author: IKUTA, Circuit Judge:

text:
    Daniel NORCIA, on his own behalf and on behalf of all others similarly situated, Plaintiff-Appellee, v. SAMSUNG TELECOMMUNICATIONS AMERICA, LLC, a New York Corporation; Samsung Electronics America, Inc., a New Jersey corporation, Defendants-Appellants.
    No. 14-16994
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 17, 2016 San Francisco, California
    Filed January 19, 2017

      John R. Hurley (argued), Eduardo G. Roy, Daniel C. Quintero, and Jill Dessa-lines, Prometheus Partners L.L.P., San Francisco, California, for Plaintiff-Appel-lee.
    Sean D. Unger (argued), John P. Phillips, and Ryan C. Nier, Paul Hastings LLP, San Francisco, California, for Defendants-Appellants.
    Before: SIDNEY R. THOMAS, Chief Judge, and CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.
   OPINION

IKUTA, Circuit Judge:

Daniel Norcia filed a class action complaint against Samsung Telecommunications America, LLC, and Samsung Electronics America, Inc., (collectively, “Samsung”), alleging that Samsung made misrepresentations as to the performance of the Galaxy S4 phone. Samsung moved to compel arbitration of the dispute on the ground that an arbitration provision, which was contained in a warranty brochure included in the Galaxy S4 box, was binding on Norcia. We affirm the district court’s denial of Samsung’s motion.

I

On May 23, 2013, Norcia entered a Verizon Wireless store in San Francisco, California, to purchase a Samsung Galaxy S4 phone. Norcia paid for the phone at the register, and a Verizon Wireless employee provided a receipt entitled “Customer Agreement” followed by the name and address of the Verizon Wireless store. The receipt stated the order location, Norcia’s mobile number, the product identification number, and the contract end date. Under the heading “Items,” the receipt stated “WAR6002 1 YR. MFG. WARRANTY.” Under the heading “Agreement,” the receipt included three provisions, including a statement (in all capital letters):

I agree to the current Verizon Wireless Customer Agreement, including the calling plan, (with extended limited warranty/service contract, if applicable), and other terms and conditions for services and selected features I have agreed to purchase as reflected on the receipt, and which have been presented to me by the sales representative and which I had the opportunity to review.

The receipt also stated (in all capital letters): “I understand that I am agreeing to ... settlement of disputes by arbitration and other means instead of jury trials, and other important terms in the Customer Agreement.” The Customer Agreement did not reference Samsung or any other party. Norcia signed the Customer Agreement, and Verizon Wireless emailed him a copy.

After signing the Customer Agreement, Norcia and a Verizon Wireless employee took the Galaxy S4 phone, still in its sealed Samsung box, to a table. The front of the product box stated “Samsung Galaxy S4.” The back of the box stated: “Package Contains ... Product Safety & Warranty Brochure.” The Verizon Wireless employee opened the box, unpacked the phone and materials, and helped Norcia transfer his contacts from his old phone to the new phone. Norcia took the phone, the phone charger, and the headphones with him as he left the store, but he declined the offer by the Verizon Wireless employee to take the box and the rest of its contents.

The Samsung Galaxy S4 box contained, among other things, a “Product Safety & Warranty Information” brochure. The 101-page brochure consisted of two sections. Section 1 contained a wide range of health and safety information, while Section 2 contained Samsung’s “Standard Limited Warranty” and “End User License Agreement for Software.” The Standard Limited Warranty section explained the scope of Samsung’s express warranty. In addition to explaining Samsung’s obligations, the procedure for obtaining warranty service, and the limits of Samsung’s liability, the warranty section included the following (in all capital letters):

All disputes with Samsung arising in any way from this limited warranty or the sale, condition or performance of the products shall be resolved exclusively through final and binding arbitration, and not by a court or jury.

Later in the section, a paragraph explained the procedures for arbitration and stated that purchasers could opt out of the arbitration agreement by providing notice to Samsung within 30 calendar days of purchase, either through email or by calling a toll-free telephone number. It also stated that opting out “will not affect the coverage of the Limited Warranty in any way, and you will continue to enjoy the benefits of the Limited Warranty.” Norcia did not take any steps to opt out.

In February 2014, Norcia filed a class action complaint against Samsung, alleging that Samsung misrepresented the Galaxy S4’s storage capacity and rigged the phone to operate at a higher speed when it was being tested. The complaint alleged that these deceptive acts constituted common law fraud and violated California’s Consumers Legal Remedies Act (Cal. Civ. Code §§ 1750-1784), California’s Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200-17210), and California’s False Advertising Law (Cal. Bus. & Prof. Code §§ 17500-17509). The complaint sought certification of the case as a class action for all purchasers of the Galaxy S4 phone in California. Norcia did not bring any claims for breach of warranty.

Instead of filing an answer to the complaint, Samsung moved to compel arbitration by invoking the arbitration provision in the Product Safety & Warranty Information brochure. The district court denied Samsung’s motion. It held that even though Norcia should be deemed to have received the Galaxy S4 box, including the Product Safety & Warranty Information brochure, the receipt of the brochure did not form an agreement to arbitrate non-warranty claims. Samsung timely appealed the district court’s order.

The district court had jurisdiction under 28 U.S.C. § 1332(d)(2), because the parties satisfied minimal diversity and the amount in controversy exceeded $5 million. We have jurisdiction under the Federal Arbitration Act, 9 U.S.C. § 16. “We review the district court’s decision to deny the motion to compel arbitration de novo.” Davis v. Nordstrom, Inc., 755 F.3d 1089, 1091 (9th Cir. 2014). “Factual findings are reviewed for clear error, but where no facts are in dispute our entire review is de novo.” Id. (internal citation omitted).

II

“ [Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)). Therefore, to evaluate the district court’s denial of Samsung’s motion to compel arbitration, we must first determine “whether a valid agreement to arbitrate exists.” Chiron Corp. v. Ortho Diagnostic Sys., Inc., 207 F.3d 1126, 1130 (9th Cir. 2000); see also Kilgore v. Key-Bank, Nat’l Ass’n, 718 F.3d 1052, 1058 (9th Cir. 2013) (en banc). As the party seeking to compel arbitration, Samsung bears “the burden of proving the existence of an agreement to arbitrate by a preponderance of the evidence.” Knutson v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014) (citing Rosenthal v. Great W. Fin. Sec. Corp., 14 Cal.4th 394, 413, 58 Cal.Rptr.2d 875, 926 P.2d 1061 (1996)).

Samsung raises two theories of contract formation to support its argument that Norcia entered into a binding contract with Samsung to arbitrate his claims. First, Samsung claims that the inclusion of the arbitration provision in the Product Safety & Warranty Information brochure created a valid contract between Samsung and Norcia to arbitrate all claims related to the Galaxy S4 phone. Second, Samsung contends that the Customer Agreement signed by Norcia incorporated the terms of its Product Safety & Warranty Information brochure by reference and created a binding contract between Norcia and Samsung.

