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    FEDERAL TRADE COMMISSION, Plaintiff-Appellee, v. AT & T MOBILITY LLC, a limited liability company, Defendant-Appellant.
    No. 15-16585
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 17, 2016 San Francisco, California
    Filed August 29, 2016

      Michael K. Kellogg (argued) and Mark C. Hansen; Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C.; David L. Anderson, Sidley Austin LLP, San Francisco, California; for Defen-danh-Appellant.
    Joel Marcus (argued), Director of Litigation; Matthew M. Hoffman and David L. Sieradzki, Attorneys; David C. Shonka, Acting General Counsel; Federal Trade Commission, Washington, D.C.; Evan Rose, Matthew D. Gold, and Linda K. Badger, Federal- Trade Commission, San Francisco, California; for Plaintiff-Appel-lee.

      Before: RICHARD R. CLIFTON, and SANDRA S. IKUTA, Circuit Judges, and WILLIAM Q. HAYES, District Judge.

      The Honorable William Q. Hayes, United States District Judge for the Southern District of California, sitting by designation.

   OPINION

CLIFTON, Circuit Judge:

Through a practice referred to by the Federal Trade Commission as “data throttling,” AT & T Mobility LLC intentionally reduces the data speed of its customers with unlimited mobile data plans. A throttled customer receives data at a substantially reduced speed during a given billing cycle once the customer’s data usage during that billing cycle exceeds a threshold determined by AT & T. Unlimited data plan customers are throttled without regard to real-time network congestion.

The FTC filed a complaint against AT & T under section 5 of the FTC Act, 15 U.S.C. § 45(a), taking issue with the adequacy of AT & T’s disclosures regarding its data throttling program. The central issue before us is whether AT & T is covered by section 5, which exempts, among others, “common carriers subject to the Acts to regulate commerce.” We conclude that AT & T is excluded from the coverage of section 5, and that the FTC’s claims cannot be maintained.

I.

AT & T offers mobile voice service and mobile data service to its customers. Mobile data service allows customers with smartphones to access the internet using AT & T’s mobile data network. Customers with mobile data service can, among other things, send and receive email, use GPS navigation, and stream videos.

In 2007, AT & T became the exclusive service provider for the Apple iPhone in the United States. At that time, AT & T began offering iPhone customers an “unlimited” mobile data plan, allowing users access to an unlimited amount of data for a fixed monthly rate. Starting in June 2010, however, AT & T stopped offering unlimited mobile data plans to new customers. Since then, it has required new customers to select one of various “tiered” data plans, under which a customer has a set data allowance per month for a fixed monthly rate and incurs additional charges for any data usage in excess of the set data allowance. Customers with preexisting unlimited data plans were grandfathered into the new system to avoid encouraging them to switch to a different service provider.

In July 2011, AT & T decided to begin reducing the speed at which unlimited data plan users receive data on their smart-phones. Under AT & T’s data throttling program, unlimited data plan customers are throttled for the remainder of a billing cycle once their data usage during that cycle exceeds a certain threshold. Although AT & T attempts to justify this program as necessary to prevent harm to the network, AT & T’s throttling program is not actually tethered to real-time network congestion. Instead, customers are subject to throttling even if AT & T’s network is capable of carrying the customers’ data. AT & T does not regularly throttle its tiered plan customers, no matter how much data those customers use.

The FTC contends that AT & T failed to adequately inform its customers of its data throttling program. It asserts two claims against AT & T under section 5 of the FTC Act, pursuant to which the FTC may “prevent persons, partnerships, or corporations, except ... common carriers subject to the Acts to regulate commerce ... from using ... unfair or deceptive acts or practices in or affecting commerce.” 15 U.S.C. § 45(a)(2).

In Count I, the FTC asserts that AT & T’s imposition of data speed restrictions on customers with contracts “advertised as providing access to unlimited mobile data” and without terms “provid[ing] that [AT & T] may modify, diminish, or impair the service of customers who use more than a specified amount of data” is an unfair act or practice. In Count II, the FTC asserts that AT & T’s failure to adequately disclose that it “imposes significant and material data speed restrictions on unlimited mobile data plan customers who use more than a fixed amount of data in a given billing cycle” is a deceptive act or practice.

AT & T filed a motion to dismiss the FTC’s Complaint, contending that it is immune from liability under section 5 because of its status as a common carrier. The FTC opposed the motion, arguing that AT & T is not exempt from liability for violations in connection with its mobile data service, a non-common carrier service, because the common carrier exemption in section 5 protects entities with the status of common carrier only to the extent that the service in question is a common carrier service.

While the motion to dismiss was pending, the Federal Communications Commission reclassified mobile data service from a non-common carrier service to a common carrier service. In response, AT & T argued to the district court that the FCC’s Reclassification Order, even though prospective in application, stripped the FTC of authority to maintain its claims against AT & T, even as to past violations.

It is undisputed that AT & T is and was a “common carrier! ] subject to the Acts to regulate commerce” for a substantial part of its activity, but prior to the FCC’s Reclassification Order, its mobile date service was not identified and regulated by the FCC as a common carrier service.

The district court denied AT & T’s motion to dismiss. See FTC v. AT & T Mobility LLC, 87 F.Supp.3d 1087 (N.D. Cal. 2015). It rejected AT & T’s view of the common carrier exemption, concluding that it applies “only where the entity has the status of common carrier and is actually engaging in common carrier activity.” Id. at 1104. The district court also rejected AT & T’s argument that the FCC’s Reclassification Order stripped the FTC of authority to pursue its claims. Id. at 1102-04. According to the district court, the Reclassification Order had no effect on the FTC’s authority over AT & T’s past alleged misconduct. Id. at 1104.

AT & T requested that the district court certify its order denying the motion to dismiss for immediate appeal pursuant to 28 U.S.C. § 1292(b). The district court agreed but did not stay the proceedings before it. Following the district court’s certification order, AT & T filed an unopposed petition for permission to appeal, which this court granted.

II.

We review a district court’s ruling on a motion to dismiss de novo. Colony Cove Properties, LLC v. City of Carson, 640 F.3d 948, 955 (9th Cir. 2011).

A.

Section 5 of the FTC Act, on which the FTC relies, contains an exemption for “common carriers subject to the Acts to regulate commerce.” 15 U.S.C. § 45(a)(2). Section 5 states:

The Commission is hereby empowered and directed to prevent persons, partnerships, or corporations, except banks, savings and loan institutions described in section 57a(f)(3) of this title, Federal credit unions described in section 57a(f)(4) of this title, common carriers subject to the Acts to regulate commerce, air carriers and foreign air carriers subject to part A of subtitle VII of Title 49, and persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921, as amended [7 U.S.C.A. § 181 et seq.], except as provided in section 406(b) of said Act [7 U.S.C.A. § 227(b) ], from using unfair methods of competition in or affecting commerce and unfair or deceptive acts or practices in or affecting commerce.

Id. “Common carrier” is not defined in the FTC Act. “Acts to regulate commerce” are defined as the Interstate Commerce Act of 1887, the Communications Act of 1934, and “all Acts amendatory thereof and supplementary thereto.” 15 U.S.C. § 44. When section 5 was enacted, only the Interstate Commerce Act was included within the term “Acts to regulate commerce.” The Communications Act was added to the definition of “Acts to regulate commerce” after its passage. See Wheeler-Lea Act § 2, 52 Stat. Ill (1938).

The issue presented to us is whether the common carrier exemption in section 5 is status-based, such that an entity is exempt from regulation as long as it has the status of a common carrier under the “Acts to regulate commerce,” or is activity-based, such that an entity with the status of a common carrier is exempt only when the activity the FTC is attempting to regulate is a common carrier activity.

AT & T advocates a status-based interpretation of the exemption, arguing that its status as a common carrier under the Communications Act shields it from liability under section 5 even as to non-common carrier activity. According to AT & T, the common carrier exemption bars the FTC from in any way regulating an entity with the status of a common carrier under section 5, even if the common carrier engages in non-common carrier activity.

The FTC, on the other hand, contends that the exemption should be read as activity-based, arguing that an entity is shielded from section 5 liability only to the extent it has the status of a common carrier and the activity at issue is a common carrier activity. According to the FTC, AT & T is not exempt from section 5 liability in this case because mobile data service was not a common carrier activity at the time of AT & T’s alleged violations.

We conclude, based on the language and structure of the FTC Act, that the common carrier exception is a status-based exemption and that AT & T, as a common carrier, is not covered by section 5.

In interpreting a statute, we first consider the language of the statute itself. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 2009). The plain language of the common carrier exemption casts the exemption in terms of status, contrary to the FTC’s position. The phrase “common carriers subject to the Acts to regulate commerce,”-15 U.S.C. § 45(a)(2), does not contain any language suggesting that the activities of a common carrier affect the exemption’s application. A literal reading of the words Congress selected simply does not comport with an activity-based approach. See BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004) (“The preeminent canon of statutory interpretation requires us to ‘presume that the legislature says in a statute what it means and means in a statute what it says there.’ ” (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)) (brackets omitted)).

The common carrier exemption is surrounded by exemptions for “banks,” “savings and loan institutions,” and “Federal credit unions,” all of which the FTC acknowledges are status-based exemptions even though phrased in similar terms as the common carrier exemption it contends is activity-based. The fact that surrounding exemptions are defined in terms of status suggests that “common carriers subject to the Acts to regulate commerce” also carves out a group of entities based on status.

