*1 Int’l, clearly that it would be errone Inc. dissimilar Thane that niche.” mark within 894, 908 was a likelihood of Bicycle Corp., 305 ous to hold that there v. Trek (9th Cir.2002); Times Mirror see also dilution. Vegas Sports Inc. v. Las

Magazines, judgment Accordingly, we affirm the Cir.2000), (3d L.L.C., News, the district court. 1071, 121 denied, S.Ct. 531 U.S. rt. ce (2001); L.Ed.2d 662 cf. (F). 1125(c)(1)(E), Accordingly, even fame, Frosty niche recognize we were to out a to make would be unable

Treats 1125(c). claim under America, UNITED STATES Act, Anti-Dilution The Missouri Plaintiff-Appellee, however, 417.061(1), Mo.Rev.Stat. see pro It proof of fame. require does not injury to busi “[l]ikelihood

vides that VIDAL, Defendant- Juan Jose of the dis or of dilution reputation ness Appellant. ... be a of a mark shall quality tinctive No. 04-50185. injunctive relief.” Id. Courts ground for that a required have applying that statute Appeals, United States Court that the mark or trade establish plaintiff Ninth Circuit. registered under is distinctive and dress §§ statute, 417.005- see Mo.Rev.Stat. state Feb. Argued and Submitted law, 417.066, or valid at common Deferred Vacated and Submission mark the plaintiffs use of the defendant’s Feb. dilution of the dis a likelihood of creates 24, 2005. and Filed Oct. mark. Resubmitted plaintiffs quality tinctive Cf. Gilbert/Robinson, Beverage- Inc. v. Carrie Missouri, Inc., F.Supp. Cir.1993), (E.D.Mo.1991), aff’d, 989 F.2d 985 denied, S.Ct. rt. U.S. ce affirming 126 L.Ed.2d rejection of a claim under

a district court’s ex statute we

the Missouri anti-dilution a dilution com gravamen “The

plained, continuing that the

plaint [defendant’s] plaintiffs mark

use of a similar ef inexorably have an adverse

mark will mark, plaintiffs the value of the upon

fect mark will even plaintiffs

and that deprived of all distinctiveness.”

tually be (internal

WSM, Inc., F.2d at 1332. Altman, omitted); Louis see 3

quotation Trade Competition, on Coliman Unfair at 22-132 Monopolies 22:13

marks and Gilbert/Robinson,

(4th ed.2004); see also

Inc., Mis at 527. Plaintiffs’ F.Supp. fails because the dilution claim

souri-law are so dress at issue

marks and trade *2 Finally, in a felony under federal law.

ed letter, 28(j) P. asks for R.App. Fed. to be vacated and remanded his sentence light of United reconsideration *3 — Booker, U.S.-, States 738, 160 L.Ed.2d 621 was convicted of conclude Vidal Moreover, felony. Blakely aggravated an Taylor not undermine v. United States, 495 U.S. S.Ct. (1990), authority or our own L.Ed.2d categorical ap embracing the modified Therefore, the district court did proach. CA, for the de- Shetty, Diego, San Siri Nevertheless, it. we applying not err fendant-appellant. proceedings light for further remand Attorney; Lam, States Carol C. United — Booker, —, U.S. S.Ct. Rehe, Attorney; U.S. Mark R. Assistant v. Ame and United States L.Ed.2d Office, San Die- Attorney’s United States (en Cir.2005) line, 1073, 1074 CA, go, plaintiff-appellee. for the banc). Vidal, citizen, entered the a Mexican February from Mexico on United States agents 2003. Border Patrol discovered BROWNING, MAGILL,* and Before: day. gov- him and arrested the next RYMER, Judges. Circuit an indictment in the South- ernment filed of California Vidal ern District RYMER, Judge. Circuit in the deported a alien found being from his sen appeals Vidal Juan Jose States, in violation 8 U.S.C. United deported alien found being tence for charge. pled guilty 1326. Vidal States, in violation the United determined, under then The district court eight-level challenges § 1326. Vidal categori- and modified both resulting to his sentence enhancement 1994 conviction that Vidal’s approaches, cal conclusion that his from the district court’s driving or for the unlawful taking of for the unlawful conviction vehicle, Vehicle in violation of California vehicle, in of California Vehicle violation 10851(a), a conviction constituted Code 10851(a), aggravat constitutes Code a theft offense.” Because for a “theft Sentencing States felony ed under United felony, the dis- is an 2L1.2(b)(1)(C). ar He also Guideline offense level trict court increased Vidal’s Blakely Washington, 542 U.S. gues that levels, to United States by eight pursuant 159 L.Ed.2d S.Ct. 2L1.2(b)(l)(C). Sentencing Guideline (2004), to the modified precludes resort impris- to 33 months was sentenced Vidal whether categorical approach to determine onment. previously the defendant was timely appealed. aggravat- constitute an conduct would * Magill, nation. J. Senior Circuit The Honorable Frank Circuit, desig- sitting by Judge Eighth for the