In analyzing these arguments, we “apply ordinary state-law principles that govern the formation of contracts” to decide whether an agreement to arbitrate exists. First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). Here, the parties agree that California law governs the issue of contract formation. In discerning California law, we are bound by the decisions of the California Supreme Court, “including reasoned dicta.” Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013). If the California Supreme Court has not directly addressed the question before us, we must predict how it would decide the issue. See Glendale Assocs., Ltd. v. NLRB, 347 F.3d 1145, 1154 (9th Cir. 2003) (internal quotation marks omitted). We generally will “follow a published intermediate state court decision regarding California law unless we are convinced that the California Supreme Court would reject it.” Muniz, 738 F.3d at 219. Applying California law, we address each of Samsung’s theories in turn.

A

We first evaluate whether the Product Safety & Warranty Information brochure in the Galaxy S4 box created a binding contract between Norcia and Samsung to arbitrate the claims in Norcia’s complaint. Although the brochure is in the form of an express consumer warranty from Samsung to Norcia, the arbitration provision states that arbitration is required not only for “[a]ll disputes with Samsung arising in any way from this limited warranty” but also for all disputes arising from “the sale, condition or performance of the products.” Norcia’s complaint involves a non-warranty dispute. Thus, our analysis is governed by contract law — not warranty law.

We begin with the basic principles of California contract law. Generally, under California law, “the essential elements for a contract are (1) ‘[pjarties capable of contracting;’ (2) ‘[tjheir consent;’ (3) ‘[a] lawful object;’ and (4) ‘[sufficient cause or consideration.’ ” United States ex rel. Oliver v. Parsons Co., 195 F.3d 457, 462 (9th Cir. 1999) (alterations in original) (quoting Cal. Civ. Code § 1550). A party who is bound by a contract is bound by all its terms, whether or not the party was aware of them. “A party cannot avoid the terms of a contract on the ground that he or she failed to read it before signing.” Marin Storage & Trucking, Inc. v. Benco Contracting & Eng’g, Inc., 89 Cal.App.4th 1042,1049,107 Cal.Rptr.2d 645 (2001).

“A contract for sale of goods may be made in any manner sufficient to show agreement, including conduct by both parties which recognizes the existence of such a contract.” Cal. Com. Code § 2204(1). “Courts must determine whether the outward manifestations of consent would lead a reasonable person to believe the offeree has assented to the agreement.” Knutson, 771 F.3d at 565 (citing Meyer v. Benko, 55 Cal.App.3d 937, 942-43, 127 Cal.Rptr. 846 (1976)).

As a general rule, “silence or inaction does not constitute acceptance of an offer.” Golden Eagle Ins. Co. v. Foremost Ins. Co., 20 Cal.App.4th 1372, 1385, 25 Cal.Rptr.2d 242 (1993); see also Sorg v. Fred Weisz & Assocs., 14 Cal.App.3d 78, 81, 91 Cal.Rptr. 918 (1970). California courts have long held that “[a]n offer made to another, either orally or in writing, cannot be turned into an agreement because the person to whom it is made or sent makes no reply, even though the offer states that silence will be taken as consent, for the offerer cannot prescribe conditions of rejection so as to turn silence on the part of the offeree into acceptance.” Leslie v. Brown Bros. Inc., 208 Cal. 606, 621, 283 P. 936 (1929); see also 1 Witkin, Summary of California Law, Contracts § 193 (10th ed. 2005) (collecting California cases).

There are exceptions to this rule, however. An offeree’s silence may be deemed to be consent to a contract when the offeree has a duty to respond to an offer and fails to act in the face of this duty. Golden Eagle, 20 Cal.App.4th at 1386, 25 Cal.Rptr.2d 242; see also Beatty Safway Scaffold, Inc. v. Skrable, 180 Cal. App.2d 650, 655, 4 Cal.Rptr. 543 (1960). For example, in Gentry v. Superior Court, an employee signed an “easily readable, one-page form” acknowledging that he would be required to arbitrate all employment-related legal disputes unless he opted out. 42 Cal.4th 443, 468, 64 Cal. Rptr.3d 773, 165 P.3d 556 (2007), abrogated on other grounds by AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). By signing this agreement, the employee “manifested his intent to use his silence, or failure to opt out, as a means of accepting the arbitration agreement.” Id. Therefore, the California Supreme Court held that the employee’s failure to act constituted acceptance of the agreement. Id.

An offeree’s silence may also be treated as consent to a contract when the party retains the benefit offered. See Golden Eagle, 20 Cal.App.4th at 1386, 25 Cal. Rptr.2d 242; see also Cal. Civ. Code § 1589 (“A voluntary acceptance of the benefit of a transaction is equivalent to a consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.”). In Golden Eagle, a couple received a renewal certificate from their insurance company, and retained the benefit of the renewed insurance policy without paying the premium. 20 Cal.App.4th at 1386, 25 Cal.Rptr.2d 242. The court held that in light of the existing relationship between the couple and the insurance company, the couple’s retention of the renewal certification was “sufficient evidence of acceptance of the renewal policy” under California law. Id. at 1386-87,25 Cal.Rptr .2d 242.

Even if there is an applicable exception to the general rule that silence does not constitute acceptance, courts have rejected the argument that an offeree’s silence constitutes consent to a contract when the offeree reasonably did not know that an offer had been made. See Windsor Mills, Inc. v. Collins & Aikman Carp., 25 Cal. App.3d 987, 993, 101 Cal.Rptr. 347 (1972). In Windsor Mills, a buyer ordered yarn from a supplier, and the supplier acknowledged the order on a printed form which stated “in small print” on the reverse side of the form, “15. Arbitration: Any controversy arising out of or relating to this contract shall be settled by arbitration in the City of New York — ” Id. at 989-90, 101 Cal.Rptr. 347. The court concluded that the buyer was not bound by this provision because “an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious.” Id. at 993, 101 CaLRptr. 347; see also Marin Storage, 89 Cal.App.4th at 1049-50, 107 Cal.Rptr.2d 645 (noting that a party is not bound by a document that “does not appear to be a contract and the terms are not called to the attention of the recipient”).

We now apply these principles of California law to determine whether Nor-cia engaged in any conduct sufficient to show that he agreed to be bound by the arbitration agreement in the Product Safety & Warranty Information brochure. There is no dispute that Norcia did not expressly assent to any agreement in the brochure. Nor did Norcia sign the brochure or otherwise act in a manner that would show “his intent to use his silence, or failure to opt out, as a means of accepting the arbitration agreement.” Gentry, 42 Cal.4th at 468, 64 Cal.Rptr.3d 773, 165 P.3d 556. Under California law, an offer-ee’s inaction after receipt of an offer is generally insufficient to forra a contract. Leslie, 208 Cal. at 621, 283 P. 936. Therefore, Samsung’s offer to arbitrate all disputes with Norcia “cannot be turned into an agreement because the person to whom it is made or sent makes no reply, even though the offer states that silence will be taken as consent,” id. unless an exception to this general rule applies.