In adopting the FTC’s view of the common carrier exemption, the district court concluded that the term “common carrier” was understood to encompass both a status and an activity prior to enactment of the FTC Act. It based this conclusion on a number of Supreme Court cases identifying a regulatory distinction for common carriers between common carrier and non-common carrier activities. In Santa Fe, Prescott & Phoenix Railway Company v. Grant Brothers Construction Company, 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787 (1913), for example, the Court noted “the established doctrine ... that common carriers cannot secure immunity from liability for their negligence by any sort of stipulation,” but explained that “this rule has no application when a railroad company is acting outside the performance of its duty as a common carrier.” Id. at 184, 185, 33 S.Ct. 474. Likewise, in Railroad Company v. Lockwood, 84 U.S. (17 Wall.) 357, 21 L.Ed. 627 (1873), the Court- stated that an entity is a common carrier when it carries articles as part of its “regularly established business,” but may “become a private carrier, or a bailee for hire, when ... [it] undertakes to carry something which it is not [its] business to carry.” Id. at 377. Prior to the enactment of the FTC Act, the Supreme Court also recognized that common carriers fell outside the scope of the Interstate Commerce Act to the extent they engaged in non-common carrier activities. See Kansas City S. Ry. Co. v. United States, 282 U.S. 760, 764, 51 S.Ct. 304, 75 L.Ed. 684 (1931) (“There is no doubt that common carriers, subject to the Interstate Commerce Act, may have activities which lie outside the performance of their duties as common carriers and are not subject to the provisions of the act.”); Interstate Commerce Comm’n v. Goodrich Transit Co., 224 U.S. 194, 211, 32 S.Ct. 436, 56 L.Ed. 729 (1912) (noting that non-common carrier activities are not within the Interstate Commerce Commission’s jurisdiction).

While these cases recognize a distinction between common carrier and non-common carrier activities in the regulation of entities with common carrier status, they do not show that when Congress used the term “common carrier” in the FTC Act, it could only have meant “common carrier to the extent engaged in common carrier activity.” There is no indication that the regulatory distinction in the cases the district court cited is implicit in Congress’s phrasing of the common carrier exemption.

Moreover, awareness of the potential duality of common carriers pre-FTC Act may actually cut against the FTC’s argument. Given the “presumfption] that Congress is aware of ‘past judicial interpretations and practices’ when it legislates,” Bateman v. Am. Multi-Cinema, Inc., 623 F.3d 708, 720 (9th Cir. 2010) (quoting In re Egebjerg, 574 F.3d 1045, 1050 (9th Cir. 2009)), it would be expected that Congress would have been more precise in its language if it intended the FTC to retain regulatory authority over a common carrier’s non-common carrier activity.

A status-based interpretation of the common carrier exemption also derives significant support from the language of the Packers and Stockyards exemption. Section 5 of the FTC Act exempts “persons, partnerships, or corporations insofar as they are subject to the Packers and Stockyards Act, 1921.” 15 U.S.C. § 45(a)(2) (emphasis added). The “insofar as” language, clearly indicative of an activity-based approach, undermines the plausibility of the FTC’s argument that the exemption for “common carriers subject to the Acts to regulate commerce” requires an activity-based interpretation. The language of the common carrier exemption meaningfully varies from that of the Packers and Stockyards exemption. See S.E.C. v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (“[T]he use of different words or terms within a statute demonstrates that Congress intended to convey a different meaning for those words. ... Congress’s explicit decision to use one word over another in drafting a statute is material.... It is a decision that is imbued with legal significance and should not be presumed to be random or devoid of meaning.”).

B.

The FTC argues that the “insofar as” language in the Packers and Stockyards exemption in section 5 of the FTC Act, which on its face clearly indicates Congress’s intent to adopt an activity-based approach for that exemption (and therefore, by contrast, indicates that Congress intended to retain a status-based interpretation of the common carrier exemption) actually does not indicate such an intent. The FTC bases- this argument on the legislative history of the Packers and Stockyards exemption, but this argument is unpersuasive. To the contrary, our understanding of the statute based on its plain language is bolstered by examination of the statutory history of the Packers and Stockyards exemption and of the FTC’s own decisions prior to an amendment of that exemption.

As originally enacted, “persons, partnerships, orcorporations subject to the Packers and Stockyards Act” were exempted from liability. Wheeler-Lea Act § 3, 52 Stat. 111, 111-12 (1938) (emphasis added). In 1958, Congress amended the exemption to contain the “insofar as” language present today. See Pub. L. No. 85-909, § 3, 72 Stat. 1749, 1750 (1958). The FTC contends that the Packers and Stockyards exemption was always activity-based and that the amendment was merely a part of a Congressional effort to clarify the jurisdictional responsibilities of the FTC versus the Secretary of Agriculture. It is unnecessary to rely on legislative history to construe unambiguous statutory language, see Miranda v. Anchondo, 684 F.3d 844, 849 (9th Cir. 2012) (“If the statutory language is unambiguous and the statutory scheme is coherent and consistent, judicial inquiry must cease.” (quoting In re Ferrell, 539 F.3d 1186, 1190 n.10 (9th Cir. 2008))). But even considering the FTC’s arguments, the legislative history does not bear out the FTC’s claims. The relevant House Report stated that the bill “deals with a reassignment of jurisdiction over unfair trade practices.” H.R. Rep. No. 85-1507, at 3. If the amendment had merely been a clarification of the FTC’s authority, it is unlikely that the amendment would have been characterized as a jurisdictional “reassignment.”

The House Report also suggested a status-based understanding of existing law, stating that “[ujnder present law, the Secretary of Agriculture has exclusive jurisdiction over all unfair trade practices engaged in by packers.” Id. at 3. The Report noted that “the Secretary has jurisdiction over unfair trade practices in the sale by packers of many articles (such as sporting goods) which are either not at all or only remotely related to agricultural products,” while “the Federal Trade Commission does not have jurisdiction over many of the large national grocery chains by reason of their ownership of a 20 percent or more interest in packinghouses.” Id. at 3, 4. If the Packers and Stockyards exemption was truly activity-based prior to its amendment, these statements would have made little sense.

The FTC points to Food Fair Stores, Inc., 54 F.T.C. 392 (1957), in support of its argument that the Packers and Stockyards Act and the corresponding exemption in the FTC Act were understood to be activity-based prior to the 1958 amendment, such that the 1958 amendment is of no consequence to its position. Although the FTC stated in Food Fair Stores that “Congress has not removed all activities of packers from the jurisdiction of the Federal Trade Commission, as has been done in the Federal Trade Commission Act in the case of banks,” the decision nonetheless acknowledged that the FTC lacked jurisdiction over the non-packer activities of entities subject to the Packers and Stockyards Act. The FTC stated:

It seems clear from the language of the [Packers and Stockyards] Act and from the legislative history that Congress designedly made the definition of packer a very broad one. The general purpose was to regulate certain practices of the meat packing business in all its ramifications regardless of its organization or unrelated activities. About the only persons Congress seemed to exempt were those having no packer affiliations. Thus, an independent tanner would not be a packer, merely because of being in the tannery business. Nor would an independent marketer, simply because he marketed meats, meat food products and livestock products, etc. But if either engaged in certain activities traditionally connected with the packing business, or had a designated degree of affiliation therewith, they were included in the definition of packer.

Id. at 405. The FTC rejected the argument that “the jurisdiction of the Secretary of Agriculture does not extend to those products not associated with [an entity’s] packing business” in concluding that the grocery chain at issue fell within the definition of “packer” and was therefore subject to the Secretary of Agriculture’s jurisdiction. Id. at 406, 408.

In reaching that conclusion, the FTC cited its own decision from one year earlier, Armour & Co., 52 F.T.C. 1028 (1956), in which it dismissed a complaint regarding a packer’s advertising of oleomargarine. In concluding that the Secretary of Agriculture had jurisdiction and the FTC did not, the FTC traced the relevant legislative history of the Packers and Stockyards Act, noting that it reflected Congress’s intention to encompass a packer’s unrelated activities within its general regulation of packers. Id. at 1034-36. The FTC’s opinions prior to amendment of the Packers and Stockyards exemption in 1958 appear more consistent with our understanding of the statutory text than with the FTC’s current arguments.

The FTC also fails to adequately explain what motivation Congress would have had to amend the Packers and Stockyards exemption in 1958 if that exemption was at that time already understood to be activity-based. The FTC links the amendment to Food Fair Stores, but it makes little sense for Congress to have amended the Packers and Stockyards Act and the FTC Act exemption if, as the FTC argues, Food Fair Stores merely reaffirmed that the FTC retained some jurisdiction over packers. See Johnson v. Consumerinfo.com, Inc., 745 F.3d 1019, 1022 (9th Cir. 2014) (“When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” (quoting Stone v. INS, 514 U.S. 386, 397, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995))). The more likely explanation is that Food Fair Stores took a status-based approach to the Packers and Stockyards Act that Congress squarely addressed in 1958 by “reassigning]” jurisdiction over unfair trade practices between the FTC and the Secretary of Agriculture. H.R. Rep. No 85-1507, at 3.