II maintains that it encompasses the intent to make a temporary depriva- de minimis Whether Vidal’s tion of vehicle whereas the feder- felony qualifies pur as al definition adopted of “theft offense” poses of 2L1.2 is reviewed de novo. employs Corona-Sanchez the Model Penal Arellano-Torres, approach Code that requires the intent “to 1176(9th Cir.2002) (citation omitted). withhold permanently another or for so a period appropri- extended as to III major ate a portion of its economic value.” LaFave, Wayne R. Substantive Criminal A *4 19.5, § Law at 88 disagree argues that California Vehicle possible that it is to read Corona-Sanchez 10851(a) § Code does not There, way. adopted we the Sev- qualify aggravated felony as an generic enth Circuit’s definition of the 2L1.2(b)(1)(C). § In U.S.S.G. the 2002 phrase (including “theft offense receipt of Guidelines, version of the which the dis property),” stolen which is here, trict correctly used a taking or an exercise of 2L1.2(b)(1)(C) § provides for an 8-level control over property without consent enhancement of the if offense level with the criminal deprive intent to defendant previously deported was after a owner of rights and benefits of owner- aggravated felony. conviction for an A ship, deprivation even such is less than “theft (including receipt of stolen permanent. total or property) ... for which the term of im 291 F.3d at 1205(quoting Hernandez prisonment year” at least one is [is] INS, (7th -Mancilla v. aggravated felony of U.S.S.G. Cir.2001)). “Congress We noted that used 2; § § 2L1.2. cmt. n. U.S.S.G. 8 the words ‘theft just offense’ rather than (a)(43)(G). U.S.C. 1101 ‘theft,’ indicating thus phrase ought incorporate be read to different but To determine whether Vidal’s closely related constructions modern qualifies aggravated as an felo state explicitly statutes.” Id. And we de ny, we first “look to the fact of convic clined to embrace the Model Penal Code tion and statutory definition of the definition, whether or not it reflects the prior offense.” United States v. Corona- view of a majority of modern theft stat Sanchez, 1203(9th Cir.2002) utes. Id. (en banc) (quoting Taylor, 495 U.S. There is no inconsistency between 2143). Under the 10851(a) Corona-Sanchez’s approach, the court asks whether “the definition. Section criminalizes statute conduct that criminalizes would not “tak[ing] a vehicle without the consent aggravated felony constitute an under fed thereof, of the owner and with intent ei- eral sentencing law.” Id. ther to permanently or temporarily de- Vidal contends that 10851 is ov prive the owner thereof of his or her title erly First, broad in respects. two possession vehicle,”1 to or while full, 10851(a) 1. In provides: possession thereof of his or her title to or vehicle, Any person whether with or without who drives or takes a vehicle not intent to own, vehicle, his or her steal the person party without the consent of the or who is a thereof, owner per- accessory and with accomplice intent either to to or an in the manently temporarily deprive driving the owner stealing, or unauthorized ally, recently he notes that we held depriva- contemplates Corona-Sanchez perma- Ashcroft, total or 395 F.3d 1037 if “less than Penuliar v. tions