          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                 April 21, 2009
                                No. 08-10255
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

EFREN MARTINEZ

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                           USDC No. 3:07-CR-203-1


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Efren Martinez appeals following his guilty plea convictions for conspiracy
to possess, produce, and transfer false identification documents and to possess
document-making implements (Count 1); unlawful transfer of false identification
documents (Count 2); unlawful possession and aiding and abetting unlawful
possession of false identification documents with intent to use and transfer
unlawfully (Count 4); unlawful possession and aiding and abetting unlawful



      *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-10255

possession of document-making implements to produce false identification
documents (Count 5); and aggravated identity theft (Count 6).
      Martinez argues that the district court erred by applying the nine-level
enhancement under U.S.S.G. § 2L2.1(b)(2)(C) on the ground that Counts 1, 2, 4,
and 5 involved 100 or more documents. Because Martinez did not object on this
basis in the district court, this issue is reviewed for plain error only. See United
States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962
(2009). At Martinez’s sentencing, a special agent of Immigrations and Customs
Enforcement testified that Martinez’s apartment contained, among other items
used to create false identification documents, over 100 sheets of stock paper
simulating green cards and social security cards. The district court did not
commit    plain   error   in   applying   the   nine-level   enhancement     under
§ 2L2.1(b)(2)(C). See United States v. Salazar, 70 F.3d 351, 351-52 (5th Cir.
1995).
      Martinez also argues that the district court erred in finding that a factual
basis existed to support his guilty plea as to aggravated identity theft under 18
U.S.C. § 1028A. Martinez contends that he never admitted knowing that the
means of identification he was using belonged to another person. Martinez
argues that such knowledge is an element of § 1028A. Because this argument
is raised for the first time on appeal, plain error review applies. See United
States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006).
      Section 1028A imposes a consecutive two-year sentence on anyone who
during particular enumerated offenses “knowingly transfers, possesses, or uses,
without lawful authority, a means of identification of another person.”
§ 1028A(a)(1). Martinez argues that the word “knowingly” modifies not only the
phrase “transfers, possesses, or uses” but also the phrase “a means of
identification of another person,” such that the Government was required to
prove that a defendant knew that the means of identification belonged to



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another person. Martinez alternatively argues that § 1028A(a)(1) is ambiguous
and that it should be interpreted in his favor pursuant to the rule of lenity.
      We have not considered this issue. The First, Ninth, and D.C. Circuits
have held that the Government must prove under § 1028A that the defendant
actually knew that the means of identification belonged to another person.
United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008); United States v.
Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008); United States v. Villanueva-
Sotelo, 515 F.3d 1234, 1246 (D.C. Cir. 2008), petition for cert. filed (Nov. 7, 2008)
(No. 08-622). The Eighth, Eleventh, and Fourth Circuits have reached the
opposite conclusion. United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th
Cir. 2008), petition for cert. filed (July 15, 2008) (No. 08-5316); United States v.
Hurtado, 508 F.3d 603, 609, 610 & n.8 (11th Cir. 2007), cert. denied, 128 S. Ct.
2903 (2008); United States v. Montejo, 442 F.3d 213, 216-17 (4th Cir. 2006). The
Supreme Court has granted certiorari on this issue in Flores-Figueroa v. United
States, 129 S. Ct. 457 (2008). “An error is considered plain, or obvious, only if
the error is clear under existing law.” United States v. Salinas, 480 F.3d 750,
756 (5th Cir. 2007). Because the law is not currently settled, any error by the
district court was not clear or obvious. See id. at 759.
      AFFIRMED.




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