                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 10-4305


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

LANDY DIAZ,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       Glen E. Conrad, Chief
District Judge. (7:07-cr-00003-gec-mfu-1)


Submitted:    June 17, 2011                   Decided:   July 1, 2011


Before KEENAN and WYNN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Allegra M. C. Black,
Assistant Federal Public Defender, Christine Madeleine Lee,
Research and Writing Attorney, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Roanoke, Virginia, for Appellant.  Timothy J. Heaphy,
United States Attorney, Roanoke, Virginia, Jean B. Hudson,
Assistant United States Attorney, J. Wells Harrell, Third Year
Law   Student,   OFFICE   OF    THE   UNITED  STATES  ATTORNEY,
Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               This case arose out of a series of fraudulent credit

card and debit card transactions using credit and debit card

numbers stolen from restaurant and retail store customers via an

electronic skimming device.                A jury convicted Landy Diaz (Diaz)

of     one    count        of     conspiracy       to   possess     fifteen     or    more

unauthorized access devices with intent to defraud, in violation

of 18 U.S.C. § 371, one count of possession of fifteen or more

unauthorized access devices with intent to defraud, in violation

of 18 U.S.C. § 1029(a)(1), one count of possession of access

device making equipment with intent to defraud, in violation of

18 U.S.C. § 1029(a)(4), and three counts of aggravated identity

theft, in violation of 18 U.S.C. § 1028A(a)(1).                         Additionally,

Diaz     pleaded      guilty        to   one    count     of   using    one     or    more

counterfeit access devices with intent to defraud, in violation

of 18 U.S.C. § 1029(a)(1).

               On appeal, Diaz only challenges his convictions on the

three    counts       of    aggravated        identity    theft.       The    aggravated

identity theft statute imposes a mandatory consecutive two-year

prison       term   upon        “[w]hoever,    during    and   in    relation    to   any

felony violation” of certain predicate crimes (e.g., fraud and

related activity in connection with access devices, in violation

of 18 U.S.C. § 1029(a)(1)), “knowingly transfers, possesses, or

uses, without lawful authority, a means of identification of

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another person . . . .”             18 U.S.C. § 1028A(a)(1).              Diaz argues

that his three aggravated identity theft convictions should be

vacated and his case remanded for a new trial on those counts,

because the district court did not specifically instruct the

jury that, in order to convict him of aggravated identity theft,

the government bore the burden of proving beyond a reasonable

doubt that he knew the means of identification at issue, in

fact, belonged to another person.                     According to Diaz, he was

entitled to such an instruction under Flores-Figueroa v. United

States, 129 S. Ct. 1886 (2009).                 See id. at 1894 (“We conclude

that    § 1028A(a)(1)      requires       the   Government      to    show   that   the

defendant    knew     that    the    means       of    identification        at   issue

belonged to another person.”).                  Diaz also points out that, at

the time of his trial in this case, Fourth Circuit precedent

expressly    held   that     § 1028A(a)(1)’s          knowledge      requirement    did

not apply to the phrase “of another person.”                      See United States

v.     Montejo,   442   F.3d    213,       217     (4th    Cir.      2006)    (holding

“defendant need not be aware of the actual assignment of the

numbers to an individual to have violated [§ 1028A(a)(1)]”).

            Because     Diaz        did     not       request        an   instruction

specifically stating that, in order to convict him of aggravated

identity theft, the government bore the burden of proving beyond

a reasonable doubt that he knew the means of identification at

issue belonged to another person, we review the district court’s

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failure to give such an instruction for plain error.                               Fed. R.

Crim.    P.   52(b);   United       States       v.   Olano,     507   U.S.    725,     732

(1993).       Under the plain error test set forth in Olano, Diaz

must initially establish: (1) there was error; (2) the error was

plain;    and   (3)    the    error       affected       his    substantial        rights.

Olano, 507 U.S. at 732.             Even if Diaz establishes each of these

three prongs, Olano requires that before we may exercise our

discretion to correct the error, we must be convinced that the

error    “seriously    affect[s]          the   fairness,       integrity     or    public

reputation of judicial proceedings.”                     Id. (internal quotation

marks omitted) (alteration in original).

              Reviewing      the     record       below,       including      the      jury

instructions as to the aggravated identity theft counts and the

evidence presented at trial, we conclude that Diaz has failed to

establish he is entitled to appellate relief with respect to his

three    convictions      for      aggravated         identity    theft.        Assuming

arguendo that Diaz can establish the first two prongs of Olano’s

plain error test, as the government concedes he has, Diaz has

not   carried    his   burden       of    establishing         Olano’s   third      prong,

i.e., that his substantial rights were affected.                       Id.

              Specifically,        Diaz    has    not     carried      his    burden    of

establishing that the district court’s failure to instruct the

jury that, in order to convict him of aggravated identity theft,

the government bore the burden of proving beyond a reasonable

                                            4
doubt that he knew the means of identification at issue belonged

to another person affected his substantial rights.                Although, at

the time of Diaz’s trial in this case, Fourth Circuit precedent

expressly     held   that    § 1028A(a)(1)’s   knowledge    requirement    did

not apply to “of another person,” id.; see Montejo, 442 F.3d at

217-18, the district court did not so instruct the jury.                    In

fact,   the    district       court’s   instructions   on   the     aggravated

identity theft counts simply tracked § 1028A(a)(1)’s statutory

language, which language left ample room for the jury to have

made the very finding Diaz claims the jury needed to make in

order to convict him of aggravated identity theft.                Cf. Flores-

Figueroa v. United States, 129 S. Ct. at 1890 (“In ordinary

English, where a transitive verb has an object, listeners in

most contexts assume that an adverb (such as knowingly) that

modifies the transitive verb tells the listener how the subject

performed the entire action, including the object as set forth

in the sentence.”).          Thus, Diaz cannot establish that the jury

actually convicted him based upon an erroneous understanding of

§ 1028A(a)(1)’s knowledge requirement, which he needed to do in

order to establish that his substantial rights were affected by

the alleged error.          See United States v. Hastings, 134 F.3d 235,

243-44 (4th Cir. 1998) (under Olano’s third prong of plain error

test, defendant bears the burden of establishing error actually

resulted in his conviction).

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            Finally, assuming arguendo that Diaz can establish the

first three prongs of Olano’s plain error test, we would decline

to exercise our discretion to correct the error.                          The record

establishes that the evidence presented to the jury showing that

Diaz knew that the means of identification at issue with respect

to his aggravated identity theft convictions belonged to another

person was overwhelming and uncontroverted.                       Accordingly, the

district court’s failure to give the instruction at issue does

not    seriously      affect     the     fairness,      integrity         or    public

reputation      of   judicial    proceedings.          See   Johnson      v.    United

States, 520 U.S. 461, 470 (1997) (no basis for concluding error

in    failing   to   submit     element       of   offense   to    jury    seriously

affected fairness, integrity or public reputation of judicial

proceedings, because evidence in support of such element was

overwhelming and essentially uncontroverted).

            For the foregoing reasons, we affirm the judgment.                      We

dispense     with    oral     argument    because      the    facts       and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                               AFFIRMED




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