The district court relied on Crosse & Blackwell Co. v. FTC, 262 F.2d 600 (4th Cir. 1959), to reject AT & T’s argument regarding the significance of the 1958 amendment. In Crosse, the Fourth Circuit concluded that Crosse & Blackwell, a can-ner of soups and similar products, was not exempt from the FTC Act simply because products responsible for something less than three per cent of its annual sales contained meat, thus rejecting the argument that the company’s processing of that meat made it wholly subject to regulation by the Secretary of Agriculture. It reached that result by interpreting the pre-1958 Packers and Stockyards Act and FTC Act exemption to be activity-based, stating that “it was never intended that relatively inconsequential activity which might be classified as meat packing should insulate all of the other activities of a corporation from the reach of the Federal Trade Commission.” Id. at 605. The opinion explicitly acknowledged that it was rejecting “a literal interpretation” of the FTC Act exemption, stating that it “must be laid aside for it is ‘plainly at variance with the policy of the legislation as a whole.’ ” Id. (quoting Ozawa v. United States, 260 U.S. 178, 194, 43 S.Ct. 65, 67 L.Ed. 199 (1922)). Instead, the court relied on its view of Congress’s “apparent purpose and intention” in enacting the Packers and Stockyards Act, namely to regulate “the businesses of the stockyards and of the packers as those industries were known and understood at the time.” Id. at 604, 606. It observed that Congress, when it enacted the Packers and Stockyards Act, had not anticipated that entities would acquire packing businesses in order to wholly escape regulation by the FTC. Id. at 604-05. According to the Fourth Circuit, Congress’s attention was focused solely on the businesses of packers and stockyards as such, and it would not have made sense for Congress to “saddle[ ] [the Secretary of Agriculture] with responsibility in areas far beyond the bounds of his concern.” Id. at 606.

Although Crosse supports the FTC’s interpretation of the pre-1958 Packers and Stockyards exemption, it does not do so persuasively. For one thing, the facts are obviously dissimilar. AT & T’s status as a common carrier is not based on its acquisition of some minor division unrelated to the company’s core activities that generates a tiny fraction of its revenue. More broadly, the Crosse decision seems to be based on little more than the court’s own view of the most effective regulatory regime in explicit disregard of the words of the statute. But the text of a statute cannot be disregarded in that manner. “It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.” Lewis v. City of Chicago, 560 U.S. 205, 215, 130 S.Ct. 2191, 176 L.Ed.2d 967 (2010). That is a job for Congress, not the courts. In addition, the legislative history relied upon in the Crosse opinion is limited to the origin of the Packers and Stockyards Act of 1921, with no attention to the history or language of the more directly relevant statute, section 5 of the FTC Act. Both the relevant text and a more careful review of that statute’s legislative history demonstrate that when that statute exempted entities “subject to” the Packers and Stockyards Act, as it did prior to 1958, the Packers and Stockyards exemption was status-based. When it was amended in that year to exempt entities “insofar as they are subject” to the Packers and Stockyards Act, the exemption became activity-based. The. other exemptions in section 5, including the exemption for common carriers, were not altered, however, and they remained status-based, then and now.

In denying AT & T’s motion to dismiss, the district court relied on legislative history for the more pertinent statute, the FTC Act, citing a statement made during the debate over the House bill that later became the FTC Act. Representative Stevens stated:

I have no doubt that there are many financial institutions of that sort in this country which are engaged in some industrial pursuit that would come within the scope of this act.... They ought to be under the jurisdiction of this commission in order to protect the public, in order that all of their public operations should be supervised, just the same as where a railroad company engages in work outside of that of a public carrier.... [E]very corporation engaged in commerce except common carriers, and even as to them I do not know but that we include their operations outside of public carriage regulated by the interstate-commerce acts.

51 Cong. Rec. 8996 (May 21,1914).

The FTC contends that Representative Stevens “plainly envisioned an activity-based reading of the exception,” but his statement was equivocal on its face. What he actually said was “I do not know,” reflecting possible uncertainty in Representative Stevens’s mind as to the actual scope of the bill. Moreover, even if Representative Stevens favored an activity-based reading of the common carrier exemption, his statement represented the understanding of only one member of Congress, not a powerful or persuasive indicator of Congress’s intent. See New Eng. Power Co. v. New Hampshire, 455 U.S. 331, 342, 102 S.Ct. 1096, 71 L.Ed.2d 188 (1982) (“Reliance on such isolated fragments of legislative history in divining the intent of Congress is an exercise fraught with hazards,, and ‘a step to be taken cautiously.’ ” (quoting Piper v. Chris-Craft Indus., Inc., 430 U.S. 1, 26, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977))). The FTC does not cite to any other portion of the FTC Act’s legislative history to support its position.

C.

The district court also concluded that the FTC’s interpretation, though not entitled to Chevron deference, was entitled to some deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). Under Skidmore, nonbinding agency opinions may be entitled to deference, with “[t]he weight of such a judgment in a particular case ... dependent] upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Id. at 140, 65 S.Ct. 161.

It is true, as the district court noted, that the FTC has in recent years interpreted the common carrier exemption as activity-based. See e.g., FTC-FCC Consumer Protection Memorandum of Understanding, at 2 (Nov. 16, 2015); Broadband Connectivity Competition Policy, FTC Staff Report, at 38 (June 2007); Prepared Statement of the Fed. Trade Comm’n, 2003 WL 21353573, at *19 (2003); FTC Reau-thorization, Hearing Before the Subcommittee on Consumer Affairs, Foreign Commerce and Tourism, S. Hrg. 107-1147, at 28 (2002) (statement of Hon. Sheila F. Anthony, FTC). Under such circumstances, Skidmore deference may be appropriate. We conclude, however, that even if the agency’s interpretation is entitled to some deference under Skidmore, such deference is insufficient to overcome the factors that point strongly in favor of AT & T’s position. Given the language of the common carrier exemption and the structure of the FTC Act, we are not persuaded by the FTC’s interpretation.

Because we conclude that the common carrier exemption is a status-based exemption that excludes AT & T from section 5’s coverage, we need not address AT & T’s remaining arguments regarding overlapping regulation and the effect of the FCC’s Reclassification Order.

III.

The common carrier exemption in section 5 of the FTC Act carves out a group of entities based on their status as common carriers. Those entities are not covered by section 5 even as to non-common carrier activities. Because AT & T was a common carrier, it cannot be liable for the violations alleged by the FTC. The district court’s denial of AT & T’s motion to dismiss is reversed, and the case is remanded for entry of an order of dismissal.

REVERSED AND REMANDED.

      . The facts presented here are those alleged by the FTC in its Complaint. We will refer to the practice by the FTC's term, data throttling.

      . This classification was recently upheld by the D.C. Circuit in U.S. Telecom Ass’n v. FCC, 825 F.3d 674 (D.C. Cir. 2016).

      . The FCC has also taken issue with AT & T's data throttling program. On June 17, 2015, it issued a Notice of Apparent Liability, finding that AT & T "apparently willfully and repeatedly violated the [FCC’s] Open Internet Transparency Rule by: (1) using the mislead■ing and inaccurate term ‘unlimited’ to label a data plan that was in fact subject to prolonged speed reductions after a customer used a set amount of data; and (2) failing to disclose the express speed reductions that it applied to 'unlimited' data plan customers once they hit a specified data threshold.” See In the Matter of AT & T Mobility, LLC, 30 F.C.C. Rcd. 6613 (2015).

      . AT & T brought its motion pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, stating that the issue before the district court was "[wjhether th[e] Court possesses subject-matter jurisdiction over the FTC’s complaint, notwithstanding the fact that 15 U.S.C. § 45(a)(2) deprives the FTC of regulatory jurisdiction over 'common carriers subject to the Acts to regulate commerce.' ” AT & T’s framing of its motion is incorrect. The FTC’s statutory authority to bring claims against AT & T has no bearing on the district court’s jurisdiction to consider the FTC's Complaint. See United States v. Alisal Water Corp., 431 F.3d 643, 650 (9th Cir. 2005). The district court had jurisdiction over the FTC's claims even if the FTC lacked the statutory authority to bring those claims. AT & T’s motion, in other words, raises a Rule 12(b)(6) issue, not a Rule 12(b)(1) issue.

      . The FTC has not argued that Chevron deference is appropriate in this case. The FTC explicitly disclaimed any reliance on Chevron before the district court. See AT & T Mobility LLC, 87 F.Supp.3d at 1101.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Keli’i AKINA; Kealii Makekau; Joseph Kent; Yoshimasa Sean Mitsui; Pedro Kana’e Gapero; Melissa Leina’ala Moniz, Plaintiffs-Appellants, v. State of HAWAII; David Y. Ige, Governor; Robert K. Lindsey, Jr., Chairperson, Board of Trustees, Office of Hawaiian Affairs, in his official capacity; Colette Y. Machado; Peter Apo; Haunani Apoliona; Rowena M.N. Akana; John D. Waihe’e, IV; Carmen Hulu Lindsey; Dan Ahuna; Leina’ala Ahu Isa, Trustees, Office of Hawaiian Affairs, in their official capacities; Kamana’opono Crabbe, Chief Executive Officer, Office of Hawaiian Affairs, in his official Capacity; John D. Waihe’e, III, Chairman, Native Hawaiian Roll Commission, in his official Capacity; Na’alehu Anthony; Lei Kihoi; Robin Danner; Mahealani Wendt, Commissioners, Native Hawaiian Roll Commission, in their official capacities; Clyde W. Namu’o, Executive Director, Native Hawaiian Roll Commission, in his official capacity; The Akamai Foundation; The Na’i Aupuni Foundation; Doe Defendants, 1-50, Defendants-Appellees. Keli’i Akina; Kealii Makekau; Joseph Kent; Yoshimasa Sean Mitsui; Pedro Kana’e Gapero; Melissa Leina’ala Moniz, Plaintiffs, v. State of Hawaii; David Y. Ige, Governor; Robert K. Lindsey, Jr., Chairperson, Board of Trustees, Office of Hawaiian Affairs, in his official capacity; Colette Y. Machado; Peter Apo; Haunani Apoliona; Rowena M.N. Akana; John D. Waihe’e, IV; Carmen Hulu Lindsey; Dan Ahuna; Leina’ala Ahu Isa, Trustees, Office of Hawaiian Affairs, in their official capacities; Kamana’opono Crabbe, Chief Executive Officer, Office of Hawaiian Affairs, in his official Capacity; John D. Waihe’e, III, Chairman, Native Hawaiian Roll Commission, in his official Capacity; Na’alehu Anthony; Lei Kihoi; Robin Danner; Mahealani Wendt, Commissioners, Native Hawaiian Roll Commission, in their official capacities; Clyde W. Namu’o, Executive Director, Native Hawaiian Roll Commission, in his official capacity; The Akamai Foundation; The Na’i Aupuni Foundation, Defendants-Appellees, v. Samuel L. Kealoha, Jr.; Virgil E. Day; Josiah L. Hoohuli; Patrick L. Kahawaiolaa; Melvin Hoomanawanui, Proposed Intervenors, Movants-Appellants.
    No. 15-17453, No. 15-17134
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted June 17, 2016 Honolulu, Hawaii
    Filed August 29, 2016