even Thus, Cir.2005), to make a less the intent is not a theft nent.” ie., temporary, depriva- permanent, than qualifies offense that as an fel- the intent a vehicle falls within tion of ony Immigration under the and Nationali- of a theft offense. requirement 1101(a)(43)(G). Act, ty reliance on Nevarez-Martinez Vidal’s does not control on the Corona-Sanchez (9th Cir.2003), INS, is mis- import abetting California’s argues that the Arizona stat- placed. He it was decided under sim- in Nevarez-Martinez was ute at issue that have since been amended. Guidelines and that we held there ilar to ap- the district court categorically constitute an that it did not §of 2L1.2 plied the 1997 version whose felony. problem commentary made no mention of two addressed was different. While being 291 F.3d at 1202 n. Arizona statute of the divisible sections However, § 2L1.2 in No- was amended deprive, permanently intent required 2001(well before Vidal reentered vember no intent three sections included the other *5 and was convicted and United States at 1055 whatsoever. Id. requirement sentenced) aiding abetting and to include (“The requires knowledge, Arizona statute felonies as felonies. require not intent for the statute does but applicable Application Note states: (4) (5).”). (2), held that or violation un- “Prior convictions of offenses counted a did not constitute violation of the statute (b)(1) include the offenses der subsection offense within the definition theft at- aiding abetting, conspiring, and and “crimi- require the statute did not because such offenses.” tempting, to commit owner,” we deprive the but nal intent to (2002). 4 cmt. n. This U.S.S.G. that criminal- not hold that statute did sentence. commentary governs Vidal’s temporarily deprive izes the intent —as Rodriguez-Rodri- States v. See United offense. does—is not a theft California’s (9th Cir.2005) (not- guez, 393 F.3d also maintains Vidal specifically application *6 it, federal law interpreting meaning encouragement, California aid- broad of also ing abetting liability requires and proof of within aiding the ambit of federal and all elements in contained the federal defi- abetting liability. See law, nition. California Barnett, 841(9th Cir.1982) Under 835, (“An who, rea, who, an aider and abettor is one person abettor is with mens (1) “acting knowledge commands, with of the unlaw- counsels or otherwise en- (2) purpose ful perpetrator; of the courages perpetrator the to commit the crime.”) (internal the purpose committing, intent or of en- quotation marks omit- couraging, facilitating ted). or the commission Vidal suggests reply further his (3) offense, aids, by act or advice brief that and abetting liability for promotes, encourages or instigates, the sentencing federal purposes does not cover commission of the crime.” accessories to criminal conduct who act 248, prohibited after the commission of the People Prettyman, act. Cal.4th However, 827, Cal.Rpt 1013, point r.2d is neither developed, 926 P.2d 1018-19 (1996) Beeman, 60, nor (quoting would it make Cal.Rptr. difference this 1326). because, 674 P.2d at charged explain, When the case as we shall Vidal crime, specific offense is a pled guilty intent as is the to the car. Howard, People Cal.App.4th