Samsung fails to demonstrate the applicability of any exception to the general California rule that an offeree’s silence does not constitute consent. Samsung has not pointed to any principle of California law that imposed a duty on Norcia to act in response to receiving the Product Safety & Warranty Information brochure. Gentry, 42 Cal.4th at 468, 64 Cal.Rptr.3d 773, 165 P.3d 556. Nor was there any previous course of dealing between the parties that might impose a duty on Norcia to act. See Beatty Safway Scaffold, 180 Cal.App.2d at 655, 4 CaLRptr. 543. Moreover, Samsung has not alleged that Norcia retained any benefit by failing to act. See Cal. Civ. Code § 1589. Indeed, the brochure states that Norcia was entitled to “the benefits of the Limited Warranty” regardless whether Norcia opted out of the arbitration agreement.

In the absence of an applicable exception, California’s general rule for contract formation applies. Because Norcia did not give any “outward manifestations of consent [that] would lead a reasonable person to believe the offeree has assented to the agreement,” Knutson, 771 F.3d at 565, no contract was formed between Norcia and Samsung, and Norcia is not bound by the arbitration provision contained in the brochure.

To counter this conclusion, Samsung argues that Norcia was bound by the terms set forth in the brochure because the brochure is analogous to a shrink-wrap license, which we held was enforceable in California, see Wall Data Inc. v. L.A. Cty. Sheriffs Dep’t, 447 F.3d 769, 782 (9th Cir. 2006), or is analogous to terms included in a box sent to the consumer (referred to here as an “in-the-box” contract), which the Seventh Circuit has held to be enforceable, see Hill v. Gateway 2000, Inc., 105 F.3d 1147,1148 (7th Cir. 1997). We consider each of these arguments in turn.

In Wall Data, we considered a software manufacturer’s claim that a sheriffs department had violated the terms of its shrink-wrap license, click-through license, and volume license booklets, and infringed the manufacturer’s copyright, by installing software on 6,007 computers when the department was licensed to install the software on only 3,663 computers. 447 F.3d at 773-75. We defined a “shrink-wrap license” as “a form on the packing or on the outside of the CD-ROM containing the software which states that by opening the packaging or CD-ROM wrapper, the user agrees to the terms of the license.” Id. at 775 n.4. In connection with upholding an evidentiary ruling by the district court, we stated that such licenses are enforceable in California, id. at 782, citing Lozano v. AT&T Wireless, 216 F.Supp.2d 1071, 1073 (C.D. Cal. 2002). We did not address the question whether the license created a contract; rather, we held that the sole issue to be resolved at trial was whether the sheriffs department violated the terms of the software licenses, and therefore the district court did not err in declining to provide an instruction on contract formation. Wall Data, 447 F.3d at 786.

In light of this limited analysis, Wall Data at most stands for the proposition that a shrink-wrap license of intellectual property is enforceable in California. This prediction of how California courts would rule is not untenable: Where a notice on a package states that the user agrees to certain terms by opening the package, a court could reasonably conclude, consistent with California contract law, that the user has a duty to act in order to negate the conclusion that the consumer had accepted the terms in the notice. This principle does not help Samsung, however. Even if a license to copy software could be analogized to a brochure that contains contractual terms, the outside of the Galaxy S4 box did not notify the consumer that opening the box would be considered agreement to the terms set forth in the brochure. Cf. id. at 775 n.4. Under these circumstances, California’s general rule that silence or inaction does not constitute acceptance is binding. Accordingly, Wall Data does not support Samsung’s argument that Norcia was bound by the brochure contained in the Galaxy S4 box.

We next consider Samsung’s argument that the Product Safety & Warranty Information brochure is enforceable as an in-the-box contract, as the Seventh Circuit held in Hill, 105 F.3d 1147. In Hill, consumers ordered a computer over the phone. Id. at 1148. When the box arrived, it contained the computer and “a list of terms, said to govern unless the customer returned] the computer within 30 days.” Id. The terms included an arbitration provision. Id. The Seventh Circuit stated that “[practical considerations support allowing vendors to enclose the full legal terms with their products,” id. at 1149, and concluded that “[b]y keeping the computer beyond 30 days, the [buyers] accepted [the seller’s] offer, including the arbitration clause,” id. at 1150.

Samsung claims that California courts have adopted the reasoning expressed in Hill, citing Weinstat v. Dentsply International Inc., 180 Cal.App.4th 1213, 103 Cal. Rptr.3d 614 (2010). In Weinstat, dentists brought an action for breach of express warranty (among other claims) against the manufacturer of a tooth-cleaning device. 180 Cal.App.4th at 1217-18, 103 Cal.Rptr.3d 614. The warranties at issue were contained in an instruction booklet sealed in the box containing the device. Id. at 1228, 103 Cal.Rptr.3d 614. The manufacturer argued that such statements were not express warranties because the dentists were not aware of them before they bought the product. Id. The court rejected that argument, holding that absent proof to the contrary, any affirmation made by the manufacturer before the delivery of the product to a consumer, including statements contained in the product box, constituted an express warranty. Id. at 1229,103 Cal.Rptr.3d 614. Although section 2313 of the California Commercial Code provides that express warranties are comprised of affirmations by the manufacturer that become “part of the basis of the bargain,” the court stated that the parties’ bargain “is distinguishable from the ‘contract’” so a manufacturer’s affirmations could become “part of the basis of the bargain” for purposes of warranty law even after a contract was formed. Id. at 1230, 103 Cal. Rptr.3d 614. Therefore, the dentists could state a cause of action for breach of the express warranties contained in the instruction booklet. Id.

Samsung argues that Weinstat, read in light of Hill, stands for the proposition that terms and conditions included in a brochure in a product box constitute a binding contract between the manufacturer and the consumer. Therefore, Samsung claims, Norcia accepted Samsung’s offer contained in the Product Safety & Warranty Information brochure, including the arbitration clause, which became a binding agreement between Norcia and Samsung.

