                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                        U.S. COURT OF APPEALS
                              No. 08-15950                ELEVENTH CIRCUIT
                                                              JUNE 15, 2009
                          Non-Argument Calendar
                                                           THOMAS K. KAHN
                        ________________________
                                                                CLERK

                    D. C. Docket No. 08-20202-CR-JAL

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

STEVEN EHRLICH,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (June 15, 2009)

Before DUBINA, Chief Judge, CARNES and FAY, Circuit Judges.

PER CURIAM:
      Appellant Steven Ehrlich appeals his conviction for knowingly and willfully

using, without lawful authority, the identification of another person during and in

relation to a felony, in violation of 18 U.S.C. § 1028A(a)(1).

      Ehrlich argues that 18 U.S.C. § 1028A(a)(1) requires that the government

prove that he knew the identification information he used belonged to another

person, an argument we rejected in United States v. Hurtado, 508 F.3d 603 (11th

Cir. 2007), abrogated by Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).

Ehrlich contends that the stipulated facts at his bench trial did not establish that he

acted with the requisite knowledge and asks that his conviction for violating 18

U.S.C. § 1028A(a)(1) be vacated in light of the Supreme Court’s recent decision in

Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).

      We review questions of statutory interpretation de novo. Hurtado, 508 F.3d

at 607 n.5. “[T]o support a conviction under § 1028A(a)(1), the government must

prove that the defendant: (1) knowingly transferred, possessed, or used; (2) the

means of identification of another person; (3) without lawful authority; (4) during

and in relation to a felony enumerated in § 1028A(c).” Id. at 606– 07. Previously,

we had held that the government did not need to prove that the defendant “knew

that the means of identification that he possessed and used belonged to another

actual person.” Id. at 610. The Supreme Court, however, recently has held that §



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1028A(a)(1) requires the government “to show that the defendant knew that the

means of identification at issue belonged to another person.” Flores-Figueroa, 129

S. Ct. at 1894. We may “depart from a prior panel decision based upon an

intervening Supreme Court decision only if that decision actually overruled or

conflicted with it.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004)

(quotation omitted). We remand for further proceedings where the district court

did not make findings of fact on an issue. See United States v. Barner, 441 F.3d

1310, 1322 (11th Cir. 2006).

      Because the Supreme Court has now held that the government must show

the defendant knew the identification he used belonged to another person to sustain

a conviction under § 1028A(a)(1), we vacate Ehrlich’s conviction on that count

and remand this case to the district court for it to determine in the first instance if

Ehrlich knew that the identification he used belonged to another person.

      VACATED and REMANDED.




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