      Robert D. Popper (argued), Paul J. Or-fanedes, Lauren M. Burke, and Chris Fe-deli, Judicial Watch, Inc., Washington, D.C.; Michael A. Lilly, Ning Lilly & Jones, Honolulu, Hawaii; H. Christopher Coates, Law Offices of H. Christopher Coates, Charleston, South Carolina; for Plaintiffs-Appellants.
    Kannon K. Shanmugam (argued), Ellen E. Oberwetter, Eli S. Schlam, and Masha G. Hansford, Williams & Connolly LLP, Washington, D.C.; Robert G. Klein, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawaii; for Defendants-Appellees Robert K. Lindsey, Jr., Collette Y. Machado, Peter Apo, Haunani Apoliona, Rowena Akana, John D. Waihe’e IV, Carmen Hulu Lindsey, Dan Ahuna, Leinaala Ahu Isa, and Kamana’opono Crabbe.
    Donna H. Kalama (argued), Girard D. Lau, and Robert T. Nakatsuji, Deputy Attorneys General; Douglas S. Chin, Attorney General; Department of the Attorney General, Honolulu, Hawaii; for Defendants-Appellees State of Hawaii, David Y. Ige, John D. Waihe’e III, Na’alehu Anthony, Lei Kihoi, Robin Danner, Mahealani Wendt, and Clyde W. Namu’o.
    David J. Minkin (argued), Troy J.H. An-drade, and Jessica M. Wan, McCorriston Miller Mukai MacKinnon LLP, Honolulu, Hawaii; for Defendant-Appellee The Na’i Aupuni Foundation.
    William Meheula, Nadine Y. Ando, and Natasha L.N. Baldauf, Sullivan Meheula Lee LLLP, Honolulu, Hawaii, for Defendants-Appellees The Na’i Aupuni Foundation and The Akamai Foundation.
    Walter R. Schoettle (argued), Honolulu, Hawaii, for Movants-Appellants.
    Ilya Shapiro, Cato Institute, Washington, D.C.; Noel H. Johnson, Kaylan L. Phillips, and Joseph A. Vanderhulst, Public Interest Legal Foundation, Plainfield, Indiana; for Amici Curiae American Civil Rights Union and Cato Institute.
    Sam Hirsch, R. Justin Smith, Matthew R. Oakes, and Robert P. Stockman, Attorneys; John C. Cruden, Assistant Attorney General; Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Jody A. Cummings, Scott Keep, Barbara N. Coen, and Daniel D. Lewerenz; Hilary C. Tompkins, Solicitor; Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Amicus Curiae United States.
    Before: SIDNEY R.-THOMAS, Chief Judge, and CONSUELO M. CALLAHAN and MARY H. MURGUIA, Circuit Judges.
   OPINION

PER CURIAM:

These appeals concern recent efforts by a group of Native Hawaiians to establish their own government. The plaintiffs are Hawaii residents who challenge that process. They appeal the district court’s order denying their request for a preliminary injunction to stop activities related to the drafting and ratification of self-governance documents. Separately, another group of Hawaii residents appeals the district court’s denial of their motion to intervene in the plaintiffs’ lawsuit. For the reasons that follow, we dismiss the plaintiffs’ appeal of the preliminary injunction order as moot, and we affirm the district court’s denial of the motion to intervene.

I.

In 2011, the Hawaii Legislature approved measures “to provide for and to implement the recognition of the Native Hawaiian people by means and methods that will facilitate their self-governance.” Haw. Rev. Stat. § 10H-2. The legislation contemplated that Native Hawaiians may “independently” host a convention “for the purpose of organizing themselves.” Id. § 10H-5. The legislation also established a commission to maintain “a roll of qualified Native Hawaiians” who are descendants of the indigenous peoples who founded the Hawaiian nation. Id. § 10H-3.

Na’i Aupuni, one of the defendants in this case, was a Hawaiian non-profit corporation that supported those Native Hawaiian self-governance efforts. In 2015, Na’i .Aupuni proposed holding a constitutional convention or gathering, termed an ’Aha, to discuss and draft self-governance documents, such as a constitution. Na’i Aupuni requested and received grant funds from a state agency, the Office of Hawaiian Affairs (OHA), for the “election of delegates, election and referendum monitoring, a governance ’Aha, and a referendum to ratify any recommendation of the delegates arising out of the ’Aha.” To select delegates for the convention, the organization scheduled a vote-by-mail election and limited the pool of candidates and voters to Native Hawaiians who appeared on the roll maintained by the state commission.

The delegate election was scheduled for November 1 through November 30, 2015. The elected delegates would then attend the constitutional convention to discuss forming a government, and to possibly draft a constitution. Any proposed constitution would then be subject to a ratification vote, with the universe of voters again limited to Native Hawaiians included on the roll maintained by the state commission. At the end of the process, any resulting government would lack an official legal status until it was recognized by the state or federal government.

In August 2015, three months before the planned delegate election, the plaintiffs sued the State of Hawaii, various state government officers and agencies, Na’i Au-puni, and another non-profit organization that was a party to the agreement that provided state funds for Na’i Aupuni’s election efforts. Central to the lawsuit was the contention that the delegate election and any election to ratify a constitution were unconstitutional because the state was intertwined in the process and had limited participation based on Hawaiian ancestry. The complaint specifically alleged various violations of the United States Constitution and Voting Rights Act arising from the race-based and viewpoint-based restrictions on voting and candidate eligibility. Among the requested relief, the plaintiffs sought an injunction to prevent the use of the contested roll of Native Hawaiians and “the calling, holding, or certifying of any election utilizing the Roll.” The complaint further asked the court to “enjoin[ ] the defendants from requiring prospective applicants for any voter roll to” make any viewpoint-based declarations or verify their ancestry.

Approximately two weeks after filing the complaint, the plaintiffs moved for a preliminary injunction to “prevent[] Defendant’s [sic] from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiians.” A month later, on September 25, 2015, a separate group of Hawaii residents moved to intervene in the lawsuit to challenge the definition of “Native Hawaiian” adopted by Na’i Aupuni and the 2011 state legislation. The residents also sought to recover state trust funds — designated to benefit Native Hawaiians — used in the election efforts.

The district court denied the preliminary injunction request after concluding that the plaintiffs had not met any of the requirements described in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). The district court later denied the motion to intervene, reasoning that the prospective intervenors did not have a “significantly protectable interest relating to” the subject of the plaintiffs’ lawsuit, and that they were not “situated such that the disposition of the” lawsuit “may impair or impede” their ability to protect any such interest, quoting Arakaki v. Cayetano, 324 F.3d 1078, 1083 (9th Cir. 2003).

The plaintiffs appealed the district court’s preliminary injunction order and sought an injunction pending appeal from this court. A motions panel denied the request for an injunction pending appeal. On November 27, 2015, three days before voting in the delegate election was to end, Justice Kennedy enjoined 'the counting of ballots and certification of winners “pending further order.” Akina v. Hawaii, - U.S. -, -S.Ct. -, 193 L.Ed.2d 420 (2015) (mem.). On December 2, 2015, a five-Justice majority of the Supreme Court enjoined the defendants “from counting ballots cast in, and certifying winners of, the election described in the application, pending final disposition of the appeal by” this court. Akina v. Hawaii, - U.S. -, 136 S.Ct. 581, 193 L.Ed.2d 464 (2015) (mem.).

Two weeks after the Supreme Court’s order, Na’i Aupuni cancelled the election due to concern about litigation-related delays. Instead of the election, the organization decided to offer all 196 Native Hawaiian candidates “a seat as a delegate” to the convention “to learn about, discuss and hopefully reach a consensus on a process to achieve self-governance.” The plaintiffs then filed a motion for civil contempt in the Supreme Court, alleging that Na’i Au-puni’s decision essentially declared all the candidates winners, in violation of the Court’s previous order. The Supreme Court denied the contempt motion. Akina v. Hawaii, - U.S. -, 136 S.Ct. 922, 193 L.Ed.2d 786 (2016) (mem.).

The Aha took place in February 2016, resulting in a proposed constitution for a Native Hawaiian government. Na’i Aupuni, however, decided not tu fund a ratification vote and stated that it would return remaining grant funds allocated for the ratification election. No other elections have been proposed and no governing entity has been formed or recognized by the state or federal government.

In April 2016, Na’i Aupuni dissolved as an entity. Although it appears that some Aha participants are separately trying to organize and raise private funds for a ratification vote, it remains unclear what such an election would look like, who would hold it, and when it would take place, if at all.

II.

On appeal, the plaintiffs challenge the district court’s order denying their request for a preliminary injunction. The prospective intervenors challenge the denial of their motion to intervene. We consider each in turn.

A.

This court has jurisdiction under 28 U.S.C. § 1292 to review the district court’s denial of preliminary injunctive relief. The court, however, has no jurisdiction over an appeal that has become moot. Foster v. Carson, 347 F.3d 742, 745 (9th Cir. 2003).

