARP Medicare Supplement Plan.” ER 276. It emphasized that: (i) AARP Medicare Supplement Plans are the “only Medicare Supplement plans endorsed by AARP”; (ii) the plans are “[i]n-sured by UnitedHealthcare Insurance Company, the insurer serving the most Medicare supplement enrollees nation wide”; and (iii) there is a “94% Customer Satisfaction Rate of those surveyed.” ER 276. Many of the marketing materials owned and controlled by AARP state in bold font: “This is a solicitation of insurance.” See, e.cg., ER 270, 272, 276, 278.

Second, AARP collects insurance premiums from members through the AARP Trust and remits the appropriate payment to UnitedHealth. The AARP-United Agreement also allows AARP to invest the collected payments prior to remittance to UnitedHealth. Significantly, AARP deducts and retains 4.95% of each dollar paid by UnitedHealth Medigap enrollees prior to remitting the premiums to United-Health. Whether this deduction was plausibly alleged to be an insurance commission is a key issue on this appeal.

The initial version of the AARP-United Agreement referred to this retained amount as an “allowance.” ER 99. However, following settlement of a dispute with the Internal Revenue Service, AARP and UnitedHealth amended their agreement to provide that the “allowance” would be referred to as a “royalty.” Compl. ¶ 46, ER 20. Defendants assert that the 4.95% retention is a permissible royalty payment made by UnitedHealth in exchange for its use of AARP’s intellectual property (ie., its logo) in connection with the Medigap program. The complaint, however, characterizes this arrangement quite differently:

[I]n exchange for AARP’s administering of the insurance program and the marketing, soliciting, and selling or renewing AARP Medigap policies on behalf of UnitedHealth, as well as its collecting and remitting insurance premiums on behalf of UnitedHealth, AARP earns a 4.95% commission, disguised as a “royalty,” on each policy sold or renewed.

Compl. ¶ 51, ER 22. In short, Friedman alleges that the 4.95% retained by AARP is a commission on the sale of insurance that is charged over and above the actual monthly premium that UnitedHealth charges for Medigap coverage which AARP is not entitled to collect because it is not licensed to transact insurance in California. See Cal. Ins. Code § 1631 (providing that persons subject to the California Insurance Code “shall not solicit, negotiate, or effect contracts of insurance” without a license).

Friedman is not the first to question AARP’s retention of its fee pursuant to the AARP-United Agreement. At some point, according to allegations in the complaint, regulators began to question AARP’s tax-exempt status in light of the substantial income AARP was earning through this arrangement. In 2011, the House Committee on Ways and Means reviewed the circumstances surrounding AARP’s retention of the 4.95% fee. Although Defendants argue here that this fee is taken out of the insureds’ premium payments, Br. of Appel-lee 7, 32, AARP’s CEO testified to the Committee that the “royalties have nothing to do with the premiums of beneficiaries,” and that “[n]one of the money is taken out of any of the premiums,” Compl. ¶ 63, ER 28-29 (internal quotation marks omitted). Friedman alleges that AARP has concealed the fact that the 4.95% supposed “royalty” was an insurance commission collected in addition to the actual premium charged by UnitedHealth, and was an amount he otherwise would not have paid.

Friedman filed a putative class action alleging violations of California’s Unfair Competition Law, Cal. Bus. & Prof. Code §§ 17200-17210; money had and received; and conversion. The gravamen of his complaint is that by soliciting insurance and accepting an insurance commission, AARP unlawfully transacts insurance without a license in violation of the California Insurance Code. This conduct, according to Friedman, constitutes an unfair business practice under California law that has caused harm to him and the purported class.

Defendants moved to dismiss pursuant to Rule 12(b)(6). The district court granted the motion and dismissed the complaint with prejudice. The court concluded that “Plaintiff has not plausibly alleged that AARP acted improperly as an ‘unlicensed insurance agent’ who was paid a ‘commission’ for the ‘sale’ of insurance.” ER 5-6. Rather, it concluded that AARP’s actions “are entirely consistent with [a] permissible arrangement.” ER 6. The court rejected Friedman’s allegation that the 4.95% fee was an improper commission, concluding that, the “payment, labeled a ‘royalty’ by the agreements between AARP and UnitedHealth, is not a ‘commission’ under the facts alleged.” ER 8. The court also rejected Friedman’s allegation that AARP “solicited” insurance, reasoning that none of the marketing materials identified by Plaintiff “permits an individual to purchase insurance coverage or submit an application for insurance.” ER 6. This appeal followed.

II

“We review a district court’s ruling on a motion to dismiss de novo.” Fed. Trade Comm’n v. AT&T Mobility LLC, 885 F.3d 993, 997 (9th Cir. 2016). To survive dismissal, a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Our review is confined to the complaint’s “face” because, “[a]s a general rule, we may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” United States v. Corinthian Colls., 655 F.3d 984, 998 (9th Cir. 2011) (internal quotation marks omitted). However, “[c]ertain written instruments attached to pleadings may be considered part of the pleading,” and “[e]ven if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiffs claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A court must accept “all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmov-ing party.” Rowe v. Educ. Credit Mgmt. Corp., 559 F.3d 1028, 1029-30 (9th Cir. 2009) (internal quotation marks omitted). Finally, “[a]s a federal court sitting in diversity, we must apply the substantive law of California, as interpreted by the California Supreme Court.” Hinojos v. Kohl’s Corp., 718 F.3d 1098, 1103 (9th Cir. 2013) (internal quotation marks omitted).

Ill

Friedman’s principal contention is that AARP’s Medigap arrangement violates California’s Unfair Competition Law (“UCL”). See Cal. Bus. & Prof. Code §§ 17200-17210. The UCL broadly prohibits “unfair competition,” defined as “any unlawful, unfair or fraudulent business act or practice.” Cal. Bus. & Prof. Code § 17200. Because the statute is written in the disjunctive, it is violated if a defendant violates any of the unlawful, unfair or fraudulent prongs. Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1168 (9th Cir. 2012). The California Supreme Court has emphasized that the “UCL’s ‘scope is broad,’ and its coverage is ‘sweeping.’ ” People ex rel. Harris v. Pac Anchor Transp., Inc., 59 Cal.4th 772, 174 Cal. Rptr.3d 626, 329 P.3d 180, 188 (2014) (quoting Cel-Tech Commc’ns, Inc. v. L.A. Cellular Tel. Co., 20 Cal.4th 163, 83 Cal. Rptr.2d 548, 973 P.2d 527, 560 (1999)).

A

With respect to the unlawful prong of section 17200, it is clear that “[v]irtually any state, federal, or local law can serve as the predicate.” See People ex rel. Lockyer v. Fremont Life Ins. Co., 104 Cal.App.4th 508, 128 Cal.Rptr.2d 463, 469 (2002) (internal quotation marks omitted). Friedman’s allegations focus primarily on purported violations by AARP of the California Insurance Code, a UCL predicate, see Stevens v. Superior Court, 75 Cal.App.4th 594, 89 Cal.Rptr.2d 370, 379 (1999). Friedman relies most specifically on section 1631, which states that:

Unless exempt by the provisions of this article, a person shall not solicit, negotiate, or effect contracts of insurance, or act in any of the capacities defined in Article 1 (commencing with Section 1621) unless the person holds a valid license from the commissioner authorizing the person to act in that capacity.

Cal. Ins Code. § 1631. Section 1622, referenced in section 1631, defines a “life licensee” as “a person authorized to act on behalf of a life insurer or a disability insurer to transact” insurance. Cal. Ins Code. § 1622. Further, section 1633 provides that “[ajny person who transacts insurance without a valid license so to act is guilty of a misdemeanor.” Cal. Ins Code. § 1633; see also Stevens, 89 Cal. Rptr.2d at 377 n.9 (“[T]ransacting insurance without a license [is not] a ‘mere technical violation’ as defendants contend; it is unlawful. (§ 1633.)”). The Insurance Code defines the term “transact” to include “solicitation,” “negotiations preliminary to execution,” “execution of a contract of insurance,” or “transaction of matters subsequent to execution of the contract and arising out of it.” Cal. Ins. Code § 35.