2. See perpetrator’s purpose gives criminal aid Cal.Rptr.2d encouragement purpose with the intent or facilitating perpetrator’s of commission of requirement 3. This is accounted for in Cali- formulation, ” Prettyman, the crime.’ 14 Cal.4th three-part fornia's because an Cal.Rptr.2d (quoting 926 P.2d at 1018 accomplice perpetra- shares the intent of the Beeman, 1326). " P.2d at tor when he 'knows the full extent of the minimis deprivations, upon court did not Accordingly, the district that Vidal’s offense concluding complaint charged: err in The definition conviction was within On or June did [Vidal] about Regardless, applying offense.” of “theft unlawfully willfully and drive and take approach, it is categorical the modified vehicle, personal GARY a theft pled guilty that he to offense. clear CRAWFORD, without the consent deprive with intent to the owner B vehicle, title to possession of said If an offense does violation of VEHICLE SEC- CODE felony an aggravated as qualify 10851(a). TION law, may “go a court sentencing federal Thus, Vidal admitted that he took a vehicle beyond fact of conviction” and mere else, to someone belonging without judicially no examine “documentation consent, intending owner’s deprive clearly facts that establish ticeable owner of are possession. title These conviction for predicate the conviction that meet the generic elements defini purposes.” United States enhancement tion of “theft offense” under Corona-San Rivera-Sanchez, chez, by Application as 4 to informed Note Cir.2001) (en banc) (citations and internal § 2L1.2. days He was sentenced to 365 omitted). marks The quotation jail, required as together signed either the papers 1101(a)(43)(G). judg an plea agreement or abstract are in ment—all three of which the rec Conclusion support finding ord case—can correctly district determined that a conviction was convicted of Vidal was felony. v. Velasco- See United States felony 2L1.2. 851-53(9th Medina, Cir. challenges now his sentence Vidal 2002). ground on the that the district court sen- matter, ar preliminary As a mandatory tenced him under the Guide- gues applying lines, proceedings we remand for further whether was *7 approach determine Booker, 756-57, light of 125 S.Ct. at felony of an aggravated violates Ameline, F.3d at 1074. 296, 124 Blakely v. 542 U.S. Washington, PART; IN AFFIRMED REMANDED 2531, (2004), S.Ct. L.Ed.2d be IN PART. approach the to requires cause the prior than fact of find more the mere BROWNING, concurring Judge, Circuit However, argument is conviction. this part dissenting part: Smith, by v. foreclosed 661, (9th Cir.2004), 666-67 where we majori- respectfully I dissent from the preclude not Blakely held that does ty’s holdings that California Vehicle Code categorical approach. modified For the 10851(a) ag- categorically qualifies as an Smith, set out in Booker not reasons is gravated felony “theft for sen- offense” implicated, either. in fact tencing, and that Vidal’s conviction ap- qualifies categorical under the modified this, Beyond arguments boil Vidal’s for sen- proach predicate as a conviction that he points down same believes in this case. Accord- tence enhancement categorically disqualify his convic I court’s ingly, would reverse district complaint tion—that conviction enhancement, Vi- temporary, imposition been on de of the vacate could have based sentence, and for agree dal’s remand resentenc- majority’s analysis with the ing.1 Application Note 2L1.2 of the Sen- tencing dispositive Guidelines is A prior qualifies context as to the former.3 predicate as sentence en- majority adequately fails to address range hancement if the full of conduct latter, 1017, ante at doing and in so reach- covered statute of conviction falls anes erroneous conclusion. generic federal-sentencing within the defi- INS, 1185, Chang nition. 307 F.3d relevant part states the (9th Cir.2002); Taylor accord following United guilty public are offense it States, 575, 599-602, 495 U.S. “[a]ny S.Ct. describes: person who drives or 2143, (1990); 109 L.Ed.2d 607 United takes a vehicle not his or her own Corona-Sanchez, 1201, any States 291 F.3d person who is a party accessory or an (9th Cir.2002) (en banc). However, to or an accomplice in” the same. Cal. 10851(a). such a statute is broader than generic Veh.Code It long settled offense, ie., if it both criminalizes conduct that California law no longer recognizes generic falls within the definition and distinction principals between in the not, conduct (aiders that does the statute of con- degree, first degree second viction cannot qualify categorically scene), for en- present abettors at the or accesso- hancement purposes.2 Taylor, (aiders 495 U.S. at ries before the fact and abettors 599-602, 2143; present).4 Penuliar v. Ash- not Additionally, California (9th croft, Cir.2005); 395 F.3d does not include as principals, “accesso- ries,” 291 F.3d at 1211. i.e. formerly, “accessories after the fact.”5 Vidal asserts that is broader generic