An interlocutory appeal of the denial of a preliminary injunction is moot when a court can no longer grant any effective relief sought in the injunction request. See In Def. of Animals v. U.S. Dep’t of Interior, 648 F.3d 1012, 1013 (9th Cir. 2011) (per curiam); see generally Campbell-Ewald Co. v. Gomez, - U.S. -, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). The interlocutory appeal may be moot even though the underlying case still presents a live controversy. In Def. of Animals, 648 F.3d at 1013; see also CMM Cable Rep., Inc. v. Ocean Coast Props., Inc., 48 F.3d 618, 621 (1st Cir. 1995).

Here, the plaintiffs sought a preliminary injunction solely to “prevent[] Defendant’s [sic] from undertaking certain voter registration activities and from calling or holding racially-exclusive elections for Native Hawaiians.” Before the district court, the plaintiffs focused their injunction request on the delegation election. That election, however, has been cancelled, and the plaintiffs do not argue that similar elections will occur in the future. Instead, the plaintiffs argue on appeal that the injunction should encompass a ratification vote on the draft constitution produced at the Aha. Na’i Aupuni, however, has decided not to call a ratification vote. No other ratification elections have been scheduled.Further, Na’i Aupuni itself has dissolved as a non-profit corporation and any future election would likely be held by an entity that is not a party to this litigation. Given those changed circumstances, this court cannot provide any effective relief sought in the preliminary injunction request.

We also conclude that the plaintiffs’ appeal does not fall within an exception to the mootness doctrine. Under the voluntary cessation exception, a defendant’s decision to stop a challenged practice generally “does not deprive a federal court of its power to determine the legality of the practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (quoting City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289, 102 S.Ct. 1070, 71 L.Ed.2d 152 (1982)); see also Knox v. Serv. Emps. Int’l Union, Local 1000, - U.S. -, 132 S.Ct. 2277, 2287, 183 L.Ed.2d 281 (2012) (remarking that post-appeal “maneuvers designed to insulate a decision from review by [an appellate court] must be viewed with a critical eye”). But even in such circumstances, an appeal may be properly dismissed as moot if events make “it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189, 120 S.Ct. 693 (citing United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968)). Here, for the reasons previously discussed, the defendants have met their burden to convince “the court that the challenged conduct cannot be reasonably expected to start up again.” Id.

It is possible, and perhaps even likely, that a different group of individuals who are not parties to this case will try to hold a ratification election with private and public funds. No such vote, however, has been scheduled, and it is unclear what shape it would take. Any opinion by this court at this juncture would amount to an impermissible advisory opinion that would, at most, guide any future ratification efforts. See Princeton Univ. v. Schmid, 455 U.S. 100, 102, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982) (per curiam) (“We do not sit to decide hypothetical issues or to give advisory opinions about issues as to which there are not adverse parties before us.”).

For similar reasons, this appeal does not fall within the exception to mootness for disputes that are “capable of repetition, yet evading review.” Weinstein v. Bradford, 423 U.S. 147, 148-49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam). That exception is reserved for “ ‘extraordinary cases’ in which (1) ‘the duration of the challenged action is too short to be fully litigated before it ceases,’ and (2) ‘there is a reasonable expectation that the plaintiffs will be subjected to the same action again.’ ” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999) (en banc) (quoting Am. Rivers v. Nat’l Marine Fisheries Serv., 126 F.3d 1118, 1124 (9th Cir. 1997)); accord United States v. Juvenile Male, 564 U.S. 932, 938, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011) (per curiam).

Here, the plaintiffs cannot satisfy the second requirement. There is no reasonable expectation that the plaintiffs will be subject to the same injury again, given Na’i Aupuni’s disavowal of any election. Further, the district court retains jurisdiction over the underlying lawsuit, and dismissing the preliminary injunction appeal will not, by itself, insulate the defendants’ practices from judicial scrutiny.

We therefore dismiss the plaintiffs’ interlocutory appeal as moot.

B.

We separately affirm the district court’s denial of the motion to intervene as of right in the plaintiffs’ underlying lawsuit. The prospective intervenors qualify as Native Hawaiians under a definition that is narrower than the one in the 2011 legislation. They seek to challenge the more liberal definition, the creation of a Native Hawaiian government based on that definition, and the related expenditure of state trust funds intended to benefit Native Hawaiians.

This court conducts a de novo review of the district court’s order adjudicating a claim of intervention as of right. Arakaki, 324 F.3d at 1082. To the extent that the proposed intervenors seek to stop the delegate and ratification elections, their appeal is moot for the reasons previously discussed. To the extent that they seek to intervene on other grounds — such as to recover state funds already spent on election efforts — we hold that the district court did not err by denying the motion to intervene.

Under Federal Rule of Civil Procedure 24(a), an individual seeking to intervene as of right must (1) timely move to intervene; (2) demonstrate “a significantly protectable interest relating to the property or transaction that is the subject of the action”; (3) “be situated such that the disposition of the action may impair or impede the party’s ability to protect that interest”; and (4) not be adequately represented by existing parties. Id. at 1083. The question of whether protectable interests will be impaired by litigation “must be put in practical terms rather than in legal terms.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1908.2 (3d ed. 2007); see also Smuck v. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969) (“The decision whether intervention of right is warranted ... involves an accommodation between two potentially conflicting goals: to achieve judicial economies of scale by resolving related issues in a single lawsuit, and to prevent the single lawsuit from becoming fruitlessly complex or unending.”).

We agree with the district court that the prospective intervenors’ interests would not, as a practical matter, be impaired or impeded as a result of the plaintiffs’ litigation. The district court properly reasoned that the prospective intervenors’ claims would raise entirely different issues from those raised by the plaintiffs, and that the proposed intervenors could adequately protect their interests in separate litigation. Whereas the plaintiffs argue that the state is being too restrictive in limiting participation in the formation of a Native Hawaiian government, the proposed intervenors would argue that the state should be more restrictive. Further, as the district court noted, the prospective intervenors’ challenge to the expenditure of state trust funds would “expand the suit well beyond the scope of the current action.” See Arakaki, 324 F.3d at 1086 (holding that a prospective intervenor was “not permitted to inject new, unrelated issues into the pending litigation”). Regardless of how the plaintiffs’ lawsuit is resolved, the prospective intervenors will remain free to attempt to organize a native government based on the narrower definition of Native Hawaiian, and then seek state and federal recognition. Further, the prospective inter-venors may bring a separate action challenging the expenditure of trust funds, just as they have done previously in analogous contexts. See Day v. Apoliona, 616 F.3d 918, 927 (9th Cir. 2010) (holding that the OHA could legally use trust money to support legislation that defined “Native Hawaiian” without a blood quantum requirement); Kealoha v. Machado, 315 P.3d 213, 229-30 (Haw. 2013) (upholding the dismissal of the prospective intervenors’ claim that OHA’s expenditure of trust funds for the benefit of a broader set of “Native Hawaiians” was a breach of fiduciary duty).

We therefore affirm the district court’s order denying intervention as of right.

III.

For the aforementioned reasons, we DISMISS the plaintiffs’ interlocutory appeal as moot and AFFIRM the district court’s denial of the motion to intervene.

      . A dispute exists over the definition of “qualified Native Hawaiian” used in the 2011 legislation. The statute at issue defines "qualified Native Hawaiian” in part as an adult "descendant of the aboriginal peoples who, prior to 1778, occupied and exercised sovereignty in the Hawaiian islands.” Haw. Rev. Stat. § 10H-3(a)(2)(A)(i). That liberal definition, however, has no blood quantum requirement, unlike the admission requirements of most Native American tribes. See Rice v. Cayetano, 528 U.S. 495, 526-27, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000) (Breyer, J., concurring). The prospective intervenors in this case are among those who believe the definition of Native Hawaiian should be more restrictive. In this opinion, "Native Hawaiian” refers to the definition in the 2011 legislation, unless otherwise noted.

      . An ’Aha is defined as a "[mjeeting, assembly, gathering, convention, court, party.” Ulu-kau Hawaiian Dictionary, available at http:// wehewehe.org.

      . We pass no judgment on what aspects of the plaintiffs' lawsuit continue to present a live controversy.


author: M. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Lauro AGUILAR-CANCHE, AKA Lauro Aguilar-Canche, AKA Lauro Ivan Aquilar-Canche, Defendant-Appellant.
    Nos. 15-30209 15-30210
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 7, 2016 Seattle, Washington
    Filed August 29, 2016

      Dennis Carrol (argued), Assistant Federal Public Defender, Federal Public Defender’s Office, Seattle, Washington, for Defendant-Appellant.
    Helen J. Brunner (argued), First Assistant United States Attorney; Annette L. Hayes, United States Attorney; United States Attorney’s Office, Seattle, Washington; for Plaintiff-Appellee.
    Before: ANDREW J. KLEINFELD, M. MARGARET McKEOWN, and MILAN D. SMITH, JR., Circuit Judges.
   OPINION

M. SMITH, Circuit Judge:

In 2008, Lauro Aguilar-Canche pleaded guilty in two separate federal drug distribution cases. The district court, in a consolidated sentencing proceeding, imposed the mandatory minimum sentence for each plea, and ordered that the sentences be served consecutively. In 2015, Aguilar-Canche moved for a reduction in sentence based on an amendment to the United States Sentencing Guidelines. We affirm the district court’s denial of that motion because the sentences were not “based on” a subsequently-amended Guideline range.