Friedman alleges — and Defendants do not dispute — that AARP is not licensed in California to “solicit, negotiate, or effect contracts of insurance,” nor is it licensed to “transact” insurance. At issue therefore is whether Friedman has adequately pled that AARP has engaged in any of those listed activities. We conclude that he has. In short, Friedman has adequately pled that AARP both “transacts” and “solicits” insurance without a license in violation of the California Insurance Code.

First, the complaint alleges that AARP “transacts” insurance by charging a “commission” to its members who sign up for UnitedHealth Medigap coverage. Although the Insurance Code does not define “commission,” California’s Labor Code defines “commission wages” as “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount of value thereof.” Cal. Lab. Code § 204.1 (addressing commission wages in context of employees at car dealerships); see also Wayne v. Staples, Inc., 135 Cal.App.4th 466, 37 Cal.Rptr.3d 544, 554 (2006) (relying on Labor Code’s definition of “commission wages” in assessing whether a fee retained in connection with the sale of an insurance product constitutes a commission for purposes of the Insurance Code). If, as Friedman alleges, the 4.95% fee is an insurance “commission” and not a royalty, its retention by AARP could plausibly violate California law.

Defendants argue that the fee AARP receives does not meet that definition of “commission” because UnitedHealth’s payment to AARP “is calculated as a percentage of all premiums paid in connection with the program, regardless of their source.” Br. of Appellees 6, 28. While seemingly true, given Friedman’s allegations, we are not persuaded that the method of calculation, in and of itself, places the arrangements between AARP and United-Health outside the definition of “commission.” Significantly, Friedman alleged that “[a]ny consumer who wants to purchase Medigap coverage from UnitedHealth must purchase the AARP Medigap plan.” Compl. ¶ 37, ER 18. Therefore, every en-rollee in UnitedHealth’s Medigap program signed up for the program through AARP and remits their monthly payments to AARP (specifically, the AARP Trust). Accordingly, we see no “source” other than through AARP for the premiums paid to UnitedHealth for Medigap coverage. At this early stage of litigation, it appears that, in practice, the fee received by AARP es directly tied to the portion of policies “sold” by AARP, and is, in effect, a “percent of the price of the product,” Wayne, 37 Cal.Rptr.3d at 553. Regardless of the nominal form of the arrangement called for by the AARP-United Agreement, the complaint alleges that AARP receives a 4.95% fee for every member that enrolls in UnitedHealth’s Medigap program. At the motion to dismiss stage, we conclude that Friedman has plausibly alleged this payment to be a “commission.”

The complaint contains other allegations lending further support to the contention that AARP’s fee is an insurance commission rather than a royalty. As previously noted, AARP’s CEO testified to Congress that “royalties have nothing to do with the premiums of beneficiaries,” and that “[n]one of the money is taken out of any of the premiums,” Compl. ¶ 63, ER 27-28, and AARP recharacterized the fee as a “royalty” (rather than an “allowance”) following settlement of a dispute with the IRS. Compl. ¶¶ 45-46, ER 20-21. Additionally, according to the complaint, other associations with insurance structures similar to AARP’s, such as the automobile club AAA, acquire a license to act as an insurance agent, Compl. ¶ 9 & n.l, ER 14. In sum, we conclude that Friedman has met the not especially onerous burden imposed at the pleading stage of alleging facts making it plausible that AARP transacts insurance by collecting commissions from its members who purchase UnitedHealth’s Medigap policy.

Second, Friedman also adequately alleged that AARP “solicits” insurance in violation of the Insurance Code. Most significantly, AARP’s marketing materials, which AARP owns and controls, expressly state in bold font: “This is a solicitation of insurance.” Next, the AARP-United Agreement itself envisions that certain AARP member communications may constitute “solicitation materials.” See supra note 6. Additionally, the AARP Trust’s governing document contractually obligates AARP to “solicit” its members’ participation in the UnitedHealth Medigap program. Finally, AARP’s marketing materials contain language that a reasonable observer could plausibly interpret as soliciting his or her business. For example, AARP’s marketing documents explain why members should “get an AARP Medicare Supplement Plan,” and then list supporting reasons. ER 276. AARP’s website also allows consumers to “View Plans and Pricing” and call a toll-free number to speak to an insurance agent and “receive complete information including benefits, costs, eligibility requirements, exclusions and limitations.” ER 276. In light of AARP’s direct financial incentive in securing additional enrollees in UnitedHealth’s Medigap program, we have little difficulty in concluding that these representations support plausible allegations of solicitation.

Despite the foregoing, the district court concluded that the complaint failed to adequately allege that AARP “solicits” insurance. The court’s primary rationale was that “none of those websites permits an individual to purchase insurance coverage or submit an application for insurance.” ER 6. We are not persuaded, however, that the ability (or lack of ability) to direetly purchase or apply for insurance is dis-positive. While the California Insurance Code does not define “solicitation,” various provisions of the Code suggest that the California legislature intended “solicitation” to encompass both requests for “applications for [insurance] contracts,” Cal. Ins. Code § 1611, and marketing if the “purpose of the method of marketing is the solicitation of insurance” by putting consumers in contact with an insurance agency or company, Cal. Ins. Code § 10192.20(b)(3). Because the UCL sweeps broadly, People ex rel. Harris, 174 Cal. Rptr.3d 626, 329 P.3d at 188, we decline to adopt the narrow construction of “solicitation” used by the district court. Even if consumers cannot directly apply for or purchase insurance through AARP, Friedman has plausibly alleged that AARP’s marketing materials are designed to lead its members to contact UnitedHealth to consummate sales of insurance.

Next, the district court found it significant that the AARP marketing materials state that “[n]either AARP nor its affiliates is the insurer” and that “AARP and its affiliates are not insurance agencies or carriers.” ER 6-7 (internal quotation marks omitted). These assertions by AARP are hardly dispositive, especially when they are made in concert with contrary assertions in marketing materials that “This is a solicitation of insurance.” An unlicensed entity violates sections 1631 and 1633 when it, in fact, solicits insurance, irrespective of whether it self-reports as an “agent” or an “insurer.” Section 1631 is expansive, providing that “a[n] [unlicensed] person shall not solicit, negotiate, or effect contracts of insurance, or act in any of the capacities defined in Article 1 [defining ‘insurance agent’].” Cal. Ins. Code § 1631 (emphases added). Moreover, as we have noted, section 1633 prohibits “transacting” insurance without regard to agency status.

In light of AARP’s self-described “solicitation[s] of insurance,” as well as its contractual obligation to “solicit” membership into the UnitedHealth Medigap plan, Plaintiff stated a plausible claim at the motion to dismiss stage that AARP “solicits” insurance without a license, and, as a consequence, committed an unlawful act in violation of the UCL.

B

Having found that Friedman adequately alleged that Defendants violated the UCL’s “unlawful” prong, we also conclude Friedman adequately alleged that Defendants violated the “fraudulent” and “unfair” prongs of the UCL. To state a claim under either prong, a plaintiffs “burden of proof is modest: the representative plaintiff must show that members of the public are likely to be deceived by the practice.” Prata v. Superior Court, 91 Cal. App.4th 1128, 111 Cal.Rptr.2d 296, 308 (2001). We assess likelihood of deception under a “reasonable consumer standard.” Reid v. Johnson & Johnson, 780 F.3d 952, 958 (9th Cir. 2015). We recently held that this inquiry “raises questions of fact that are appropriate for resolution on a motion to dismiss only in ‘rare situation[s].’” Id. (quoting Williams v. Gerber Prods. Co., 552 F.3d 934, 939 (9th Cir. 2008)). Further, to establish a fraud claim under the UCL, a plaintiff must demonstrate actual reliance. In re Tobacco II Cases, 46 Cal.4th 298, 93 Cal.Rptr.3d 559, 207 P.3d 20, 39 (2009). However, “actual reliance [for purposes of a UCL claim] ... is inferred from the misrepresentation of a material fact.” Chapman v. Skype, Inc., 220 Cal.App.4th 217, 162 Cal.Rptr.3d 864, 874 (2013). Finally, the California Supreme Court has emphasized that a “misrepresentation is judged to be ‘material’ if a reasonable man would attach importance to its existence or nonexistence in determining his choice of action in the transaction in question, and as such materiality is generally a question of fact.” In re Tobacco II Cases, 93 Cal. Rptr.3d 559, 207 P.3d at 39 (internal citation and quotation marks omitted).