We disagree. Samsung’s reb-anee on Weinstat is misplaced, because it is based on a misunderstanding of the difference between California warranty law and contract law, which are governed by different sets of rules. Compare Cal. Com. Code §§ 2201-2210 (governing contract formation), with Cal. Com. Code §§ 2313-2317 and Cal. Civ. Code §§ 1790-1795.8 (governing the formation of express and implied warranties). A seller is bound by any express warranties given to the buyer, including statements in written warranty agreements, advertisements, oral representations, or presentations of samples or models. See Keith v. Buchanan, 173 Cal.App.3d 13, 20, 220 Cal.Rptr. 392 (1985); see also 4 Witkin, Summary of California Law, Sales §§ 56-62 (10th ed. 2005). Language in a written warranty agreement is “contractual” in the sense that it creates binding, legal obligations on the seller, see Daugherty v. Am. Honda Motor Co., 144 Cal.App.4th 824, 830, 51 Cal.Rptr.3d 118 (2006), but a warranty does not impose binding obligations on the buyer. Rather, warranty law “focuses on the seller’s behavior and obligation — his or her affirmations, promises, and descriptions of the goods — all of which help define what the seller in essence agreed to sell,” Weinstat, 180 Cal.App.4th at 1228,103 Cal. Rptr.3d 614 (internal quotation marks omitted); see also Cal. Com. Code § 2313. A buyer may have to fulfill certain statutory conditions to obtain the benefit of a warranty. See, e.g., Cal. Civ. Code § 1793.02(c) (stating that “[i]f the buyer returns the [assistive device for an individual with a disability] within the period specified in the written warranty,” the seller must adjust or replace the device (emphasis added)). But a warranty generally does not impose any independent obligation on the buyer outside of the context of enforcing the seller’s promises. Weinstat, 180 Cal.App.4th at 1228, 103 Cal. Rptr.3d 614 (“[T]he whole purpose of warranty law is to determine what it is that the seller has in essence agreed to sell_” (internal quotation marks omitted)); Cal. Com. Code § 2313(l)(a) (stating that an express warranty is a “promise made by the seller to the buyer which relates to the goods”). A condition that must be satisfied before a consumer can enforce a warranty is not equivalent to a freestanding obligation that limits a buyer’s rights outside of the scope of warranty itself.

Weinstat focused on warranty formation under section 2313 of the California Commercial Code, not on contract formation. Accordingly, Weinstat did not adopt the rule stated in Hill, that statements in a brochure enclosed in a product box create a contract between the seller and consumer that can limit the consumer’s rights to bring legal actions against the manufacturer for claims not involving an express warranty.

Samsung also relies on a Second Circuit case, Schnabel v. Trilegiant Corp., 697 F.3d 110 (2d Cir. 2012), to support its argument that California courts have adopted the reasoning in Hill for enforcing in-the-box contracts. In Schnabel, the Second Circuit considered a complaint involving defendants who encouraged website visitors to enroll for a free trial period of an entertainment service, and then continued to bill those customers each month if they failed to cancel the service. 697 F.3d at 114-17. The defendants moved to compel arbitration of the complaint. Id. at 117. They argued that they had presented an arbitration provision to the customers through a hyperlink on their website, as well as by sending the customers a follow-up email. Id. at 113. By failing to cancel the service, the defendants argued, the customers had agreed to be bound by the arbitration provision. Id. at 121. In responding to this argument, Schnabel noted that some recent cases had held that licenses included in a product box may “become enforceable contracts upon the customer’s purchase and receipt of the package and the failure to return the product after reading, or at least having a realistic opportunity to read, the terms and conditions of the contract included with the product.” Id. at 122 (citing Hill, 105 F.3d at 1150). But even cases applying these principles, Schnabel noted, “do not nullify the requirement that a consumer be on notice of the existence of a term before he or she can be legally held to have assented to it.” Id. at 124. Because the information provided to the customers did not give them inquiry notice of the arbitration provision included in the email, Schnabel rejected the defendants’ arguments as a matter of both California and Connecticut contract law (without resolving the dispute as to which state’s law was applicable). Id. at 128.

We used similar reasoning in Knutson. See 771 F.3d at 566-67. This case raised the question whether a plaintiff who bought a Toyota vehicle that included a 90-day trial subscription to a satellite radio service was bound by a customer agreement in a “Welcome Kit” that he received a month later from the radio service. Id. at 561-62. Applying California law, we held that the plaintiff was not bound because a reasonable person in the plaintiffs position would not understand that receiving the Welcome Kit and failing to cancel the trial subscription to the radio service constituted assent to the arbitration provision. Id. at 565. We rejected the defendant’s argument that its customer agreement was a valid shrink-wrap agreement, holding that while “a party cannot avoid the terms of a contract by failing to read them before signing,” id. at 567, no contract is formed “when the writing does not appear to be a contract and the terms are not called to the attention of the recipient,” id. (quoting Marin Storage, 89 Cal. App.4th at 1049-50, 107 Cal.Rptr.2d 645).

Neither Schnabel nor Knutson held that California courts enforce in-the-box contracts. Rather, they concluded that even if a customer may be bound by an in-the-box contract under certain circumstances, such a contract is ineffective where the customer does not receive adequate notice of its existence. Even under this analytic approach, Samsung’s arguments would fail. In this case, Samsung gave a brochure entitled “Product Safety & Warranty Information.” Such a brochure indicates that it contains safety information and the seller’s warranty, which constitutes the seller’s “affirmation of fact[s] or promise” relating to the Galaxy S4 phone. Cal. Com. Code § 2313(l)(a). A reasonable person in Norcia’s position would not be on notice that the brochure contained a freestanding obligation outside the scope of the warranty. Nor would a reasonable person understand that receiving the seller’s warranty and failing to opt out of an arbitration provision contained within the warranty constituted assent to a provision requiring arbitration of all claims against the seller, including claims not involving the warranty. Because “an offeree, regardless of apparent manifestation of his consent, is not bound by inconspicuous contractual provisions of which he was unaware, contained in a document whose contractual nature is not obvious,” Windsor Mills, Inc., 25 Cal. App.3d at 993, 101 Cal.Rptr. 347, Norcia was not bound by the arbitration provision even if the in-the-box contract were otherwise enforceable under California law.

In the absence of support from California courts, Samsung urges us to conclude, as the Seventh Circuit did in Hill, that the practicalities of consumer transactions require the enforcement of in-the-box contracts and that consumers expect that products will come with additional terms. We decline this request. Even if we were persuaded by Samsung’s argument, “the Legislature, and not the courts, is vested with the responsibility to declare the public policy of the state.” Green v. Ralee Eng’g Co., 19 Cal.4th 66, 71, 78 Cal.Rptr.2d 16, 960 P.2d 1046 (1998). If the California Legislature believes that its current commercial code fails to strike an appropriate balance between consumer expectations and the burden on commerce, it can amend the law.

Because California courts have not adopted the principle set forth in Hill, but have made clear that silence alone does not constitute assent, see Golden Eagle, 20 Cal.App.4th at 1385, 25 Cal.Rptr.2d 242, we reject Samsung’s argument that Norcia reasonably assented to the arbitration provision because he failed to opt out of the arbitration provision contained in the product box. Under the circumstances in this case, we conclude that Samsung’s inclusion of a brochure in the Galaxy S4 box, and Norcia’s failure to opt out, does not make the arbitration provision enforceable against Norcia.