FACTS AND PRIOR PROCEEDINGS

In 2005, Aguilar-Canche was pulled over in Nebraska for a traffic stop. During the stop, police searched his car and discovered 620 grams of a substance containing methamphetamine and 973.net grams of cocaine. He was charged in the District of Nebraska with possession and intent to distribute cocaine and methamphetamine. The Nebraska court released him on bond to the Western District of Washington, with the requirement that he wear an electronic ankle bracelet while he awaited trial. While he was on supervised release in Washington, he was implicated in another drug distribution investigation. Law enforcement in Washington obtained a search warrant for Aguilar-Canehe’s residence, where they found him sleeping in a bedroom containing 212.4 net grams of a substance containing methamphetamine, 123.7 net grams of cocaine, ten cell phones, a digital scale “used for weighing narcotics,” and $3,178 in cash. At the time of his arrest, Aguilar-Canche was still wearing the ankle bracelet that was a condition of his Nebraska release. He was arrested and charged in the Western District of Washington with conspiracy to distribute methamphetamine, cocaine, and heroin, as well as possession of methamphetamine and cocaine with intent to distribute. The Nebraska case was transferred to the Western District of Washington and the two eases were consolidated.

In the Nebraska case, Aguilar-Canche pleaded guilty to one count of possession of methamphetamine and cocaine with intent to distribute pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A). In the Washington case, he pleaded guilty to one count of possession of methamphetamine with intent to distribute pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B). As the district court noted, this plea deal was very much to Aguilar-Canche’s potential benefit. The government agreed to dismiss all of the other charges; the plea preserved his eligibility for safety-value sentencing relief; and the consolidated nature of the plea “took off the table the possibility that the government would obtain a conviction in one case, and then use that conviction to enhance [his] mandatory minimum in the other.” In both plea agreements, the government offered no assurances as to the sentence Aguilar-Canche might receive, and explicitly stated that the district court would independently determine his sentence. Aguilar-Canche was advised of the statutory minimum and maximum sentences for both charges. The Nebraska charge carried a mandatory minimum sentence of ten years in prison, and a maximum sentence of .life in prison. See 21 U.S.C. § 841(b)(1)(A). The Washington charge carried a mandatory minimum of five years in prison, and a maximum sentence of forty years in prison. See 21 U.S.C. § 841(b)(1)(B).

Aguilar-Canche’s advisory Guideline range for the combined offenses was 135 to 168 months in prison. With mandatory minimum sentences of 120 months for the Nebraska charge and 60 months for the Washington charge, it is evident that if the sentences were to run concurrently, the total prison time (120 months) would be below the Guideline range, and if they were to run consecutively, the total prison time (180 months) would be above the Guideline range. Thus, the district court’s decision with regard to whether the sentences would run concurrently or consecutively determined whether Aguilar-Canche received a sentence above or below the Guideline range.

At the sentencing hearing, the prosecution asked for a “lengthy sentence” of 180 months. The prosecutor noted that the court could divide the mandatory minimum sentences “up however [it] want[ed],” but argued that sentencing Aguilar-Canche to consecutive 120-month and 60'month sentences on the Nebraska and Washington charges “ma[de] sense.” The prosecutor noted that another option would be to sentence “180 months on Nebraska,” which was still within the statutory range, “and whatever you want” on the Washington charges and run the two sentences concurrently, which would reach the same result but with concurrently running sentences. The district court determined that imposing consecutive mandatory minimum sentences for each offense would be “cleaner.”

Furthermore, the probation officer noted that an above-Guideline sentence would be in the interest of justice and would avoid a disproportionately low sentence. Specifically, the drug quantities at issue in Nebraska alone yielded the same Guideline level as the combined drug quantities in both the Nebraska and Washington cases. To follow the Guideline range, the officer argued, would “essentially ... discount[ ] the reoffend.”

The district court next considered the sentencing factors in 18 U.S.C. § 3553(a), and concluded that an aggregate sentence that was above the Guideline range was warranted. It did not think Aguilar-Canche was “one of those good people who simply made a mistake,” because he violated his bond immediately “after telling the judge in Nebraska that he’s going to straighten up and fly right.” The court also noted that the offense was particularly serious because “[t]he amount of meth involved in these offenses is stunning,” and that it “really, really affects communities and individuals in an adverse way.” Due to Aguilar-Canche’s “continuous flaunting of the law,” the court sentenced Aguilar-Canche to 120 months on the Nebraska charge and 60 months on the Washington charge, to be served consecutively.

Aguilar-Canche appealed both sentences, and we affirmed. We held that the district court “conducted a well-reasoned and balanced analysis of the 18 U.S.C. § 3553(a) sentencing factors, and the sentence imposed is substantively reasonable.” United States v. Aguilar-Canche, 362 Fed.Appx. 618 (9th Cir. 2010).

In 2014, Aguilar-Canche filed a motion in the district court, requesting that his sentences be modified to run concurrently rather than consecutively. He invoked 18 U.S.C. § 3582(c)(2), which allows for a term of imprisonment to be modified if it was “based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” The sentencing-range amendment that Aguilar-Canche relied on in this motion was the amended U.S.S.G. § 4A1.2(a)(2), which, as the district court noted, “deals with how ... sentences imposed before the offense of conviction ... are dealt with in calculating a Defendant’s Criminal History Category.” At the original sentencing, Aguilar-Canche had no criminal history at all, so the amendment to U.S.S.G. § 4A1.2(a)(2) would not have affected his sentence. Because the amendment to U.S.S.G. § 4A1.2(a)(2) had “nothing to do with determining whether sentences should run concurrently] or consecutively] in the first instance,” the district court denied the motion. In August 2014, we summarily affirmed the district court’s order, concluding “that the questions raised ... are so insubstantial as to not require further argument.” United States v. Aguilar-Canche, Nos. 14-30023, 14-30024 (Aug. 26, 2014).

In April 2015, Aguilar-Canche filed another motion for modification pursuant to 18 U.S.C. § 3582(c)(2), based on another amendment’to the Sentencing Guidelines. That motion was based on Amendment 782, which amended the drug-quantity table in U.S.S.G. § 2D.1.1. The amendment reduced by two levels the offense levels assigned to drug quantities that trigger statutory minimum standards, and is to be applied retroactively. U.S.S.G. supp. app. C. Pursuant to the amended Guideline, Aguilar-Canche’s offense level would have been two levels lower than originally calculated. The corresponding sentencing range would have been 120 to 135 months, not 135 to 160 months. Like the amendment to U.S.S.G. § 4A1.2(a)(2), the basis for Aguilar-Canche’s previous motion for modification, Amendment 782 does not address whether two sentences should run concurrently or consecutively. The district court denied the motion, ruling that “[njothing in Amendment 782 compels the Court to revisit its earlier sentence.” Aguilar-Canche then filed this timely appeal.

ANALYSIS

As a general matter, a trial court “may not modify a term of imprisonment once it has been imposed.” 18 U.S.C. § 3582(c); Dillon v. United States, 560 U.S. 817, 824, 130 S.Ct. 2683, 177 L.Ed.2d 271 (2010) (“[A] judgment of. conviction that includes [a sentence of imprisonment] constitutes a final judgment and may not be modified by a district court except in limited circumstances.” (alterations in original, internal quotation marks omitted)). The statute includes a few exceptions to this general rule. At issue here is the one providing that a sentence may be modified where the defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). In such cases, the “court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission” in U.S.S.G. § 1B1.10. Id. The statute therefore creates a two-step inquiry. “A court must first determine that a reduction is consistent with § 1B1.10 before it may consider whether the authorized reduction is warranted, either in whole or in part, according to the factors set forth in § 3553(a).” Dillon, 560 U.S. at 826, 130 S.Ct. 2683.

The Sentencing Guidelines policy statement provides that “the court shall determine the amended guideline range that would have been applicable to the defendant if the amendment(s) to the guidelines ... had been in effect at the time the defendant was sentenced.” U.S.S.G. § lB1.10(b)(l). “In making such determination, the court shall substitute only the amendments ... for the corresponding guideline provisions that were applied when the defendant was sentenced and shall leave all other guideline application decisions unaffected.” Id.

Aguilar-Canche argues that his requested modification is consistent with the policy statement because Amendment 782, if it had been in effect at the time he was sentenced, would have yielded a lower Guideline range than the one before the district court. Further, he reads the phrase “shall leave all other guideline application decisions unaffected” to mean that the district court can (and in fact, must) reconsider all other, non-Guideline decisions that led to the sentence — in this case, the decision that the sentences run consecutively. The essence of Aguilar-Canche’s argument is that once a Guideline range is lowered, it opens the door for the district court to reconsider its entire sentence, except for “other guideline application decisions” which are not directly adjusted by the amendment. We reject this interpretation of the statute and corresponding policy statement.

Aguilar-Canche’s argument focuses exclusively on the language in the policy statement that the district court “shall leave all other guideline application decisions unaffected.” U.S.S.G. § 1B1.10(b). It ignores the threshold statutory requirement in § 3582(c)(2), which limits the exception to situations where the defendant “has been sentenced to a term of imprisonment based on a sentencing range that has been subsequently lowered.” 18 U.S.C. § 3582(c)(2) (emphasis added).

The Supreme Court has cautioned that the exception to sentencing finality in § 3582(c)(2) is “narrow [in] scope,” and is “intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.” Dillon, 560 U.S. at 826, 130 S.Ct. 2683. By its terms, § 3582(c)(2) is only available to modify a sentence that was “based on” a subsequently lowered Guideline range. The Court has held that this narrow scope is consistent with the policy statement. “[T]he policy statement seeks to isolate whatever marginal effect the since-rejected Guideline had on the defendant’s sentence.” Freeman v. United States, 564 U.S. 522, 530, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). “Working backward from this purpose, § 3582(c) 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.” Id.