Friedman has plausibly alleged that members of the public are likely to be deceived into paying AARP’s additional 4.95% fee because AARP collects and labels the fee as a “royalty” rather than what Friedman alleges it actually is — a “commission” collected on top of the premium. At the motion to dismiss stage, these allegations are adequate to establish material misrepresentations supporting Plaintiffs claims.

Defendants contend that Friedman failed to allege deception. We disagree. Friedman alleged that AARP deceives its members into believing that members’ monthly payments are for AARP’s regulator-approved premiums and administrative expenses but actually include the additional commission. As support, Friedman points to an “AARP Medigap disclaimer” that states: “These premiums are used to pay expenses incurred by the Trust in connection with the insurance programs and to pay the insurance company for your insurance coverage.” Compl. ¶ 67; ER 29-30 (internal quotation marks omitted). Accordingly, he contends, AARP misleadingly told its members that their payment only covered AARP’s expenses and the premium for UnitedHealth’s Medigap coverage, but in reality, the payments include an imbedded commission which was not an expense payment. We agree that these allegations plausibly allege deception. Defendants also disregard Friedman’s allegation that it was deceptive for AARP to characterize its fee as a royalty in the first place. Compl. ¶ 8, ER 13 (“[cjalling the commission payment a ‘royalty’ is merely a fiction created by Defendants to further their illegal scheme”).

Next, Defendants argue that the ultimate rate Friedman was charged was precisely in line with rates approved by the California Insurance Code, and therefore they cannot be deceptive. In fact, they argue, the rate was expressly authorized by California regulators and Defendants were prohibited from deviating from that rate. This argument fails because it disregards Friedman’s numerous allegations that the 4.95% fee was, in fact, charged on top of any regulator-approved premium. And, this allegation is supported with reference to language in the AARP-United Agreement. Specifically, the Agreement defines “SHIP GROSS PREMIUMS” for purposes of the AARP Medigap Plan, as “the amount of Member Contributions minus the AARP allowance.” ER 68 (emphasis added); see also ER 99 (describing the “AARP allowance” as “an allowance for AARP’s sponsorship of the SHIP and the license to use the AARP Marks in connection therewith”). That language makes it seem quite plausible that, as Friedman alleged, the premium that AARP charges does not include the AARP allowance. Friedman’s allegation is further supported by testimony to Congress from AARP’s CEO that “royalties have nothing to do with the premiums of the beneficiaries,” and that “[ajll of the money that we have that comes out of the trust in interest goes to our mission. None of the money is taken out of any of the premiums.” Compl. ¶ 63, ER 28-29.

Next, Defendants argue Friedman failed to sufficiently allege actual reliance. However, as discussed, “actual reliance ... is inferred from the misrepresentation of a material fact.” Chapman, 162 Cal.Rptr.3d at 874. Accordingly, to have alleged reliance on Defendants’ misrepresentation of material facts, Friedman only needed establish it to be plausible that a “reasonable man would attach importance to [their] existence or nonexistence in determining his choice of action in the transaction in question.” In re Tobacco II Cases, 93 Cal. Rptr.3d 559, 207 P.3d at 39; see also id. (whether a misrepresentation is sufficiently material to allow for an inference of reliance “is generally a question of fact unless the fact misrepresented is so obviously unimportant that the jury could not reasonably find that a reasonable man would have’been influenced by it”).

Friedman alleges that the misrepresentations he catalogued in his complaint concerning the 4.95% fee were material because they induced him to purchase Medigap through AARP rather than from other insurers who “do not secretly charge unlawful insurance agent commissions to consumers.” Compl. ¶ 77, ER 31. We think that it is not, as a matter of law, an “obviously unimportant” consideration for a reasonable purchaser of insurance to know that an undisclosed fee charged to a group insurance policyholder would be collected in addition to — rather than from — the actual cost of the insurance. See In re Tobacco II Cases, 93 Cal. Rptr.3d 559, 207 P.3d at 39. For these reasons we conclude that Friedman’s complaint should not have been dismissed.

As a final matter we note that one of Defendants’ principal contentions below was that Friedman’s claim is barred by the “filed-rate” doctrine, under which “rates duly adopted by a regulatory agency are not subject to collateral attack in court.” MacKay v. Superior Court, 188 Cal. App.4th 1427, 115 Cal.Rptr.3d 893, 910 (2010). Because the district court concluded that the complaint failed to state a claim it saw no need to reach this issue. ER 4-5 n.2. Moreover, neither party addressed the doctrine in its appellate briefing.

In light of our conclusion that the complaint should not have been dismissed, the “filed-rate” issue reemerges. Our general rule is that we do not consider an issue not passed upon below. Dodd v. Hood River Cty., 59 F.3d 852, 863 (9th .Cir. 1995). We do not think this case calls for deviation from that rule and we conclude that the proper course is to have the district court address the issue in the first instance.

CONCLUSION

We REVERSE and REMAND for further proceedings consistent with this opinion.

      . The facts recounted in this section derive principally from the complaint and its attachment.

      . References to "ER” are to the Excerpts of Record filed with this appeal.

      . See also Multifamily Captive Grp., LLC v. Assurance Risk Managers, Inc., 578 F.Supp.2d 1242, 1247 n.10 (E.D. Cal. 2008).

      . Defendants argue AARP could have not "transacted]” insurance as envisioned in Cal. Ins. Code § 1622 because AARP is not Uni-tedHealth’s "agent” or "ostensible agent,” as respectively defined in sections 2299 and 2300 of the California Civil Code. Br. of Ap-pellees 19-21. However, Cal. Ins. Code § 1622 does not use the term "agency,” ostensible or otherwise. In any event, Cal. Ins. Code § 1633 broadly proscribes all unlicensed transactions of insurance.

      .The acceptance of an insurance commission constitutes "transacting” insurance. The Insurance Code expressly excludes from activities exempt from the licensing requirements those for which a commission is paid. Cal. Ins. Code § 1635; see also id. § 1634(b), (g), (h) (exempting certain persons from licensure provided they are not paid commissions). Clearly, the legislature intended those accepting insurance commissions to be licensed.

      . Section 7.2.1 of the AARP-United Agreement states as follows: "All communications to AARP members pertaining to the [Medigap program], including without limitation scripts, solicitation materials and other written materials mailed on behalf of AARP to any members, shall be the property of AARP[.] ... United acknowledges that it has no proprietary or ownership rights in any of such materials ...” ER 109.

      . Defendants’ response that they are required to include this language pursuant to California law seems to us to in fact be an admission that AARP solicits insurance. See Cal. Ins. Code § 10192.20(b)(3) (requiring the solicitation disclosure if “a purpose of marketing is the solicitation of insurance”).

      . This conclusion was based on documents Defendants attached to their motion to dismiss, ER 267-79.

      .Moreover, even if one could not "solicit” without being an agent or an insurer, the statements on Defendants’ marketing materials would conflict. At this stage of the litigation, the district court was required to credit Plaintiff’s interpretation of those statements. See Rowe, 559 F.3d at 1029-30.