than the definition of result, “theft of- As a language adopted by fense” this court in extending Corona- liability to “an accessory to” the because, alia, Sanchez inter it criminalizes unlawful driving of another’s ve- aiders and abettors as well as accessories. hicle can be understood properly to 1. majority's holding I concur in the ries of conduct which the sentencing Blakely Washington, 542 U.S. not. definition does Such a conclusion is (2004), S.Ct. 159 L.Ed.2d 403 plainly Taylor’s primary inconsistent with preclude approach holding. Taylor, See 495 U.S. at States, Taylor v. United 495 U.S. (1990), S.Ct. 109 L.Ed.2d 607 see Unit- Application Note 4 appears in this context Smith, ed States v. 666-67 2L1.2(b)(1)(C), to add effectively, the fol- Cir.2004); remand, following and that on lowing italicized text: "after ... a conviction Ameline, United States v. *8 aggravated felony for an and abet- (9th Cir.2005) (en banc), the district court ting aggravated felony, increase 8 levels.” should determine whether the sentence im- Sentencing See U.S. Guidelines Manual posed would materially have been different 2L1.2, (2002). § cmt. n. had it sentencing guidelines known the were advisory. 2005); § 4. See (Deering Cal. Pen.Code 31 La- Fave, SUBSTANTIVE CRIMINAL LAW Although 2. Taylor and coun- Corona-Sanchez 13.1(e), (2003). § at 333-36 California abol- that sel the term "theft offense" should be ished such distinctions in 1872. incorporate "read to closely different but re- statutes,” lated constructions in modern state Corona-Sanchez, See, Mitten, (quoting e.g., People 291 F.3d at Cal.App.3d 5. 590-91, Taylor, 879, 883, 2143), (1974) (contrast- 495 U.S. at reasoning such ing cannot cure approach the overbreadth California's to that of several of a state catego- states). statute which criminalizes other of, pled in fact was guilty and know- dant convicted sufficiently parties reach who to, crime. generically a after the commission defined Corona- principal aid ingly Sanchez, 1211; the offense.6 F.3d at accord United of Franklin, 1165, 1170(9th States § 2L1.2 Note 4 to Although Application Cir.2000) which, (listing documents for aiders sentencing extends categorical analysis, modified can and can abettors, to accesso- it not extend it “clearly not establish” defendant’s con conviction Comparing the statute of ries.7 duct). definition, generic predicate to the that, by criminalizing beyond dispute it is disagree majority’s conclu 10851(a) accessories, a broader § covers sion, 1016-1017, any per ante at Sentencing of than does the range conduct charging of missible combination Vidal’s As a generic “theft offense.”8 Guidelines signed judg papers, plea agreement, and result, § can- conviction “unequiv of capable ment of conviction is of- as a “theft categorically qualify not ocally,” clearly, establishing or even enhancement within fense” for sentence pled nature of the to which conduct 1101(a)(43)(G). § meaning of 8 U.S.C. Effectively, merely each recites guilty.9 Penuliar, at 1044-45. See 10851(a).10 language previously have found this is not categorically, fails Because enough to survive modified “modi- Taylor’s familiar we continue with analysis. Lopez-Monta ex- categorical” analysis which we fied (9th Cir.2005) nez, relevant, F.3d judicially noticeable docu- amine they (finding document which “sim ments record to determine ply language that the defen- restates the statute” “unequivocally establish[ ]” conspiracy such offense. became effective or the to commit 6. Cal. Veh.Code plainly does twenty-five years It not cover accessorial one hundred changed Cal. the State's after Pen.Code permitted Court is This notice naming parties. approach 9. of criminal categorical analysis facts recited also, LaFave, 13.6(a) "Accessory supra, See Franklin, presentence report. Vidal’s After the Fact”. "Taylor (explaining at 1171 and this precedents have circuit in our foreclosed Aiding note "4. and Abet- 7. The in full states: underlying approach facts considers _ ting, Conspiracies, Attempts. Prior determine whether convictions to counted under subsec- convictions of offenses by jury pleaded was defendant (b)(1) tion the offenses of include offense”). predicate guilty to a abetting, conspiring, attempting, to commit such offenses.” U.S.S.G. judgment Vidal’s refers 10. cmt. n. 4 1”; agreement plea reveals that to "Count his 10851(a)VC guilty DRIV- pled to "Count 1 Corona-Sanchez, adopted the this [sic]”; and his ING A STOLEN VEHICLLE definition of "theft offense.” Seventh Circuit’s 10851(a)'s charging papers simply recite 1205("a taking F.3d at language generic statutory with the date property exercise over or an of control names See Vidal's and another’s inserted. criminal consent with the without Record, 39, 44, Excerpt Additional- *9 rights deprive and to the owner of intent wording charge ly, the variation in depriva- ownership, even benefits of if such charging papers plea and is not in Vidal’s permanent”). Given tion is less total or insignificant. Despite than 10. See note infra context, assertion, Application 4 to at majority's Note ante the record raises, unequivocally, a "theft includes the commission rather resolves offense” than of, commit, questions as to of Vidal’s actions. attempt the nature to and 1020 Ajene Edo, Plaintiff-Appellant, the elements of con