In this case, the since-rejected Guideline range of 135 to 168 months was not a relevant part of the analytic framework the judge used to determine the sentence. In fact, the district court applied the statutory minimum sentence to each charge, not the Guideline range. While the Guideline ranges are advisory, United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the statutory minimum and máximums are mandatory and trump any Guideline range. U.S.S.G. § 5Gl.l(b) (“Where a statutorily required minimum sentence is greater than the maximum of the applicable guideline range, the statutorily required minimum sentence shall be the guideline sentence.”); see Edwards v. United States, 523 U.S. 511, 515, 118 S.Ct. 1475, 140 L.Ed.2d 703 (1998) (“[A] maximum sentence set by statute trumps a higher sentence set forth in the Guidelines.”).

Aguilar-Canche is correct that the district court could have exercised its discretion and ruled that the two mandatory minimum sentences run concurrently, for a total of 120 months. That sentence would have been lower than the Guideline range at the time of sentencing, and at the bottom of the Guideline range after Amendment 782. He also concedes that his motion is a request that “the trial court reconsider the consecutive nature of the sentence in light of the reduced guideline range.” However, the consecutive nature of the sentence is unrelated to the “marginal effect the since-rejected Guideline had on the defendant’s sentence.” See Freeman, 564 U.S. at 530, 131 S.Ct. 2685. It is theoretically possible, of course, that if the district court in 2008 had been presented with the lower Guideline range, the lower numbers might have influenced it in some way to be more lenient when it came to the consecutive nature of the sentence. But this is entirely speculative. If we were to accept Aguilar-Canche’s statutory argument, we would open the door to a “plenary resentencing proceeding,” even where the connection between the lowered Guideline range and the challenged sentencing decision is tenuous. Cf. Dillon, 560 U.S. at 826, 130 S.Ct. 2683. We therefore hold that the district court was not authorized by § 3582(c)(2) to reconsider the consecutive nature of Aguilar-Canche’s sentences.

Although the rulings of other circuits are not binding upon us, we note that the reasoning underlying our holding is substantially similar to the reasoning of the D.C. Circuit’s opinion in United States v. Dunn, 631 F.3d 1291 (D.C. Cir. 2011). In Dunn, the defendant was convicted of both a drug charge and second-degree murder. Id. at 1291. He was sentenced in federal court to 121 months in prison for the drug charge, which was “at the low end” of the Guideline range, and 15 years to life in prison for the murder charge in D.C. Superior Court. Id. at 1292. The two sentences were to be served consecutively. Id. Sixteen years later, the Sentencing Commission retroactively amended the Guidelines on the drug charge, with a new Guideline range of 97 to 121 months. Id.The district court reduced the drug sentence “to the statutory minimum of 120 months, but concluded that it lacked authority to change the consecutive nature of [Dunn’s] sentences.” Id. (citation omitted). The D.C. Circuit affirmed, ruling that Dillon’s prohibition on plenary resentencing “made clear that a court’s authority in a sentence-reduction proceeding is strictly limited to shortening the length of a prison term and does not extend to collateral matters unrelated to the Guidelines change,” which includes the consecutive nature of the sentences. Id. at 1293.

Aguilar-Canche attempts to distinguish Dunn on the basis that it “involved an undischarged term of imprisonment for a separate case in a separate court.” Dunn had been charged with murder in D.C. Superior Court, and was on pre-trial release when he was arrested on the federal drug offense. Aguilar-Canche, by contrast, was charged with a drug offense in the District of Nebraska and while on pre-trial release for that offense, charged with a second drug offense in the Western District of Washington. However, Aguilar-Canche does not explain why this distinction should cause us to come to a different interpretation of the statute. The crux of Dunn’s holding (with which we agree) is that a court’s decision to run sentences consecutively is unrelated to a subsequent Guidelines change, and is thus not modifiable pursuant to § 3582(c)(2).

Aguilar-Canche’s final argument is that the result here is an absurd one, because the sentencing court could have chosen to impose a sentence of 180 months for the Nebraska charge and 0 months for the Washington charge to run concurrently. If it had done so, Aguilar-Canche would have an easier time using the amended Guideline range to challenge the total length of his sentences pursuant to § 3582(c)(2). True, the district court might have taken this option — but it did not. Moreover, we have held in a previous appeal that the two sentences, including the ruling that they run consecutively, were substantively reasonable. The consecutive nature of the sem tences is not modifiable according to § 3582(c)(2) because it was not “based on” the Guideline range, notwithstanding the fact that it might have been if the district court had chosen to impose a different sentence.

CONCLUSION

The district court’s denial of Aguilar-Canche’s motion for reduction in sentence is AFFIRMED.

      . Aguilar-Canche did apply for safety-valve sentencing relief. The government recommended against it on the grounds that his story explaining away his involvement in drug distribution was "incredible,” that he lied about being a gang member, and that he was involved in a scheme to bribe a guard and smuggle contraband into the detention facility while he was in custody. The district court ruled that he was not eligible for safety-valve relief.

      . After his direct appeal, Aguilar-Canche filed a habeas petition pursuant to 28 U.S.C. § 2255(a), alleging that the judge who oversaw his guilty plea "improperly pressured him into pleading guilty" and that he received ineffective assistance of counsel. Aguilar-Canche v. United States, No. C10-5100, 2010 WL 4063281, at *2 (W.D. Wash. Oct. 15, 2010). The district court denied his habeas petition and denied a certificate of appealability. Id. at *3.


author: CALLAHAN, Circuit Judge:

text:
    David A. RADEMAKER, Petitioner-Appellant, v. Daniel PARAMO, Warden, Respondent-Appellee.
    No. 14-56946
    United States Court of Appeals, Ninth Circuit.
    Submitted March 10, 2016 , Pasadena, California
    Filed August 30, 2016

      Tracy J. Dressner, La Crescenta, California, for Petitioner-Appellant.
    Allison H. Chung, Deputy Attorney General;- Stephanie C. Brenan, Supervising Deputy Attorney General; Lance E. Winters, Senior Assistant Attorney General; Gerald A. Engler, Chief Assistant Attorney General; Kamala D. Harris, Attorney General; Office of the Attorney General, Los Angeles, California, for Respondent-Appellee.
    Before: RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, and SANDRA S. IKUTA, Circuit Judges.

       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

   OPINION

CALLAHAN, Circuit Judge:

Kimberly Pandelios disáppeared on February 27, 1992. In March 1998, hikers discovered some of her remains in the Ange-les National Forest but her disappearance remained a mystery until 2004, when evidence surfaced linking David Rademaker to her death. At Rademaker’s trial, the evidence established that Rademaker lured Pandelios to a secluded location on the Angeles Crest Highway for a photo shoot, then abducted and drowned her in a nearby creek. A jury convicted Rademaker of first-degree murder. Based on an erroneous jury instruction regarding the element of asportation, the jury also found true the special circumstance that Rademaker committed the murder during the commission of a kidnapping. The California Court of Appeal affirmed the conviction on direct appeal. People v. Rademaker, No. B190134, 2007 WL 1982272 (Cal. Ct. App. July 10, 2007), modified on denial ofreh’g (July 27, 2007). Applying Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), the court found the instructional error “harmless beyond a reasonable doubt” under state law. On ha-beas review and subject to the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d), we must decide whether the state court’s harmless-error determination was objectively unreasonable. We hold that it was not.

I. Background

A.

Pandelios, an aspiring model, was 21 years old when she answered a modeling recruitment advertisement placed by someone purporting to be a magazine photographer. The photographer turned out to be Rademaker, who was 28 years old, and the photo shoot a ruse to demand sex. Pandelios agreed to meet Rademaker on February 27, 1992. That day, she was seen wearing a blue suit, white blouse, and high heels.

About 1 p.m., Pandelios drove her car to meet Rademaker at a location on the An-geles Crest Highway, near the Angeles National Forest. When the two met, Rade-maker made a sexual overture, which Pan-delios rebuffed. After overpowering and anally penetrating her, he pushed her head into a creek and drowned her.

Later that evening, a Los Angeles deputy sheriff spotted Pandelios’s car parked on the shoulder of the Angeles Crest Highway, just north of the Monte Cristo campground. The car appeared to be vacant and in good condition. Some time later, Rade-maker returned to the car with C.H., a 14-year-old girl with whom he had developed a sexual relationship. Unaware of the murder, C.H. watched as Rademaker squirted charcoal lighter fluid inside the car and lit it on fire. The blaze eventually caught the attention of a second deputy sheriff, who noticed that the fire emanated from the front passenger side rather than from the engine compartment, indicating an intent to destroy evidence or to commit suicide.

In the days that followed, police recovered an empty charcoal lighter fluid container, a plastic lighter and a handcuff key — all observed in the vicinity of Pandel-ios’s car. A month later, hikers found Pan-delios’s appointment book at the bottom of a bridge, next to a nearby creek.

It took a year for anyone to discover Pandelios’s remains, however. In March 1993, hikers discovered her skull and pelvic bone in an isolated, wooded area near the Monte Cristo campground. The area, known as the “cement slab,” included a creek or stream bed. A bra similar to Pandelios’s was found in the vicinity of the skull, as well as pantyhose. Both bra straps had been severed by a sharp object like a knife, razor or scissors, enabling the bra to be removed if the victim’s hands were bound or handcuffed. The pantyhose had also been severed by a sharp object.

In March 1993, a forensic anthropologic recovery team investigated the location where the skull had been recovered and found Pandelios’s fractured mandible as well as a pair of handcuffs, hair, fabric, and Pandelios’s ring and earrings. Two years later, a leg bone was found in the creek near the “cement slab.”