      . The district court also concluded that AARP’s actions were permissible in part because "a group policyholder, such as AARP, is entitled to ’offer[] insurance’ to its members” pursuant to section 10270.5(a)(3) of the Insurance Code. ER 7. However, this ignores Friedman's argument, grounded in the complaint, that “AARP went several steps further than the passive role played by group policyholders under the Insurance Code.” Br. of Appellant 12.


author: KLEINFELD, Senior Circuit Judge:

text:
    Hayley HICKCOX-HUFFMAN, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. US AIRWAYS, INC.; U.S. Airways Group, Inc., Defendants-Appellees.
    No. 11-16305
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 8, 2012
    Submission Withdrawn June 6, 2013
    Resubmitted April 24, 2017 , San Francisco, California
    Filed May 3, 2017

      Justin P. Karczag (argued), Roger N. Behle, and Thomas Foley, Foley Bezek Behle & Curtis LLP, Santa Barbara, California; William M. Aron, Law Office of William M. Aron, Santa Barbara, California; for Plaintiff-Appellant.
    Michael G. McGuinness (argued), Robert A. Siegel, and Jillian R. Weinstein, O’Mel-veny & Myers LLP, Los Angeles, California, for Defendants-Appellees.
    Jeffrey A. Lamken and Michael G. Pat-tillo, Jr., MoloLamken LLP, Washington, D.C.; Andrew M. Bernie, MoloLamken LLP, New York, New York; for Amicus Curiae Air Transport Association of America, Inc.
    Before: ANDREW J. KLEINFELD and MARSHA S. BERZON, Circuit Judges, and ROGER T. BENITEZ, District Judge.

      . After oral argument, we vacated submission pending the Supreme Court’s resolution of Northwest, Inc. v. Ginsberg,- U.S.-, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014). Upon resolution of that case, we ordered supplemental briefing. We subsequently awaited Nat'l Fed’n of the Blind v. United Airlines Inc., 813 F.3d 718 (9th Cir. 2016).

       The Honorable Roger T. Benitez, United States District Judge for the Southern District of California, sitting by designation.

   OPINION

KLEINFELD, Senior Circuit Judge:

We decide whether the Airline Deregulation Act preempts state law claims arising out of delayed baggage.

Facts.

The district court dismissed this case at the pleading stage under Rule 12(b)(6) for failure to state a claim, so we treat the facts as pleaded in the complaint and attached exhibits as true for the purposes of this appeal.

According to the first amended complaint, Hayley Hickcox-Huffman bought a ticket on US Airways to fly from Colorado Springs, Colorado, to San Luis Obispo, California. She checked one bag. Airlines have different policies on charging for baggage, and the same airline may change its policy from time to time. Some charge nothing for checking one bag, some charge fees in varying amounts. US Airways charged Hickcox-Huffman $15 to check her bag. Her bag did not show up on the baggage carousel, and US Airways delivered it to her the next day.

Hickcox-Huffman filed a putative class action to get her $15 back. Her complaint pleads (1) “breach of self-imposed undertaking,” (2) “breach of express contract,” (3) “breach of implied contract,” (4) “breach of contract — federal common law,” (5) “breach of the covenant of good faith and fair dealing,” (6) “unjust enrichment,” (7) “intentional misrepresentation,” and (8) “negligent misrepresentation.” All the claims are for refunds of what she and other passengers paid as baggage fees, on the theory that US Airways did not do what it promised to do in exchange for the money.

To show the terms of the agreement, Hickcox-Huffman attached US Airways’ “Terms of Transportation” to the complaint. The terms say that “Travel on US Airways shall be deemed acceptance by the customer of US Airways’ terms of transportation.” In boldface, they explain that “US AIRWAYS SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES” but makes an exception for baggage: “EXCEPT BAGGAGE LIABILITY, SECTION 11.” The publication also says that “US Airways has .voluntarily established a program setting standards for service levels” regarding baggage, and has “committed to ... [provide on-time baggage delivery” and “[m]ake prompt refunds.”

Section 11 addresses baggage, and subsection 11.6 addresses “baggage claim limits and procedures.” That subsection limits liability for “loss, delay, or damage” to a dollar ceiling, and requires written notice of a claim for any “delay of checked baggage” within 45 days of the incident for domestic travel. And it says that if the checked baggage is not returned to the customer “upon arrival,” then the airlines will make “every effort” to return it within 24 hours.

The district court dismissed the complaint on the grounds that Hickcox-Huff-man’s claims were preempted by the Airline Deregulation Act. The court reasoned that Hickcox-Huffman’s claims related to an airline “service,” a preempted category under the Act, and that the contract language was not specific enough to avoid preemption.

Analysis.

We review the district court’s ruling on preemption de novo.

Airlines used to operate like a public utility, with their rates and terms of service set by the federal government’s Civil Aeronautics Board (“CAB”). State governments also imposed requirements, such as particular routes. Service was lavish, and fares were much higher than they are now (corrected for inflation).

Congress deregulated the industry and abolished the CAB in 1978. The Airline Deregulation Act sought to promote “maximum reliance on competitive market forces ... to provide the needed air transportation system ... [and] to encourage efficient and well-managed air carriers.” The Act said that it was intended “to encourage, develop, and attain an air transportation system which relies on competitive market forces to determine the quality, variety, and price of air services.”

To prevent the states from undermining this new free market approach, Congress prohibited them from enacting or enforcing any law “related to a price, route, or service of an air carrier.” But Congress expressly did not abolish remedies other than those provided in the Airline Deregulation Act. To the contrary, the Act specifies that remedies it provides are “in addition to any other remedies provided by law.” This savings clause language used to say more — that nothing in the chapter shall “abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” While that change might give rise to an inference that the savings clause was narrowed, “[t]hose additional terms were deleted as part of a wholesale recodification of Title 49 in 1994, [and] Congress made it clear that this recodification did not effect any ‘substantive change.’” The tension between the preemption clause and the savings clause has generated a series of decisions addressing where the boundary lies between preempted claims and preserved claims.

The Supreme Court read the preemption clause broadly in Morales v. Trans World Airlines, Inc., reading its words “related to” in the same fairly broad sense as the same phrase in ERISA. An association of state attorneys general had adopted its own enforcement guidelines for policing airline advertisements to protect consumers from deception and nondisclosure. The Court held that injunctive and declaratory relief were available to the airlines against the state attorneys general. Even though the attorneys general did not propose to tell the airlines whom they must serve for how much and in what way, restrictions on advertising of fares and services would “relate to” fares, such as by making it harder for consumers to discover which airline charged the lowest fare.

The Court limited the potential breadth of Morales in American Airlines, Inc. v. Wolens. Passengers claimed breach of contract and violation of an Illinois consumer fraud act because American Airlines had cut back on mileage credits in its frequent flyer program. The Court held that the consumer fraud act claim was preempted, but not the breach of contract claim. Explaining the distinction, the Court said the state consumer fraud act “does not simply give effect to bargains offered by the airlines and accepted by airline customers,” but also “serves as a means to guide and police the marketing practices of the airlines.” Based on that latter function, enforcement of the state law in Wolens was preempted by the Airline Deregulation Act’s of “leav[ing] largely to the airlines themselves, and not at all to States, the selection and design of marketing mechanisms.” But common law breach of contract claims, despite being based on state law, were not preempted, because they are voluntarily assumed obligations, not state impositions:

[TJerms and conditions airlines offer and passengers accept are privately ordered obligations and thus do not amount to a State’s “enactfment] or enforce[ment] [of] any law, rule, regulation, standard, or other provision having the force and effect of law” within the meaning of [the Airline Deregulation Act].... A remedy confined to a contract’s terms simply holds parties to their agreements — in this instance, to business judgments an airline made public about its rates and services. The [Airline Deregulation Act], as we recognized in Morales, was designed to promote “maximum reliance on competitive market forces.” Market efficiency requires effective means to enforce private agreements.