B

We next turn to Samsung’s second argument, that Norcia agreed to arbitrate his claims by signing the Customer Agreement with Verizon Wireless. This argument is meritless.

The Customer Agreement is an agreement between Verizon Wireless and its customer. Samsung is not a signatory. While the agreement itself includes a number of terms governing the relationship between Norcia and Verizon Wireless, including an arbitration provision, nothing in the agreement references Samsung or any other party.

Samsung argues that it may enforce the arbitration agreement because it is a third-party beneficiary of the agreement between Verizon Wireless and Nor-cia. Under California law, “[t]he mere fact that a contract results in benefits to a third party does not render that party a ‘third party beneficiary’ rather, the parties to the contract must have intended the third party to benefit. Matthau v. Superior Court, 151 Cal.App.4th 593, 602, 60 Cal. Rptr.3d 93 (2007); see also Hess v. Ford Motor Co., 27 Cal.4th 516, 524, 117 Cal. Rptr.2d 220, 41 P.3d 46 (2002); 1 Witkin, Summary of California Law, Contracts § 689 (10th ed. 2005). In this case, Samsung does not point to any evidence in the record indicating that Norcia and Verizon Wireless intended the Customer Agreement to benefit Samsung. Therefore, we conclude that Samsung fails to bear its burden of establishing that it was a third-party beneficiary.

Ill

The Federal Arbitration Act “embodies the national policy favoring arbitration.” Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006). But the “liberal federal policy regarding the scope of arbi-trable issues is inapposite” when the question is “whether a particular party is bound by the arbitration agreement.” Comer v. Micor, Inc., 436 F.3d 1098, 1104 n.11 (9th Cir. 2006) (emphasis omitted); see also Volt Info. Scis., Inc. v. Bd. of Trs. of the Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (“[T]he FAA does not require parties to arbitrate when they have not agreed to do so.... ”). Because Samsung failed to carry its burden of proving the existence of a contract with Norcia to arbitrate as a matter of California law, the district court did not err in denying Samsung’s motion to compel arbitration.

AFFIRMED.

      . Our unreasoned conclusion that California courts would enforce a shrink-wrap license is not free from doubt. Lozano did not cite any California cases and has since been vacated. See Lozano v. AT&T Wireless, No. CV02-00090WJRAJWX, 2003 WL 25548566, at *1 (C.D. Cal. Aug. 18, 2003). We have found no California case addressing this issue, and Samsung has cited none.

      . Hitt did not determine which state's law applied to contract formation; nor did it cite the law of any state. 105 F.3d at 1149. Rather, the Seventh Circuit appeared to provide its own view of the Uniform Commercial Code. Id.

      . Under Weinstat, Samsung may be able to require Norcia to arbitrate claims arising out of the Standard Limited Warranty contained in the Product Safety & Warranty Information brochure, but we need not consider the enforceability of any such limitation because Norcia has not brought any warranty claims against Samsung,

      . Samsung also cites Murphy v. DirecTV, Inc., 724 F.3d 1218 (9th Cir. 2013), to support its argument that California courts recognize in-the-box contracts. But Murphy is inapposite. Murphy held that plaintiffs waived their argument that they had not assented to an arbitration provision contained in a customer agreement; therefore we provided no analysis of the elements required for a contract to be enforceable under California law. Id. at 1225 n.4. Absent such explanation, Murphy's dicta that the district court correctly concluded that plaintiffs had received the customer agreement, accepted defendant’s services, and were bound by the terms of the contract, does not provide guidance in this case.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Roy Red JOEY, Defendant-Appellant.
    No. 15-10096
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 18, 2016 San Francisco, California
    Filed January 19, 2017

      Cassie Bray Woo (argued), Assistant United States Attorney; Krissa M. Lan-ham, Deputy Appellate Chief; John S. Leonardo, United States Attorney; United States Attorney’s Office, Phoenix, Arizona; for Plaintiff-Appellee.
    Daniel L. Kaplan (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender; Office of the Federal Public Defender, Phoenix, Arizona; for Defendant-Appellant.
    Before: SIDNEY R. THOMAS, Chief Judge, and CARLOS T. BEA and SANDRA S. IKUTA, Circuit Judges.
   OPINION

IKUTA, Circuit Judge:

Roy Red Joey was convicted of two counts of abusive sexual contact under 18 U.S.C. § 2244(a)(5) and two counts of committing a felony offense involving a minor while required to register as a sex offender under 18 U.S.C. § 2260A. Joey argues that the district court procedurally erred in calculating the United States Sentencing Guidelines sentencing range for his § 2244(a)(5) convictions by applying § 4B1.5 of the Guidelines when Joey had also been convicted under § 2260A, which Joey contends punishes the same conduct as § 4B1.5. Thus, according to Joey, the district court violated the principle against double counting in applying the Guidelines. Because we cannot infer that the Sentencing Commission intended to preclude a § 4B1.5 determination for a § 2244(a)(5) offense when the defendant has also been convicted under § 2260A, we conclude that the district court did not commit a procedural error in calculating the Guidelines sentencing range, and we affirm,

I

In 1992, Roy Red Joey was convicted of aggravated sexual abuse of a child in violation of 18 U.S.C. §§ 1153 and 2241(c) after he forced his nine-year-old niece to the ground, covered her mouth with his hand, and digitally penetrated her vagina. As a result of this conviction, Joey was sentenced to 93 months imprisonment, and was required to register as a sex offender. Several years later, in 2011, Joey offended again, this time against the minor grandchildren of one of his friends. At the time, the children were living with their grandmother, and Joey was a frequent guest at her home, sometimes even staying overnight.

The indictment in this case alleged that Joey touched one victim’s breasts on one occasion and touched the other victim’s penis on three occasions. At trial, the government elicited testimony from the victims about these incidents. The first victim testified that Joey touched her “over and over and over again” on her thighs, arms, and once on her breasts. The other victim testified that Joey twice touched his penis as they watched television in the living room, once through the victim’s clothes and once under the clothes. On a third incident, the victim woke up in his bedroom to find Joey touching his penis. Eventually the victims’ older sister learned of these incidents, reported the abuse to law enforcement, and obtained legal guardianship of the victims so that they would not be returned to their grandmother’s house.

The government charged Joey with eight criminal counts. Counts 1 through 4 covered the four instances of inappropriate touching and alleged that each incident constituted a violation of 18 U.S.C. § 2244(a)(5) (prohibiting knowingly causing another person who is under twelve years old to engage in a sexual act). Counts 5 through 8 alleged violations of 18 U.S.C. § 2260A, which imposes a penalty on a defendant who commits a specified felony offense involving a minor while required by federal or state law to register as a sex offender. After a five-day trial, the jury returned guilty verdicts as to Counts 1 and 3 (two incidents involving sexual acts in violation of § 2244(a)(5)) and Counts 5 and 7 (two violations of § 2260A).

