                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                             FOR THE NINTH CIRCUIT                          AUG 31 2015

                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 14-10319

               Plaintiff - Appellant,            D.C. No. 3:13-cr-00662-RS

 v.
                                                 MEMORANDUM*
CLIFFORD D. BERCOVICH and
HOWARD WEBBER,

               Defendants - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Richard Seeborg, District Judge, Presiding

                            Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      The government appeals from the district court’s order dismissing the

aggravated identity counts against Clifford D. Bercovich and Howard Webber




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“appellees”). We have jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291,

and we reverse and remand.

      The district court dismissed the aggravated identity theft counts brought

under 18 U.S.C. § 1028A, because the indictment failed to allege that appellees

transferred, possessed, or used another person’s means of identification without

that person’s consent. We later held in United States v. Osuna-Alvarez, 788 F.3d

1183 (9th Cir. 2015) (per curiam), that “regardless of whether the means of

identification was stolen or obtained with the knowledge and consent of its owner,

the illegal use of the means of identification alone violates § 1028A.” Id. at 1185-

86. In light of our intervening decision in Osuna-Alvarez, we reverse the district

court’s order dismissing the section 1028A counts, and remand for further

proceedings.

      REVERSED and REMANDED.




                                          2                                   14-10319