In this way, Wolens reconciled the savings clause (which must save something) with the preemption clause. The States may not impose their own rules regarding fares, routes, or services, but may afford relief for breaches of obligations the airlines voluntarily undertook themselves, even when the obligations directly relate to fares, routes, and services. Justices O’Connor and Thomas would have treated the contract claims as preempted under a broad reading in Morales of “relates to,” and Justice Stevens would have excepted the consumer fraud act claim as well from preemption. The majority retained Morales but expressed the common law view of precedent, that “principles seldom can be settled ‘on the basis of one or two cases, but require a closer working out.’ ”

Wolens controls as to Hickcox-Huff-man’s breach of contract claim. If she adequately pleaded breach of contract, then her claim is not preempted. The Supreme Court’s subsequent Northwest, Inc. v. Ginsberg decision did not change the Wolens rule that state law breach of contract claims are not preempted. The distinction that Ginsberg made was between voluntarily assumed contractual obligations and obligations imposed on contracting parties by state law. The Court characterized the central issue in the case as “whether respondent’s implied covenant claim is based on a state-imposed obligation or simply one that the parties voluntarily undertook.” Some states used the “covenant of good faith and fair dealing” doctrine to effectuate the parties’ intentions and reasonable expectations, but others used it to ensure that a party did not violate community standards regardless of what the parties agreed to. Since the covenant at issue in that case was of the latter sort, imposing a state obligation that could not be avoided by contract, it was preempted. The Court went out of its way to note that “respondent’s claim of ill treatment by Northwest might have been vindicated if he had pursued his breach-of-contract claim after its dismissal by the District Court,” but he had not appealed that dismissal.

Thus, even after Ginsberg, if Hick-cox-Huffman has adequately pleaded breach of a contract provision that US Airways voluntarily entered into, her claim is not preempted. The essential elements of a breach of contract claim are the existence of an enforceable contract, the defendant’s breach, and damages to the plaintiff caused by the breach. Hickcox-Huffman pleaded the terms stated by US Airways in its terms of transportation, supported her averment that she checked one bag, and paid US Airways’ $15 charge with documentary evidence, and additionally alleged that the bag was not delivered to her until the day after her arrival. She requested restitution damages of $15 that she paid for timely delivery of her checked bag. We look to the terms of transportation to see whether it may be read as a contract to deliver the bag when she landed, rather than the next day.

Hickcox-Huffman pleaded breach of contract with three verbal formulas, but all amount to the same thing, that the airline made an enforceable promise to her that it did not keep. Her first formulation, “breach of self-imposed undertaking,” appears to be an allusion to the Wolens language excluding self-imposed undertakings from preemption, the second, “breach of express contract” says basically the same thing, as does the third, “breach of implied contract.”

US Airways terms of transportation are a routine offer of a unilateral contract subject to being accepted by flying on US Airways. The airline has contracted to carry the passenger’s baggage at a rate of $15 for the first bag and $25 for the second. The theory of her claim, as variously stated, is that US Airways promised her timely delivery, that is, delivery of her bag upon arrival, in exchange for $15. US Airways does not dispute that she flew on their airline, paid the $15, and did not get her bag until the day after her arrival. It also does not dispute that its terms of transportation govern.

US Airways uses the word “timely” to mean upon arrival. It expressly commits itself to “on-time baggage delivery.” In its subsection addressing baggage claims for “loss, damage, or delay,, it refers the passenger to its policy on “delayed” baggage. And it commits itself to applying this “delayed baggage” policy if it “fails to return checked baggage upon arrival at the destination.” These terms establish that US Airways treats timeliness of baggage delivery as delivery when the passenger arrives at the destination, and treats delivery after that time as delivery of “delayed” baggage. Thus, under the terms of transportation, she properly pleaded breach of the promise that delivery of her bag would be “timely.”

As for the $15, US Airways’ terms say that the airline “will assess a $15.00 fee for the first checked bag and a $25.00 fee for the second checked bag” as “baggage fees.” Putting these terms together, the $15 Hickcox-Huffman paid was consideration for delivery upon her arrival at her destination of her checked bag.

The terms of transportation say that if the airline “fails to return baggage upon arrival at the destination, every effort will be made to return the baggage within 24 hours.” The “every effort” phrase means that the airline does not promise to return “delayed” baggage within 24 hours, just to make “every effort” to do so. That might have a bearing on a case where the airline took more than 24 hours to return a delayed bag, causing increased consequential damages (e.g., buying one new shirt might cover a 24 hour delay, but two new shirts might be needed for a 48 hour delay). Hickeox-Huffman alleged her bag was returned “the following day,” without stating that the delivery occurred more than 24 hours after her arrival, so the “every effort” language does not bear on her ease.

What matters at this stage of her case is whether she has sufficiently alleged that the airline promised under the terms of transportation to deliver her bag when she landed.

She has. In its terms of transportation, the airline says “US Airways has committed to ... [p]rovide on-time baggage delivery.” Unlike the “best efforts” language for finding and delivering delayed baggage, the commitment has no “every effort” or other language limiting the commitment in some way that might arguably make it a mere promise of best efforts or mere aspirations. US Airways assented to be bound to deliver checked baggage on a passenger’s arrival. It is hard to see what “committed” might mean other than a promise, a contractual obligation.

The terms of transportation use the contract term of art “acceptance,” and say that “[tjravel on US Airways shall be deemed acceptance by the customer of US Airways’ terms of transportation.” If the terms of transportation were merely aspirational, it would make no sense to “deem” travel as “acceptance.” The terms of transportation are worded as an offer of a contract that can be accepted by traveling on the airline. Hickcox-Huffman avers that she paid her fare, paid the $15 baggage fee, and flew on US Airways, so she accepted US Airways’ offer. She now wants her $15 back, as restitution damages, because US Airways did not do what it promised to do and yet has kept her money.

Thus she has pleaded offer, acceptance, consideration, breach, and damages.

Because Hickcox-Huffman’s claim is for breach of contract of a voluntarily assumed contractual undertaking, and she pleads breach of contract, the claim is not preempted by the Airline Deregulation Act as construed by Wolens.

US Airways raises several different arguments for why it is not obligated to refund Hickcox-Huffman’s $15 despite not having delivered her bag on time. The airline says that its contractual cap on consequential damages in the terms of transportation somehow should be read to exclude whatever damages Hickcox-Huff-man may claim. The terms of transportation provide that the airline’s liability for “direct or consequential damages resulting from the loss, delay or damage to baggage” is limited to $8,300 per passenger for domestic travel. The $3,330 limit is of no consequence here, because all Hickcox-Huffman claims is the $15 that she paid. US Airways argues that because the airline does not expressly promise a refund if baggage is delayed, there is no breach of contract and no obligation to refund Hick-cox-Huffman. But a contract may be enforceable even if it does not specify a remedy for a breach. Ordinarily common law provides a range of remedies for breach, except where some remedies are contractually limited or excluded. Refunds are among the remedies traditionally ree-ognized as among those which may be granted “as justice requires.” “The final interest capable of being protected following a breach of contract, the restitution interest, seeks to compensate the plaintiff for the reasonable value of any benefit it conferred on the defendant pursuant to the parties’ contract.” Here, this remedy requires disgorging the benefit to US Airways of the $15 that it received in exchange for its promise of timely delivery. Though restitution may be sought as an equitable remedy where there is no enforceable contract, it is also an available remedy where there is an enforceable contract that has been breached by non-performance.

US Airways alternatively would have us read this limitation regarding consequential damages as implying a negative pregnant so that only consequential damages may be sought. The language of the terms of transportation suggests no negative pregnant, just a limit on a specific type of damages that can become very large. As a limit on consequential damages, it appears to be just that and no more. To the extent that the clause bears on Hick-cox-Huffman’s claim for restitution of the $15 paid, the implication of the limit on consequential damages for “delay” of baggage implies that delayed baggage is subject to a contractual remedy.

The airline also argues that our decision in Sanchez v. Aerovias de Mexico, S.A de C.V., bars recovery. US Airways would read Sanchez to hold that if the airline does not promise a particular remedy, then it is not bound to provide that remedy, even if it has breached the terms of transportation. That is an incorrect reading of Sanchez. Sanchez held that if the airline had made a contractual commitment to collect the disputed portion of the ticket price due only for those passengers subject to a tourism tax, then the contractual commitment would be enforceable under Wolens. But the airline in Sanchez, we held, made no such commitment. It only contracted to fly the passenger for the full ticket price, including what was labeled “tax.” We did not hold in Sanchez that absence of a contract for a particular remedy prevented contract formation.