At sentencing, the district court adopted the Guidelines sentencing calculations from the Pre-Sentence Investigation Report (PSIR). See 18 U.S.C. § 3553(a)(4); U.S.S.G. § 1B1.1 (2014). The PSIR first calculated the Guidelines sentencing range for the § 2244(a)(5) convictions. It determined that the applicable Guidelines provision was § 2A3.4 (abusive sexual contact), and that the base offense level for the two convictions under § 2244(a)(5) was 12. U.S.S.G. § 2A3.4(a)(3). Turning to the specific offense characteristics listed in § 2A3,4(b), the PSIR determined that § 2A3.4(b)(l) required an increase in the offense level to 22 because the victims of the abusive sexual contact had not yet attained the age of twelve. Because Joey had been convicted of multiple counts, the PSIR applied the multiple count adjustment required in Part D of Chapter 3 of the Guidelines for the two convictions under § 2244(a)(5), which resulted in a combined adjusted offense level of 24. See id. § 1B1.1(4).

Finally, the PSIR determined that Joey was a repeat and dangerous sex offender against minors for purposes of § 4B1.5, and therefore subject to an additional upward offense level adjustment. See id. § 1B1.1(5); id. § 4B1.5(a)(l)(B). Section 4B1.5 provides, in relevant part:

(a) In any case in which the defendant’s instant offense of conviction is a covered sex crime, § 4B1.1 (Career Offender) does not apply, and the defendant committed the instant offense of conviction subsequent to sustaining at least one sex offense conviction:
(1) The offense level shall be the greater of:
(A) the offense level determined under Chapters Two and Three; or
(B) the offense level from the table below decreased by the number of levels corresponding to any applicable adjustment from § 3E1.1 (Acceptance of Responsibility): ■
Offense Statutory Offense
Maximum Level
(i) Life 37

Pursuant to § 4B1.5, because Joey’s § 2244(a)(5) convictions were covered sex crimes, § 4B1.1 did not apply to Joey, Joey had previously been convicted of a sex offense, and the statutory maximum for the § 2244(a)(5) offenses was life imprisonment, Joey’s total offense level for the § 2244(a)(5) convictions was 37. See id. § 4B1.5(a)(l). In addition, the PSIR determined that under § 4B1.5(a)(2) Joey’s criminal history was Category V.

The PSIR’s calculation of the Guidelines sentencing range for Joey’s two convictions under 18 U.S.C. § 2260A was simpler. Section 2A3.6 of the Guidelines provides that “[i]f the defendant was convicted under ... 18 U.S.C. § 2260A, the guideline sentence is the term of imprisonment required by statute.” Accordingly, the district court imposed the term of imprisonment required by § 2260A, “10 years in addition to the imprisonment imposed for” the underlying § 2244(a)(5) offenses.

Before sentencing, Joey submitted written objections to the PSIR. Among other things, he argued that the PSIR incorrectly determined that pursuant to § 4B1.5 his offense level should be 37 and his criminal history a Category V. Joey claimed that the ten-year sentence under § 2260A (for committing a new qualifying felony involving a minor while being required to register as a sex offender), and the increased offense level for his conviction under § 2244(a)(5) due to the application of § 4B1.5 (for committing new sex crimes after having been convicted of a prior sex offense), punished the same conduct. Put differently, Joey contended that in light of his § 2260A conviction, applying § 4B1.5 to his § 2244(a)(5) offenses was impermissible double punishment for the same acts and therefore constituted a procedural error in calculating his Guidelines sentencing range. Joey renewed these objections at the sentencing hearing and also argued that the overlap between §§ 4B1.5 and 2260A should at least factor into the fashioning of an appropriate sentence, which Joey suggested was 20 years imprisonment.

The district court rejected these arguments, holding that § 2260A “serves to punish for [] different conduct” from the Guidelines. After noting that it considered “all of the sentencing factors contained under Title 18 Section 3553(a),” the district court decided that a significant sentence was warranted in light of Joey’s long history of sexual misconduct “for the better part of 40 years.” Concluding that “the public is not safe with [Joey] as a free man,” the district court adjusted Joey’s offense level up to 39, thereby arriving at a Guidelines range of 360 months to life imprisonment. The district court then imposed two life sentences for Counts 1 and 3, to be served concurrently, and 120 months apiece for Counts 6 and 7, to run concurrent to one another but consecutive to the life sentences.

II

On appeal, Joey renews his claim that the district court erred in calculating the advisory Guidelines sentencing range for his convictions under § 2244(a)(5). According to Joey, the district court made a procedural error in applying § 4B1.5 for two reasons: (1) § 2A3.6, and in particular Application Note 3 of that provision, precludes the application of § 4B1.5, and (2) applying § 4B1.5 in determining Joey’s sentence under § 2244(a)(5) when he was also being sentenced under § 2260A violated the principle against double counting under the Guidelines. “In determining whether the district court committed procedural error, we review the district court’s interpretation of the Sentencing Guidelines de novo and its factual findings for clear error.” United States v. Smith, 719 F.3d 1120, 1123 (9th Cir. 2013) (citing United States v. Swank, 676 F.3d 919, 921 (9th Cir. 2012)).

A

Although the Sentencing Guidelines are merely advisory, United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), “a district court should begin all sentencing proceedings by correctly calculating the applicable Guidelines range” because “the Guidelines should be the starting point and the initial benchmark” when imposing a sentence, Gall v. United States, 552 U.S. 38, 49, 128 S.Ct. 586,169 L.Ed.2d 445 (2007).

As a general rule, a sentencing court should “consider all applicable Guidelines provisions in calculating the guidelines range for an offense.” United States v. Neal, 776 F.3d 645, 660 (9th Cir. 2015) (quoting Smith, 719 F.3d at 1123). “Absent an instruction to the contrary, enhancements under Chapter Two, adjustments under Chapter Three, and determinations under Chapter Four are to be applied cumulatively.” U.S.S.G. § 1B1.1 cmt. n.4(B). Accordingly, in calculating the Guidelines sentencing range for an offense, courts are sometimes required to make multiple enhancements, adjustments, or determinations that are “triggered by the same conduct.” Id. As the Guidelines explain, for example, “shooting a police officer during the commission of a robbery may warrant an injury enhancement under § 2B3.1(b)(3) and an official victim adjustment under § 3A1.2, even though the enhancement and the adjustment both are triggered by the shooting of the officer.” Id. From this guidance, we conclude that a court must generally apply all applicable Guidelines provisions, regardless whether the same act triggers multiple provisions.

