             Case: 15-13427   Date Filed: 06/20/2016   Page: 1 of 7


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-13427
                           Non-Argument Calendar
                         ________________________

                 D.C. Docket No. 6:14-cr-00221-RBD-DAB-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

JAIME TOVAR-MONTOYA,
a.k.a. Jaime Albeiro Montoya,
a.k.a. Jaime Albeiro Tovar Montoya,
a.k.a. Jaime Albeiro Tobar Montoya,
a.k.a. Rober Stevens,
a.k.a. Jimmy Tobar Diaz,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                        ________________________

                                (June 20, 2016)
              Case: 15-13427      Date Filed: 06/20/2016   Page: 2 of 7


Before WILSON, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

      Jaime Tovar-Montoya appeals his jury convictions for two counts of falsely

representing himself as a United States citizen, in violation of 18 U.S.C. § 911; one

count of making a false statement in an application for a United States passport, in

violation of 18 U.S.C. § 1542; and two counts of aggravated identity theft, in

violation of 18 U.S.C. § 1028A(a)(1). He argues that the evidence offered at his

trial was insufficient to support his convictions. After a thorough review of the

record and careful consideration of the parties’ briefs, we affirm.

                          I.     STANDARD OF REVIEW

      We review de novo whether the evidence was sufficient to sustain a criminal

conviction, “viewing the evidence in the light most favorable to the [G]overnment,

and drawing all reasonable factual inferences in favor of the jury’s verdict.”

United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The evidence is

sufficient “if any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” See United States v. Doe, 661 F.3d 550,

560 (11th Cir. 2011) (internal quotation marks omitted). Thus, “it is not enough

for a defendant to put forth a reasonable hypothesis of innocence, because the issue

is not whether a jury reasonably could have acquitted but whether it reasonably




                                           2
               Case: 15-13427      Date Filed: 06/20/2016     Page: 3 of 7


could have found guilt beyond a reasonable doubt.” Jiminez, 564 F.3d at 1285

(internal quotation marks omitted).

                                   II.    DISCUSSION

      To sustain Tovar-Montoya’s convictions under 18 U.S.C. §§ 911, 1542, and

1028A(a)(1), respectively, the evidence must have been sufficient to allow a

reasonable jury to find that Tovar-Montoya: (1) twice “falsely and willfully

represent[ed] himself to be a [U.S.] citizen”; (2) “willfully and knowingly [made a]

. . . false statement in an application for a [U.S.] passport with intent to induce . . .

the issuance of a passport”; and (3) on two occasions, “during and in relation to

any felony enumerated in [18 U.S.C. § 1028A(c)], knowingly . . . use[d], without

lawful authority, a means of identification of another person.” See 18 U.S.C. §§

911, 1542, 1028A(a)(1). Enumerated felonies in § 1028A(c) include falsely

representing oneself as a U.S. citizen and making a false statement in a U.S.

passport application. See 18 U.S.C. §§ 1028A(c)(2), (c)(7).

      At trial, the Government argued that Tovar-Montoya used the birth

certificate of a U.S. citizen, O.C., to obtain a State of Florida identification card in

O.C.’s name. The Government also claimed that Tovar-Montoya applied for a

U.S. passport using the identification card, O.C.’s social security number, and

O.C.’s date of birth. All of Tovar-Montoya’s convictions were based on his




                                            3
               Case: 15-13427     Date Filed: 06/20/2016    Page: 4 of 7


improper use of O.C.’s personal information in obtaining the identification card

and applying for the passport.

      On appeal, Tovar-Montoya asserts that the evidence offered at trial was

insufficient to support any of his convictions because it did not show that he was

the person who obtained the identification card and applied for the passport. He

also specifically challenges his identity theft convictions. He claims that the

evidence was insufficient to prove (1) that he used O.C.’s information without

lawful authority, (2) that O.C. was a real person, or (3) that he knew O.C. was a

real person. We address each argument in turn.

   A. Sufficiency Challenge to All Convictions

      Taking the evidence in the light most favorable to the Government, “a

reasonable trier of fact” could find that Tovar-Montoya was the person who

obtained the Florida identification card and applied for the U.S. passport. See

Jiminez, 564 F.3d at 1284–85 (internal quotation mark omitted). Tovar-Montoya

was pictured on the identification card, indicating that he went to the Florida office

that distributes identification cards, applied for the card, and had his picture taken

for the card. In addition, the identification card and a photograph of Tovar-

Montoya were submitted with the passport application, and the passport agent who

processed the application testified that every time an individual applies for a

passport she visually verifies that the individual is the same person pictured in the


                                           4
                Case: 15-13427        Date Filed: 06/20/2016       Page: 5 of 7


documents accompanying the application. Based on this evidence, a reasonable

jury could have found that the person who applied for the passport was the same

person pictured on the identification card and the submitted photograph—Tovar-

Montoya.