Finally, US Airways warns, “If Hickcox-Huffman were to prevail on her claims, airlines would be required to deliver checked baggage on-time or to provide that service for free.” We do not see why that argument undermines the contract claim. One airline may offer “first bag free,” another may offer “bag delivery within 20 minutes or we will give you a mileage award,” another may charge $50 for the first bag and expressly exclude any responsibility if the bag does not arrive on the carousel when the passenger lands. And another may offer timely delivery of the first bag for $15, which would mean if the bag is not timely delivered, the passenger has not gotten what she paid for and is entitled to a contract remedy, the smallest of which is probably just getting her $15 back. If promises such as the alternative possible baggage deals hypothesized are not enforced, then the competitive market forces sought by Congress cannot operate, because a passenger with any experience or knowledge will know better than to make choices based on the unenforceable competing offers. Passengers would not respond to competitive and differing offers, if passengers knew that the offerors could break their promises without impunity.

Hickcox-Huffman’s claim falls on the side of the distinction that Ginsberg and Wolens protect from preemption. No state law made US Airways promise timely delivery of the first bag for $15. The airline could have made any of the promises hypothesized above or none of them. Enforcing its voluntarily undertaken contractual obligation comports with the purpose of the Airline Deregulation Act, which “simply holds parties to their agreements — in this instance, to business judgments an airline made public about its rates and services.”

Hickcox-Huffman’s first amended complaint also included a number of alternative claims, but we need not reach any of them because we have determined that she has pleaded an express breach of contract. These alternative claims are all reformulations in the event that her breach of contract claim was deemed preempted. She has alleged a breach of the implied covenant of good faith and fair dealing, but this covenant is merely an aid to interpreting the terms of a contract. She has sufficiently alleged that US Airways breached an express provision of terms of transportation and thus need not rely on this interpretive doctrine For her unjust enrichment and misrepresentation claims, she explains in her first amended complaint that she “will not seek to recover upon” these theories if she succeeds on her breach of contract claim.

Hickcox-Huffman has pleaded breach of contract. Her breach of contract claim is not preempted, and her pleading, if true, establishes a breach of contract. We therefore must reverse and vacate the dismissal of her complaint for failure to state a claim upon which relief can be granted. As for whether some genuine issue of material fact may undermine the truth of her aver-ments, or whether a class should be certified, these questions were not reached in district court, so we leave them for determination on remand.

REVERSED. The judgement below is VACATED, and the case is REMANDED for further proceedings consistent with this opinion. Costs are to be taxed against the appellees.

      . See Bodine v. Graco, Inc., 533 F.3d 1145, 1148 (9th Cir. 2008).

      . The class she seeks to represent is "[a]ll US Airways passengers traveling domestic flights who were charged and paid a baggage fee or fees, and whose bags were delayed or lost, and who upon notifying Defendant of the delay or loss did not receive a refund of their baggage fee(s) from US Airways.”

      . 49 U.S.C. § 1301 et seq.

      . Inland Empire Chapter of Associated Gen. Contractors of Am. v. Dear, 77 F.3d 296, 299 (9th Cir. 1996).

      . It is claimed that in the years after deregulation, passengers saved approximately $19.4 billion per year in lower fares. See Robert W. Poole Jr. & Viggo Butler, Airline Deregulation: The Unfinished Revolution, Regulation, Spring 1999, at 44.

      . 49 U.S.C. § 40101(a)(6).

      . Airline Deregulation Act of 1978, Pub. L. No. 95-504, 92 Stat. 1705 (1978).

      . 49 U.S.C. § 41713(b)(1).

      . Id. § 40120(c).

      . 49 U.S.C. app. § 1506 (1988) (amended at 49 U.S.C. § 4120(c)). The original savings clause was from the Federal Aviation Act, Pub. L. No. 85-726, § 1106, 72 Stat. 798 (1958).

      . Northwest, Inc. v. Ginsberg, - U.S. -, 134 S.Ct. 1422, 1429, 188 L.Ed.2d 538 (2014) (quoting Revision of Title 49 United States Code Annotated "Transportation,” Pub. L. No. 103-272, § 1(a), 108 Stat. 745 (1994)).

      . 504 U.S. 374, 383-84, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). The Court has since Morales clarified its interpretation of the ERISA "related to” language, "recogniz[ing] that the term 'relate to' cannot be taken 'to extend to the furthest stretch of its indeterminacy,’ or else 'for all practical purposes pre-emption would never run its course.’ ” Egelhoff v. Egelhoff, 532 U.S. 141, 146, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (quoting New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995)).

      . Morales, 504 U.S. at 379, 112 S.Ct. 2031.

      . Id. at 389-90, 112 S.Ct. 2031.

      . Id.

      . 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995).

      . Id. at 224-25, 115 S.Ct. 817.

      . Id. at 228-33, 115 S.Ct. 817.

      . Id. at 228, 115 S.Ct. 817.

      . Id.

      . Id. at 228-30, 115 S.Ct. 817 (footnotes and citations omitted).

      . Id. at 232-33, 115 S.Ct. 817.

      . Id. at 238-45, 115 S.Ct. 817 (O’Connor, J„ concurring in the judgment in part and dissenting in part).

      . Id. at 235-37, 115 S.Ct. 817 (Stevens, J„ concurring in part and dissenting in part).

      . Id. at 234-35, 115 S.Ct. 817 (quoting Pound, Survey of the Conference Problems, 14 U. Cin. L. Rev. 324, 339 (1940)).

      . - U.S. -, 134 S.Ct. 1422, 188 L.Ed.2d 538 (2014).

      . Id. at 1430-33.

      . Id. at 1431.

      . Id. at 1431-32.

      . Id.

      . Id. at 1432-33.

      . Filak v. George, 267 Va. 612, 594 S.E.2d 610, 614 (2004); see also Reichert v. Gen. Ins. Co. of Am., 68 Cal.2d 822, 69 Cal.Rptr. 321, 325, 442 P.2d 377 (1968) (in bank) (adding a fourth element, the plaintiff’s performance or excuse for nonperformance under the contract). The terms of transportation say that Virginia law governs but plaintiff argues that California law governs this contract. The relevant aspects of California and Virginia contract law are so substantially similar, that we need not decide which state’s contract law governs.

      .Hickcox-Huffman, on behalf of the putative class, also requested that US Airways be enjoined from retaining baggage service fees when bags are lost or delivered late.

      . (Emphasis added).

      . (Emphasis added).

      . See Restatement (Second) of Contracts § 45(1) (Am. Law Inst. 1981) (“Where an offer invites an offeree to accept by rendering a performance and does not invite a promissory acceptance, an option contract is created when the offeree tenders....”).

      . That Hickcox-Huffman's pleadings allege that US Airways breached "privately ordered obligations” contained within the terms of transportation and, on her contract claims, "seek[] recovery solely for the airline's alleged breach of its own, self-imposed undertakings,” Wolens, 513 U.S. at 228, 115 S.Ct. 817, may well be enough to hold that there was no preemption as to those claims. Any further consideration regarding whether those claims are viable can be seen as directed at determining whether she plausibly alleged that there was a contract and that it was breached. We have no need in this case to clarify the distinction further. Either way, the ultimate question here is whether, on the pleadings, Hickcox-Huffman stated a claim upon which relief can be granted, which we conclude she did.

      . See Restatement (Second) of Contracts § 344 cmt. a (Am. Law Inst. 1981).

      . Williston on Contracts § 64:2 (4th ed. 2010).

      . Restatement (Second) of Contracts § 373(1); see also id. at § 373(1) cmt. a, illus. 1-4; Restatement (Third) of Restitution and Unjust Enrichment pt. II, ch. 4:2 (Intro. Note) (Am. Law Inst. 2011).

      . 590 F.3d 1027 (9th Cir. 2010).

      . Id. at 1030-31.

      . Id. at 1028.