unable to establish categori of viction for v. cal accord analysis); Huerta-Guevara v. Casualty Company, Defendant, Geico (9th Cir.2003) Ashcroft, (“The difficulty is that the conviction’s la and far; bel goes so conviction itself Company; General Geico Insurance Gei must meet of theft definition Indemnity Company; co Government it.”). no matter what state calls Company, Employees Insurance Sub Merely language the stat reciting corporation, sidiaries Geico Defen ute tells the court no more would a than dants-Appellees. recitation of the code section-number particularly 03-35695, alone. This is in this ease so Nos. 04-35279. given activity breadth criminalized of Appeals, United States Court 10851(a).11 chargeable and Ninth Circuit. Therefore, does not and Argued Submitted March 2005. qualify categorically as an aggravated felo- ny Sentencing “theft offense” for Guide- Filed 2005. Oct. enhancement, lines and because the record Amended Oct. 2005. unequivocally does not establish that Vidal offense,” pled guilty fact to a “theft would reverse 8-level sentence en-

hancement, sentence, vacate Vidal’s resentencing.

remand for Ray REYNOLDS;

Jason Matthew

Rausch, Plaintiffs-

Appellants,

HARTFORD FINANCIAL SERVICES

GROUP, INC.; Hartford Fire Insur- Company,

ance Defendants-Appellees. California law is clear that driving cov- with both vehicle without consent, range ers a of conduct in necessarily charges concert its the owner’s it statutes, (California's larceny joy-riding and contains "joy- violation both” 499b distinct, statute) Ivans, "taking” riding” alternate theories of 2 Cal. See, Ivans, merely “driving.” e.g., People App.4th Cal.Rptr.2d 66. Cal.Penal 1654, 1663, Cal.App.4th Cal.Rptr.2d §§ permit argument Code (1992); Austell, People Cal.App.3d charging papers Vidal's establish he was 1249, 1251-52, (1990); Cal.Rptr. charged principal as a and not as an accesso- Donnell, 762, 769, People Cal.App.3d ry. text because the accessories, imprecision itself extends mere ref- charging plea Vidal's general provisions is not documents erence of California's law, insignificant; e.g., under if a unequivocally support California Penal Code cannot "charges document a defendant such a conclusion. that the notes ing in that it al is over-inclusive aiding and abet- include convictions for aiding on and abet lows convictions based distinguishable for the ting). Penuliar is “any liability. The includes ting statute reason, it construed same party accessory or an to or person who is 1101(a)(43)(G) alone, the com- without driving or unautho accomplice § 2L1.2 that includes mentary to U.S.S.G. Relying on taking” of a vehicle. rized of en- abetting for aiding and Corona-Sanchez, that we points out Vidal for convic- hancing the offense level statute, general theft held that California’s tions. 484(a), Penal Code California so, argues Even Vidal California offense be qualify as a theft liability abetting is broader aiding and California, can defendant be “[a] cause aiding abetting and than federal offense of vio of the substantive pos- he relying Again on aiding abetting and lation of “[ujnder law, aiding and its that California theft, theory specifically if that is not even broad, extending quite abetting 291 F.3d at 1207-08. Addition- charged.” and, prison by a fine of not more than upon the state or guilty public of a ($5,000), thereof, by both the or punished by imprisonment five thousand dollars shall be imprisonment. year fine county jail than one or in and for not more vehicle,2 instigation.” and 291 unlawful of a accom promotion even to “the Beeman, (citing People at 35 plice specific F.3d must share the intent of the Cal.Rptr. 674 P.2d perpetrator.” Cal.3d Id. Cal.Rptr. (1984)). comparison, 1318(internal 1325-26 quotation P.2d marks submits, requires proof omitted).3 federal version Further, government must (1) prove perpetrator in- the existence of a of the specific that the accused had the underlying People Singleton, of a offense. tent to facilitate commission (2) another, 488, 493, by Cal.App.3d that the accused crime requisite underly- had the intent of the (3) offense, ing substantive that the ac- submits that also California participated cused assisted or abetting liability beyond and extends underlying commission substan- concept including promotion federal (4) offense, tive someone com- instigation underlying crime. But underlying mitted the substantive of- the federal definition extends to those who fense. counsel, command, induce, procure Sayetsitty, someone to commit a crime we cannot 1412(9th Cir.1997) (quoting United States see counseling, commanding, inducing, how Gaskins, Cir. and procuring encompass pro- would not 1988)). 2(a); moting instigating. See U.S.C. (without Ninth Circuit Manual of Model Criminal Assuming deciding) that “aid- (2003) Jury (aiding Instructions 5.1 ing abetting” in the Guidelines means instruction). abetting Further, 2(a), pro- both thing the same as 18 U.S.C. statute, instigation motion and federal are within the