   B. Specific Sufficiency Challenges to Identity Theft Convictions

       Each of Tovar-Montoya’s specific challenges to his identity theft

convictions also fails. First, the evidence was sufficient to prove that he used

O.C.’s identity “without lawful authority.” See 18 U.S.C. § 1028A(a)(1). Lack of

lawful authority can be established by showing (1) that the defendant did not have

permission to use the victim’s identity or (2) that the defendant used the victim’s

means of identification for an unlawful purpose. See United States v. Zitron, 810

F.3d 1253, 1260 (11th Cir. 2016) (per curiam). The evidence supports a finding

that Tovar-Montoya used O.C.’s identity for an unlawful purpose. We must

uphold Tovar-Montoya’s convictions for falsely representing himself to be a U.S.

citizen and making a false statement in a U.S. passport application.1 And, the

evidence shows that Tovar-Montoya used a means of identification belonging to

O.C.—his date of birth and social security number—in committing those offenses.

See Doe, 661 F.3d at 561. Therefore, based on the evidence put forth at trial, “a


       1
          Tovar-Montoya solely challenges those convictions on the ground that he did not
personally obtain the Florida identification card or apply for the passport. As discussed above,
that challenge fails. Thus, we must affirm the convictions.
                                                5
               Case: 15-13427     Date Filed: 06/20/2016     Page: 6 of 7


reasonable trier of fact” could find that Tovar-Montoya used O.C.’s identity for an

unlawful purpose and thus “without lawful authority.” See Jiminez, 564 F.3d at

1284–85 (internal quotation mark omitted); Zitron, 810 F.3d at 1260.

      Second, the evidence was sufficient to show that O.C. is an actual person.

See United States v. Gomez-Castro, 605 F.3d 1245, 1248 (11th Cir. 2010)

(acknowledging that, under § 1028A, the Government must prove that the

defendant used the identity of a “real person”). The Government introduced into

evidence a fingerprint card for O.C. that was created by the Federal Bureau of

Investigation. Furthermore, we have found that, “in the context of government-

issued identification . . . it is reasonable to conclude . . . that the government

routinely obtains an applicant’s identity to verify the authenticity of that identity.”

See United States v. Philidor, 717 F.3d 883, 885 (11th Cir. 2013) (per curiam)

(internal quotation marks omitted); Gomez-Castro, 605 F.3d at 1249. Accordingly,

the State of Florida’s issuance of an identification card to Tovar-Montoya based on

O.C.’s identifying information provides a reasonable ground for finding that the

information was “associated with [a] real [person].” See Philidor, 717 F.3d at

885–86.

      Finally, the evidence also sufficiently demonstrates that Tovar-Montoya

knew that O.C. was an actual person. See Flores-Figueroa v. United States, 556

U.S. 646, 657, 129 S. Ct. 1886, 1894 (2009) (holding that “§ 1028A(a)(1) requires


                                            6
              Case: 15-13427     Date Filed: 06/20/2016   Page: 7 of 7


the Government to show that the defendant knew that the means of identification at

issue belonged to another person”). “A reasonable jury . . . could have found that

[Tovar-Montoya]’s willingness to subject [O.C.’s identifying information]

repeatedly to government scrutiny established that []he knew, all along, that the

[information] belonged to a real person.” See United States v. Holmes, 595 F.3d

1255, 1258 (11th Cir. 2010) (per curiam). Said differently, “a reasonable jury

could have found that [Tovar-Montoya] would not have sought [an identification

card and passport] using [O.C.]’s personal information if [Tovar-Montoya] were

not confident that” O.C. was a real person. See id. This is underscored by the fact

that Tovar-Montoya applied for a driver’s license or identification card eleven

times from 1996 until the time of the offenses at issue, demonstrating that he was

aware of the verification procedures associated with the identification card

application process.

                                III.   CONCLUSION

      For the foregoing reasons, the evidence was sufficient to sustain all of

Tovar-Montoya’s convictions.

      AFFIRMED.




                                          7