Consistent with this general rule, which derives from the Guidelines themselves, the Sentencing Commission expressly indicates when Guidelines provisions are not to be applied cumulatively. See, e.g., Smith, 719 F.3d at 1124 (noting that the Guidelines manual “spells out numerous instances in which a particular provision should not be applied to the same conduct as another provision”). Thus, when a defendant is subject to a statutory sentencing enhancement for specified conduct, as Joey is here, the Sentencing Commission provides explicit instructions when it intends to preclude courts from adjusting the defendant’s Guidelines sentencing range on account of the same conduct. For instance, 18 U.S.C. § 924(c) imposes an enhanced sentence on a person for using, carrying, or possessing a firearm in conjunction with the commission of certain other offenses, and the Sentencing Commission directs courts not to “apply any specific offense characteristic for possession, brandishing, use, or discharge of an explosive or firearm when determining the sentence” for the offense underlying a conviction of § 924(c). U.S.S.G. § 2K2.4 cmt. n.4. The Commission has provided similar directions for comparable situations in which only one offense level increase should be applied. See, e.g., id. § 2K2.1 cmt. n.8(A) (forbidding a stolen firearm enhancement where “the base offense level takes into account that the firearm or ammunition was stolen”); id. § 3A1.1 cmt. n.2 (forbidding a vulnerable victim adjustment “if the factor that makes the person a vulnerable victim is incorporated in the offense guideline”). Accordingly, “we have long held that the Sentencing Commission understands double counting” — the idea that the same conduct can sometimes result in multiple Guidelines offense level enhancements or adjustments — “and expressly forbids it where it is not intended.” Smith, 719 F.3d at 1124 (quoting United States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010)) (internal quotation marks omitted).

In light of this understanding of the Sentencing Commission’s approach to the Guidelines, we have routinely upheld the cumulative application of Guidelines provisions over claims of “impermissible double counting” so long as the application was consistent with the relevant Guidelines instructions. See, e.g., id. at 1124-25 & n.5. Although we have “inferred that the Commission would not intend courts to apply a Guidelines provision that would ‘increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines,’ ” id. at 1124 (quoting United States v. Holt, 510 F.3d 1007, 1011 (9th Cir. 2007)), our examination of the Guidelines has consistently established that if “each invocation of the behavior serves a unique purpose under the Guidelines,” then the Commission “authorized and intended” the cumulative application of both provisions, Holt, 510 F.3d at 1011 (internal quotations omitted). See, e.g., United States v. Basa, 817 F.3d 645, 650 (9th Cir. 2016) (affirming the application of two enhancements that “take account of separate offense characteristics” and that were not explicitly non-cumulative); Smith, 719 F.3d at 1124-25 & n.5 (same, and collecting similar cases). Moreover, we have never held that a district court erred in applying an otherwise relevant Guidelines provision merely because the same conduct triggering the Guidelines provision satisfied an element of the offense. See United States v. Williams, 14 F.3d 30, 32 (9th Cir. 1994) (per curiam) (rejecting the argument that impermissible double counting occurs where a Guidelines provision considers a factor that is also an element of the underlying offense because “the proper comparison to determine whether impermissible double-counting occurred is ‘between the applicable guidelines provisions, not between the guidelines provisions and the criminal code’ ”) (quoting United States v. McAninch, 994 F.2d 1380, 1385 (9th Cir. 1993)). Instead, we have reversed district courts for applying “an enhancement that duplicates a necessary element of the underlying conviction,” Basa, 817 F.3d at 650, only where the enhancement has been rendered inapplicable by the Sentencing Commission’s express directive, see, e.g., United States v. Aquino, 242 F.3d 859, 864-65 (9th Cir. 2001) (reversing a district court’s guidelines calculation applying an enhancement that duplicated an element of a § 924(c) conviction, in violation of U.S.S.G. § 2K2.4 cmt. n.2 (1998)).

In short, the focus in an impermissible double counting challenge to a district court’s sentence is on the Sentencing Commission’s intent, and the primary touchstone for discovering that intent is the text of the Guidelines manual.

B

We now consider Joey’s argument that the district court erred in calculating the Guidelines sentencing range due to engaging in impermissible double counting. Because a sentencing court should “consider all applicable Guidelines provisions in calculating the guidelines range for an offense,” Neal, 776 F.3d at 660, “[ajbsent an instruction to the contrary,” U.S.S.G. § 1B1.1 cmt. n.4(B), we first consider whether the Commission has expressly directed courts not to apply § 4B1.5 in calculating the Guidelines sentencing range for an offense under § 2244(a)(5) when the defendant is also convicted under § 2260A.

Joey argues that § 2A3.6 of the Guidelines constitutes such a directive, particularly in view of Application Note 3. See Stinson v. United States, 508 U.S. 36, 38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993) (holding that “commentary in the Guidelines Manual that interprets or explains a guideline” is generally “authoritative”). Section 2A3.6 provides, in pertinent part, “[i]f the defendant was convicted under ... 18 U.S.C. § 2260A, the guideline sen-fence is the term of imprisonment required by statute.” It also provides that “Chapters Three (Adjustments) and Four (Criminal History and Criminal Livelihood) shall not apply to any count of conviction covered by this guideline.” U.S.S.G. § 2A3.6. Application Note 3 to § 2A3.6, in turn, states:

Inapplicability of Chapter ' Two Enhancement, — If a sentence under this guideline is imposed in conjunction with a sentence for an underlying offense, do not apply any specific offense characteristic that is based on the same conduct as the conduct comprising the conviction ’ under 18 U.S.C. § 2250(c) of § 2260A.

Section 2A3.6 is applicable here because the PSIR, as adopted by the district court, calculated Joey’s sentence for the violations of § 2260A under that guideline, which requires the imposition of a consecutive ten-year sentence.

Joey argues that the statement in the Application Note that a court may hot apply “any specific offense characteristic that is based on the same conduct as the conduct comprising the conviction” under § 2260A barred the district court from applying § 4B1.5 to his conviction under § 2244(a)(5). We disagree. For purposes of the Guidelines, “specific offense characteristics” are included in Chapter 2 of the Guidelines and are used to determine the defendant’s offense level. See U.S.S.G. § lBl.l(a)(2). The base offense level for a conviction under § 2244(a)(5) is calculated using § 2A3.4. The specific offense characteristics applicable to § 2244(a)(5) are set forth in § 2A3.4(b). This subsection (which is, in fact, labeled “Specific Offense Characteristics”) directs the court to increase the offense level if a victim was under a specified age, id. §§ 2A3.4(b)(1) — (2), if the victim was in the custody, care, or supervisory control of the defendant, id. § 2A3.4(b)(3), if the offense involved a knowing misrepresentation of a participant’s identity in order to induce sexual contact, id. § 2A3.4(b)(4), or if the victim was enticed over a computer, id. § 2A3.4(b)(5). By contrast, Chapter 4 is used to determine the defendant’s criminal history category and to determine any applicable adjustments for certain repeat offenders. See id. § lBl.l(a)(6). By its terms, § 4B1.5 is not labeled a specific offense characteristic, is not included among the specific offense characteristics for § 2A3.4(b), and therefore is not the sort of provision described in Application Note 3 to § 2A3.6.