Pandelios’s case went cold. In January 2004, just after Rademaker was released from prison for unrelated crimes, the cold case unit coincidentally began looking into Pandelios’s disappearance. Police learned that during the course of a sexual relationship with M.K., another 14-year-old girl, Rademaker drove M.K. to the Angeles Forest and confessed to sodomizing and murdering “a blonde model that he met through a personal ad.” Rademaker told M.K. that the murder was featured on Unsolved, Mysteries but that the show got it wrong because it reported that the suspects were tattooed bikers.

Police also contacted C.H., whose name appeared in Pandelios’s case file and was described as a girlfriend of Rademaker at the time Pandelios disappeared. C.H. cooperated with law enforcement to elicit a confession from Rademaker. During recorded conversations, Rademaker admit ted that he had set fire to the car while C.H. was present. Police arrested Rade-maker during the course of this surveillance.

B.

Rademaker was indicted for Pandelios’s murder. The prosecution alleged that the murder took place during the commission of a kidnapping, a special circumstance charged under California Penal Code § 190.2(a)(17)(B) and requiring proof of as-portation — i.e., the “carrying away of the victim.” Laurel v. Superior Court of Los Angeles Cty., 255 Cal.App.2d 292, 298, 63 Cal.Rptr. 114 (1967); see Cal. Penal Code § 207(a) (“Every person who forcibly ... steals or takes, or holds, detains, or arrests any person in this state, and carries ,the person ... into another part of the same county, is guilty of kidnapping.”). At the time, California Jury Instruction— Criminal No. 9.50 defined asportation as the movement of a victim “for a substantial distance, that is, a distance more than slight or trivial.” Rademaker, 2007 WL 1982272, at *5 (quoting CALJIC 9.50 (6th ed. 1996)). The definition was based on state supreme court precedent. People v. Caudillo, 21 Cal.3d 562, 572, 146 Cal.Rptr. 859, 580 P.2d 274 (1978) (citing People v. Stanworth, 11 Cal.3d 588, 601, 114 Cal.Rptr. 250, 522 P.2d 1058 (1974)).

The California Supreme Court enlarged the definition of asportation in 1999, overruling Caudillo. People v. Martinez, 20 Cal.4th 225, 237-38 & n.6, 83 Cal.Rptr.2d 533, 973 P.2d 512. (1999). In Martinez, the court adopted a totality of. the circumstances standard, holding that factors other than actual distance may be relevant to asportation. Id. California Jury Instruction — Criminal No. 9.50 was thus revised to conform to Martinez. The new version stated in pertinent part:

A movement that is only for a slight or trivial distance is not substantial in character. In determining whether a distance that is more than slight or trivial is substantial in character, you should consider the totality of the circumstances attending the movement, including but not limited to, the actual distance moved, or whether the movement increased the risk of harm above that which existed prior to the movement, or decreased the likelihood of detection, or increased both the danger inherent in a victim’s foreseeable attempt to escape and the attacker’s enhanced opportunity to commit additional crimes.

CALJIC No. 9.50 (1999 rev.). The comment to the revision admonished: “This 1999 revision cannot be applied retroactively.” Id. (citing Martinez)-, see Martinez, 20 Cal.4th at 240-41, 83 Cal.Rptr.2d 533, 973 P.2d 512.

At the close of evidence, the trial judge sua sponte charged the jury using the revised instruction even though the instruction was not in effect at the time of the murder. In 2006, a jury found Rade-maker guilty of murder. Cal. Penal Code § 187(a). As to the special circumstance, the jury applied the court’s instruction and found that the evidence proved kidnapping beyond a reasonable doubt. The trial court sentenced Rademaker to life without the possibility of parole based on this finding.

Rademaker appealed, principally contending that he was prejudiced by the trial judge’s use of the 1999 instruction. The California Court of Appeal unanimously affirmed his conviction in a reasoned (unpublished) decision. Rademaker, 2007 WL 1982272. The court held that the trial court’s instruction was erroneous as a matter of state law, then applied the Supreme Court’s harmless-error rule established in Chapman. Id. at *4-8 & n.6. The court determined:

Although the precise spot of her murder was not pinpointed, it was reasonable for the jury to infer that [Rademakerj’s intent was to kill Pandelios far from prying eyes and that having selected the spot that suited his nefarious purpose, [Rademaker] did not intend to drag the body for any great distance. Accordingly, the jury was entitled to find [Rade-maker] murdered Pandelios at some spot not far from the cement slab, which was at least a mile from where [he] abducted her.

Id. at *8.

Rademaker appealed the decision to the California Supreme Court, but the court denied review of his claims on October 17, 2007. On habeas review, the district court denied relief under AEDPA. This timely appeal followed.

II. Standard of Review

Rademaker filed his petition for habeas corpus after April 24, 1996, therefore AEDPA applies to his claim of instructional error. Mann v. Ryan, 828 F.3d 1143, 1150-51, 2016 WL 3854234, at *6 (9th Cir. 2016) (en banc). Where a claim is adjudicated on the merits in state court, we review that claim to determine whether its adjudication was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); Davis v. Ayala, - U.S. -, 135 S.Ct. 2187, 2198, 192 L.Ed.2d 323 (2015). “We review the last reasoned state court decision according to this deferential standard.” Mann, 828 F.3d at 1151, 2016 WL 3854234, at *6. We review de novo the district court’s application of AEDPA to that decision. Id.

Under AEDPA’s “contrary to” clause, we examine whether “the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Mann, 828 F.3d at 1151, 2016 WL 3854234, at *7 (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Under the “unreasonable application” clause, “[we] must determine what arguments or theories supported or ... could have supported[ ] the state court’s decision; and then [we] must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). The inquiry requires us to determine whether a petitioner has shown that the state court applied a clearly established Supreme Court holding “in an ‘objectively unreasonable’ manner” — i.e., “the state court’s decision to reject his claim ‘was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’ ” Ayala, 135 S.Ct. at 2198-99 (quoting Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam); Richter, 562 U.S. at 103, 131 S.Ct. 770).

III. Analysis

There is no dispute that the trial court erred in using the expanded, non-retroactive asportation instruction. The error, Rademaker contends, violated his federal constitutional rights. We need not resolve that contention. Because the California Court of Appeal applied Chapman, we may assume that it found the trial court’s error to be a federal constitutional error. See Martinez, 20 Cal.4th at 238-41, 83 Cal.Rptr.2d 533, 973 P.2d 512(holding that retroactive application of the revised kidnapping instruction was barred by the federal Due Process Clause); see also Ayala, 135 S.Ct. at 2195, 2197 (making a similar assumption when the state court applied Chapman without deciding whether an error violated the federal Constitution). Thus, the only question raised by this appeal is whether the California Court of Appeal reasonably concluded that the error was “harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24, 87 S.Ct. 824.

“When a Chapman decision is reviewed under AEDPA, ‘a federal court may not award habeas relief under § 2254 unless the harmlessness determination itself was unreasonable.’ ” Ayala, 135 S.Ct. at 2199 (quoting Fry v. Pliler, 551 U.S. 112, 119, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)). As the California Court of Appeal found, the trial court’s use of the expanded definition of asportation was an error of state law. Assuming that the error is also a federal constitutional error, however, the error did not prejudice Rademaker since the jury would have properly convicted him of kidnapping — under either definition of asportation — if it found the victim was moved a “substantial distance” of at least 200 feet. Rademaker, 2007 WL 1982272, at *7. Critically, the circumstantial evidence cited by the court showed that Rademaker moved Pandelios roughly one to one and one-half miles. Id. at *7-8. .The evidence included testimony about Rademaker’s regular visits to the Angeles National Forest in his SUV; the timing and location of Pandelios’s disappearance, which occurred on the very day she was scheduled to meet Rademaker for a photo shoot in the vicinity of the forest; and the discovery of Pan-delios’s car parked about a mile or a mile and a half from the handcuffs, Pandelios’s remains and her personal effects. Id. In light of this evidence, it was not objectively unreasonable for the state appellate court to conclude that the evidence supported the jury’s finding that Rademaker carried Pandelios a “substantial distance.” The conclusion gave effect to the proper instruction, thus rendering the charging error harmless beyond a reasonable doubt. Because “a fairminded jurist could agree” with the state court’s Chapman determination, Rademaker “necessarily cannot satisfy” the requirement under Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), of showing that he was “actually prejudiced” by the trial court’s error. Ayala, 135 S.Ct. at 2199.

IV. Conclusion

The state court’s harmless-error determination was not an objectively unreasonable application of Chapman. We therefore AFFIRM the district court’s denial of ha-beas relief.

      . According to testimony from Richard Alber-tini, whom Rademaker befriended in the mid-1980s, Rademaker was involved in a prostitution outcall business. He would place advertisements in LA Express with pictures of nearly nude girls along with a phone number. After a potential customer left a message at the phone number in the ad, Rademaker would vet the customer and then return the call using a router so his phone call could not be traced. Rademaker would then arrange a meeting between the prostitute and the customer.

      . According to the stipulated findings of a dental expert, blows from a small, hard round object could have caused the fracturing of the front part of the jaw and the fracturing and chipping of several teeth. The expert also found that these injuries likely occurred around the time of death.

      . Although it was alleged that the murder was committed while Rademaker engaged in unlawful sodomy, the jury found this special circumstance not true. Rademaker, 2007 WL 1982272, at *1 n.2; see Cal. Penal Code § 190.2(a)(17)(D).

      . The California Court of Appeal observed that ''[Rademaker] did not challenge the evidence of the distances involved, nor did he contest that the actual distance the victim was moved was substantial in character.” Id. at *5. At trial, however, Rademaker contested that Pandelios was moved against her will.