      . After Hickcox-Huffman started this litigation, the Department of Transportation issued a set of regulations governing domestic baggage liability. See 14 C.F.R. §§ 254-59 (2014). We leave to another case whether those regulations would result in a different preemption conclusion regarding contract claims arising out of baggage lost after their issuance. See Nat’l Fed'n of the Blind v. United Airlines Inc., 813 F.3d 718 (9th Cir. 2016).

      . Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 229, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995).

      . See Restatement (Second) of Contracts § 205 (Am. Law Inst. 1981).

      . Under Virginia law, "when parties to a contract create valid and binding rights, an implied covenant of good faith and fair dealing is inapplicable to those rights.” Ward’s Equip., Inc. v. New Holland N. Am., Inc., 254 Va. 379, 493 S.E.2d 516, 520 (1997). The same is true in California. See Steiner v. Thexton, 48 Cal.4th 411, 106 Cal.Rptr.3d 252, 259, 226 P.3d 359 (2010) ("[T]he implied covenant does not trump an agreement’s express language.”).


author: PER CURIAM: KOZINSKI, Circuit Judge,

text:
    Kirk C. FISHER, Plaintiff-Appellant, v. Louis KEALOHA, as an individual and in his official capacity as Honolulu Chief of Police; City and County of Honolulu, Defendants-Appellees.
    No. 14-16514
    United States Court of Appeals, Ninth Circuit.
    Argued and submitted February 21, 2017 Honolulu, Hawaii
    Filed May 5, 2017

      Te-Hina Te-Moana Ickes (argued), Law Offices of Te-Hina Ickes, Honolulu, Hawaii; Donald L. Wilkerson, Law Office of Donald L. Wilkerson ALC, Honolulu, Hawaii; Alan Alexander Beck, Law Offices of Alan Beck, San Diego, California; for Plaintiff-Appellant.
    Curtis E. Sherwood (argued) and Sarah T. Casken, Deputies Corporation Counsel; Donna Y.L. Leong, Corporation Counsel; Department of the Corporation Counsel, Honolulu, Hawaii; for Defendants-Appel-lees.
    Girard D. Lau, Kimberly Tsumoto Gui-dry and Marissa H. Luning, Department of the Attorney General, Honolulu, Hawaii, for Amicus Curiae State of Hawaii.
    Andrew E. Siegel, Covington & Burling LLP, Washington, D.C., for Amicus Curiae Brady Center to Prevent Gun Violence.
    Before: ALEX KOZINSKI, MICHAEL DALY HAWKINS, and CARLOS T. BEA, Circuit Judges.
   Concurrence by Judge KOZINSKI

OPINION

PER CURIAM:

Kirk Fisher appeals the district court’s adverse grant of summary judgment on the issue of whether section 134-7 of the Hawaii Revised Statutes constitutionally prohibits him from owning or possessing firearms because of his 1997 conviction for “harassment” in violation of section 711-1106 of the Hawaii Revised Statutes. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

BACKGROUND

A resident of Hawaii and former owner of firearms, Fisher was convicted in 1997 of “harass[ing]” his wife and daughter in violation of section 711-1106 of the Hawaii Revised Statutes. Following that conviction, Fisher was placed on probation and surrendered his firearms to the Honolulu Police Department (“HPD”) in compliance with a state-court order. After completing his probation, Fisher requested the return of his firearms. The state court granted his request on the condition that there were no outstanding orders or circumstances that otherwise prohibited his possession of firearms under Hawaii or federal law. HPD then returned Fisher’s firearms.

More than ten years later, Fisher applied for a permit to acquire an additional firearm. In response, HPD not only denied Fisher’s application but also informed him that he was prohibited from owning and possessing firearms altogether because of his 1997 conviction. HPD ordered Fisher to surrender or otherwise lawfully dispose of all firearms that he owned or possessed at that time. Fisher transferred ownership of his firearms to his wife and sued HPD in federal district court.

Fisher sought monetary and injunctive relief against the City and County of Honolulu and HPD’s Chief of Police, Louis Kealoha. Fisher alleged that he is qualified to own and possess firearms under Hawaii law and that HPD’s denial of his permit application and its order to surrender his existing firearms violated his Second Amendment rights. The defendants moved for summary judgment, arguing that Fisher’s 1997 harassment conviction constitutes a conviction for a “misdemeanor crime of domestic violence” such that both federal and Hawaii law prohibit Fisher from possessing firearms. See 18 U.S.C. § 922(g)(9); Haw. Rev. Stat. § 134-7(a). The district court agreed and granted summary judgment to the defendants on all claims. The district court also exercised its discretion to consider additional constitutional arguments that Fisher raised during the summary judgment proceedings, but determined that applying section 134-7 of the Hawaii Revised Statutes to Fisher did not violate the Second Amendment.

STANDARD OF REVIEW

We review de novo a district court’s grant of summary judgment. Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). Because the material facts are not in dispute, we consider only whether the district court correctly applied the law. See id. We may affirm on any basis supported by the record. Satey v. JPMorgan Chase & Co., 521 F.3d 1087, 1091 (9th Cir. 2008).

DISCUSSION

This appeal involves the interaction of three statutory provisions: (1) section 134-7(a) of the Hawaii Revised Statutes, which prohibits a person from owning or possessing firearms if that person is prohibited from possessing firearms under federal law; (2) 18 U.S.C. § 922(g)(9), which prohibits the possession of firearms by persons convicted of any “misdemeanor crime of domestic violence”; and (3) 18 U.S.C. § 921(a)(33)(B)(ii), which provides that a person “shall not be considered to have been convicted of [a misdemeanor crime of domestic violence] ... if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored.” Although Fisher states that he challenges only section 134-7, that statute, in relevant part, merely incorporates federal law. Consequently, much of his argument (and our analysis) focuses on the latter federal statutes.

Fisher’s argument proceeds in two parts. First, he contends that, as a matter of statutory construction, section 922(g)(9) applies only in states where each of the mechanisms listed in section 921(a)(33)(B)(ii) (expungement, set-aside, pardon, and civil rights restoration) are available to restore Second Amendment rights. Second, he contends that even if the statute itself does not require the availability of all listed mechanisms, Hawaii’s application of section 922(g)(9)’s prohibition to Fisher is unconstitutional without them.

A. Interpretation of 18 U.S.C. § 921(a) (38) (B)(ii).

The issue of statutory construction presented in this case is easily resolved. As we have said, section 922(g)(9) provides that “[ijt shall be unlawful for any person ... who has been convicted in any court of a misdemeanor crime of domestic violence” to possess firearms. 18 U.S.C. § 922(g)(9). A person “shall not be considered to have been convicted of a [misdemeanor crime of domestic violence] ... if the conviction has been expunged or set aside, or is an offense for which-the person has been pardoned or has had civil rights restored ... unless the pardon, expungement, or restoration of civil rights expressly provides that the person may not ship, transport, possess, or receive firearms.” Id. § 921(a)(33)(B)(ii).

The plain language of these statutory provisions makes clear that section 921 (a)(33)(B)(ii) creates exceptions to section 922(g)(9)’s general prohibition, rather than preconditions to its application. Cases interpreting 18 U.S.C. § 921(a)(20), a similar provision which exempts felons from section 922(g)(1)’s prohibition on firearm possession on the same four grounds, have reached the same conclusion. See Beecham v. United States, 511 U.S. 368, 373, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994) (rejecting the assumption “that Congress intended felons convicted by all jurisdictions to have access to all the procedures (pardon, expungement, set-aside, and civil rights restoration) specified in [section 921(a)(20) ]”); Logan v. United States, 552 U.S. 23, 35-36, 128 S.Ct. 475, 169 L.Ed.2d 432 (2007) (noting that sections 921(a)(20) and 921(a)(33)(B)(ii) are “corresponding” and interpreting them in parallel for that reason). Therefore, as a matter of statutory construction, the unavailability of a procedure for either expungement, set-aside, pardon, or civil rights restoration does not remove Fisher from the ambit of section 922(g)(9)’s prohibition or, by extension, Hawaii Revised Statute section 134-7(a)’s prohibition.