The history of § 2A3.6 likewise weighs against Joey’s argument. The Sentencing Commission added § 2A3.6 to the Guidelines in 2011 in response to the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587. U.S.S.G. app. C amend. 701 at 210. In addition to adding § 2A3.6 to address the Adam Walsh Act’s creation of 18 U.S.C. § 2260A, id. app. C amend. 701 at 212, the Sentencing Commission also amended § 4B1.5 to address other “relevant provisions in the Adam Walsh Act,” id. app. C amend. 701 at 210. In implementing the Adam Walsh Act, the Commission included language in § 2A3.6 expressly instructing courts not to apply Chapter 4 when calculating the Guidelines sentencing range for § 2260A convictions, but did not preclude courts from applying § 4B1.5 when calculating the sentencing range for the offense underlying § 2260A. Given that the Commission considered what changes to § 4B1.5 were necessary to implement the Adam Walsh Act, the Commission’s decision not to forbid § 4B1.5’s application to offenses underlying § 2260A convictions, despite considering both §§ 2A3.6 and 4B1.5 at the same time, raises the inference that § 4B1.5 and § 2260A should be applied cumulatively to underlying offenses. Accordingly, we reject Joey’s argument that § 2A3.6, or its Application Note 3, bars the application of § 4B1.5 in calculating Joey’s Guidelines sentencing range for his § 2244(a)(5) convictions.

Indeed, rather than instructing courts not to apply § 4B1.5 to a conviction under § 2244(a)(5) where the defendant also incurs a § 2260A conviction, the Guidelines are better read as requiring such application. Section 5G1.2 provides specific guidance for calculating a sentence where, as here, the sentence is “to be imposed on a count for which the statute (1) specifies a term of imprisonment to be imposed; and (2) requires that such term of imprisonment be imposed to run consecutively to any other term of imprisonment.” Id. § 5G1.2(a). In such a situation (subject to an exception not applicable here), the sentence “shall be determined by that statute and imposed independently” of any other term of imprisonment associated with another offense. Id. Application Note 2(A) to § 5G1.2(a) clarifies that (with an exception not applicable here) “the term of years to be imposed consecutively is the minimum required by the statute of conviction and is independent of the guideline sentence on any other count.” Applied here, § 2260A provides that “[t]he sentence imposed under this section shall be consecutive to any sentence imposed” for the underlying offense of conviction. Therefore, § 5G1.2 requires a district court to determine the Guidelines sentencing range for the § 2244(a)(5) counts independently of the ten-year sentence for the § 2260A offense.

Nor is there any basis to infer that the Commission did not intend courts to apply § 4B1.5 because it would “increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of’ § 2260A. Smith, 719 F.3d at 1124. Section 4B1.5 adjusts a defendant’s offense level to account for the commission of a new sex crime after a prior sex crime conviction, whereas § 2260A punishes the commission of specified felonies involving a minor while being required to register as a sex offender under either federal or state law. Because sex offender registration requirements vary across jurisdictions, a defendant who had a prior sex conviction may not necessarily be subject to such a requirement. See, e.g., Alaska Stat. § 12.63.020(a)(2) (registration obligation expires after 15 years for certain offenders); Ariz. Rev. Stat. § 13-3821(F) (registration obligation expires at age 25 for juvenile offenders); Colo. Rev. Stat. § 16-22-113(1) (offenders may petition for termination of registration obligations after 20 years, 10 years, 5 years, or at completion of the sentence, depending on the severity of the offense). As such, §§ 4B1.5 and 2260A serve distinct penological goals, and there is no reason to infer that the Sentencing Commission did not intend their dual application in situations like Joey’s, particularly given the strong textual inferences previously discussed that support cumulative application.

Because the Guidelines do not contain any instruction that precludes a district court from applying § 4B1.5 in calculating the Guidelines sentencing range for a § 2244(a)(5) conviction where a defendant has also been convicted under § 2260A, but rather instruct district courts to determine the Guidelines sentencing range for the § 2244(a)(5) count independently of § 2260A, the district court did not procedurally err in calculating the applicable Guidelines sentencing range.

AFFIRMED.

      . We dispose of the remainder of Joey’s challenges to his conviction and sentence in an unpublished memorandum disposition filed concurrently with this opinion.

      . The jury appears to have disbelieved the victims’ testimony in some respects, as evidenced by two not-guilty verdicts and two failures to render verdicts.

      . The indictment alleged that this conduct also violated 18 U.S.C. §§ 1153 (giving federal courts jurisdiction over certain crimes committed by Indians) and 2246(3) (defining the term "sexual contact”).

      . 18 U.S.C. § 2260A provides:
      Whoever, being required by Federal or other law to register as a sex offender, commits a felony offense involving a minor under section 1201, 1466A, 1470, 1591, 2241, 2242, 2243, 2244, 2245, 2251, 2251A, 2260, 2421, 2422, 2423, or 2425, shall be sentenced to a term of imprisonment of 10 years in addition to the imprisonment imposed for the offense under that provision. The sentence imposed under this section shall be consecutive to any sentence imposed for the offense under that provision.

      . The jury did not return a verdict on Counts 2 and 6 and acquitted on Counts 4 and 8.

      . Unless otherwise indicated, all citations to the Guidelines are to the 2014 manual, which applied at the time of Joey’s sentencing. See Johnson v. Gomez, 92 F.3d 964, 968 (9th Cir. 1996).

      . U.S.S.G. § 4B1.5(a)(2) provides: “The criminal history category shall be the greater of: (A) the criminal history category determined under Chapter Four, Part A (Criminal History); or (B) criminal history Category V.”

      . As other courts have recognized, "double counting” is an unfortunate misnomer that can imply an error in process or arithmetic. See United States v. Fiume, 708 F.3d 59, 61 (1st Cir. 2013). In practice, however, a double counting error is nothing more than a garden variety error of textual interpretation — a failure ' to ascertain correctly the Sentencing Commission’s directive. See Smith, 719 F.3d at 1124 (observing that the Ninth Circuit's double counting jurisprudence is an exercise in inferring the Sentencing Commission's intent). As with the interpretation of legal texts generally, our search for the Sentencing Commission’s intent will most often begin and end "with the text and structure” of the Guidelines. Cf. Alexander v. Sandoval, 532 U.S. 275, 288, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001).

      . While our conclusion that the district court did not make any procedural error in calculating the Guidelines sentencing range does not foreclose the argument that application of both §§ 4B1.5 and 2260A produces a recommended sentence that is substantively unreasonable and overstates a defendant's culpability, Joey has not specifically and distinctly raised a substantive unreasonableness claim in his opening brief, and we therefore do not consider it. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).