B. Second Amendment Challenge.

The constitutional question implicated in this case, on the other hand, is harder than it seems. To determine whether a law impermissibly infringes Second Amendment rights, we must ask whether the challenged law burdens conduct protected by the Second Amendment, and if so, we apply a level of scrutiny that corresponds to the nature and degree of the burden. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013).

We have previously determined that section 922(g)(9) burdens conduct protected by the Second Amendment and upheld its constitutionality, facially and as-applied, under intermediate scrutiny. Id. at 1137-42. Chovan considered, among other things, whether section 922(g)(9) could be constitutionally applied to a defendant based on a fifteen-year-old domestic violence misdemeanor conviction. Id. at 1141-42. We recognized that keeping firearms out of the hands of domestic abusers is an important government interest and noted the high rate of recidivism for domestic abusers and the number and likelihood of domestic violence deaths involving the use of a firearm. Id. at 1140.

We also rejected Chovan’s argument that section 922(g)(9) could not constitutionally apply to him because he had committed no further acts of domestic violence in the fifteen years following his conviction. Id. at 1141-42. Even assuming that Chovan had committed no such acts, we explained, Chovan had failed to adduce sufficient evidence: (1) contradicting the government’s evidence regarding the high rate of domestic violence recidivism; and (2) showing that a domestic abuser who has not re-offended after fifteen years is unlikely to do so again. Id. Thus, under intermediate scrutiny, the statute addressed a substantial governmental interest and was tailored sufficiently to satisfy intermediate scrutiny. Id. at 1142.

Here, Fisher argues that section 922(g)(9) is unconstitutional as applied to him for two reasons. First, Fisher argues, his harassment conviction occurred many years ago, and he has not committed any other crimes since that time. This argument is not meaningfully distinguishable from the one that we rejected in Chovan, and we reject it here as well. See id. at 1141-42.

Second, Fisher argues that section 922(g)(9) is unconstitutional as applied to him because Hawaii law provides for only one of the four restoration mechanisms listed in section 921(a)(33)(B)(ii): gubernatorial pardon. Though this second argument is not foreclosed by Chovan, we decline to address it here. Fisher concedes that he has not applied for a gubernatorial pardon for his 1997 conviction. Thus, Fisher has failed to avail himself of the one restoration mechanism that is available to him under Hawaii law, and he is in no position to argue that Hawaii’s restoration mechanisms are constitutionally insufficient. See In re Coleman, 560 F.3d 1000, 1005 (9th Cir. 2009) (“Where a dispute hangs on future contingencies that may or may not occur, it may be too impermissibly speculative to present a justiciable controversy.” (internal quotation marks and citations omitted)).

CONCLUSION

Because we affirm the district court’s decision on the basis of Fisher’s as-applied challenge to section 134-7(a) of the Hawaii Revised Statutes, we need not consider Fisher’s remaining arguments regarding section 134-7(b). Nor do we reach his due process argument regarding Hawaii’s gubernatorial pardon process, which he raises for the first time on appeal. See Aloha-Care v. Haw. Dep’t of Human Servs., 572 F.3d 740, 744 (9th Cir. 2009) (“Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal.”).

AFFIRMED.

KOZINSKI, Circuit Judge,

ruminating:

A state’s procedure for restoring Second Amendment rights bears directly on the degree to which the state encumbers those rights. See United States v. Chovan, 735 F.3d 1127, 1138 (9th Cir. 2013). Thus, despite defendants’ and amici’s furious protestations to the contrary, we must consider Hawaii’s available restoration procedures. Our modern Second Amendment jurisprudence trains its sights on the degree to which the state burdens the right and whether that burden is tailored to the state’s goal. See Fyock v. Sunnyvale, 779 F.3d 991, 998-1000 (9th Cir. 2015); see also District of Columbia v. Heller, 554 U.S. 570, 628 n.27, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008). Whether a state has a procedure for restoring Second Amendment rights plainly affects both the weight of the burden and our measure of its tailoring.

Criminal punishment, of course, always involves the deprivation of rights, but such deprivations can still raise constitutional concerns. See, e.g., Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (marriage and speech); Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985) (equal protection); Mayweathers v. Newland, 258 F.3d 930 (9th Cir. 2001) (free exercise). The extent of the deprivation matters. Most recently, for example, federal courts have looked skeptically at lifelong restrictions on sex offenders’ Internet access. See, e.g., Doe v. Prosecutor, Marion Cty., 705 F.3d 694, 695 (7th Cir. 2013); see also Packingham v. North Carolina, — U.S. -, 137 S.Ct. 368, 196 L.Ed.2d 283 (2016) (mem.) (granting certiorari on a similar issue). While restrictions on each right have their own distinctive history—and restrictions on the Second Amendment are no exception, see Heller, 554 U.S. at 626-28, 128 S.Ct. 2783—it is unsurprising that we might look askance at a state’s permanent restriction on a misdemeanant’s right to bear arms.

Hawaii’s procedure for restoring Second Amendment rights is notably slender: The governor can pardon someone. But gubernatorial clemency is without constraint; as Blackstone put it, an executive’s mercy springs from “a court of equity in his own breast.” 4 William Blackstone, Commentaries *390. This unbounded discretion sits in uneasy tension with how rights function. A right is a check on state power, a check that loses its force when it exists at the mercy of the state. Government whim is the last refuge of a precarious right. And while Fisher’s case gives us no occasion to seek better refuge, others will.

In other contexts, we don’t let constitutional rights hinge on unbounded discretion; the Supreme Court has told us, for example, that “[t]he First Amendment prohibits the vesting of such unbridled discretion in a government official.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 133, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). Despite what some may continue to hope, the Supreme Court seems unlikely to reconsider Heller. The time has come to treat the Second Amendment as a real constitutional right. It’s here to stay.

      . Earlier in the proceedings, the district court granted preliminary relief to Fisher based on its determination that Fisher’s harassment conviction did not constitute a crime of domestic violence. After the Supreme Court’s decision United States v. Castleman, - U.S. -, 134 S.Ct. 1405, 1410, 188 L.Ed.2d 426 (2014), the defendants filed a new motion for summary judgment, and relying on Castle-man, the district court determined that Fisher’s conviction did, in fact, constitute a crime of domestic violence. On appeal, Fisher no longer contests that the harassment offense underlying his 1997 conviction qualifies categorically as a "misdemeanor crime of domestic violence.” Therefore, we will assume that Fisher is a person convicted of a “misdemeanor crime of domestic violence” within the meaning of 18 U.S.C. § 922(g)(9).

      . The defendants argue that our decision in Chovan forecloses this argument as well. Unlike Fisher, however, Chovan never argued that section 922(g)(9) was unconstitutional as applied to him because California (Chovan’s state of conviction) provided too few of the restoration mechanisms listed in section 921(a)(33)(B)(ii). See Chovan, 735 F.3d at 1137—42. Indeed, in Chovan, we applied “intermediate” rather than "strict” judicial scrutiny in part because section 922(g)(9)’s "burden” on Second Amendment rights was "lightened” by those mechanisms. Id at 1138; see also id. at 1151 (Bea, J., concurring) (concluding that section 922(g)(9) was "narrowly tailored” to a "compelling” government interest in part because of the restoration mechanisms listed in section 92 l(a)(33)(B)(ii)). Thus, we reject the defendants’ contention that Cho-van forecloses Fisher’s second argument here.

      . Section 134-7(b) of the Hawaii Revised Statutes provides that a person may not "own, possess, or control any firearm” if the person "has been convicted in [Hawaii] or elsewhere of having committed a felony, or any crime of violence, or an illegal sale of any drug.” In his briefing, Fisher argues that insofar as section 134-7(b) independently prohibits him from possessing a firearm as a person convicted of a "crime of violence,” that provision violates the Second Amendment, because it allows no exceptions for expungement, set-aside, pardon, or the restoration of civil rights. We do not reach Fisher's challenge to section 134-7(b) because, as we have explained, we conclude that Fisher can constitutionally be denied a firearms permit pursuant to section 134-7(a).