                 IN THE SUPREME COURT OF THE STATE OF KANSAS

                                              No. 112,322

                                          STATE OF KANSAS,
                                              Appellee,

                                                     v.

                                     GUADALUPE OCHOA-LARA,
                                           Appellant.



                                   SYLLABUS BY THE COURT


        Defendant's prosecution for identity theft for using another person's Social
Security number to obtain employment was expressly preempted by the federal
Immigration Reform and Control Act of 1986.


        Review of the judgment of the Court of Appeals in 52 Kan. App. 2d 86, 362 P.3d 606 (2015).
Appeal from Johnson District Court; KEVIN P. MORIARTY, judge. Opinion filed September 8, 2017.
Judgment of the Court of Appeals affirming the district court is reversed. Judgment of the district court is
reversed.


        Rick Kittel, of Kansas Appellate Defender Office, was on the brief for appellant.


        Steven J. Obermeier, senior deputy district attorney, Stephen M. Howe, district attorney, and
Derek Schmidt, attorney general, were on the brief for appellee.


The opinion of the court was delivered by


        BEIER, J.: This companion case to State v. Garcia, 306 Kan. __, __ P.3d __ (No.
112,502, this day decided), and State v. Morales, 306 Kan. __, __ P.3d __ (No. 111,904,

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this day decided), involves defendant Guadalupe Ochoa-Lara's convictions on two counts
of identity theft.


       Ochoa-Lara's two convictions arose out of a single period of restaurant
employment. One conviction covered the portion of the period before a 2011 criminal
statute recodification went into effect; the other covered the portion of the period after the
recodification went into effect. Each count was based on Ochoa-Lara's use of Tiffany
McFarland's Social Security number to obtain the employment at the beginning of the
first period.


       A district court judge convicted Ochoa-Lara based on stipulated facts. Ochoa-
Lara's appeal to the Court of Appeals raised two issues: (1) whether the federal
Immigration Reform and Control Act of 1986 (IRCA) preempted the prosecution; and (2)
whether the two counts were multiplicitous. A Court of Appeals panel affirmed Ochoa-
Lara's convictions. See State v. Ochoa-Lara, 52 Kan. App. 2d 86, 362 P.3d 606 (2015).


       We granted Ochoa-Lara's petition for review of both issues. Because we decide
that IRCA preempts this prosecution and thus both of Ochoa-Lara's convictions must be
reversed, we do not reach the multiplicity claim.


                        FACTUAL AND PROCEDURAL BACKGROUND

       The State initially charged Ochoa-Lara with two counts of identity theft and one
count of making a false information. The two identity theft counts recited that Ochoa-
Lara had "obtain[ed], possess[ed] or use[d]" a Social Security number and a resident alien
card number belonging to another person during the entire time Ochoa-Lara was
employed at Longbranch Steakhouse. On the first count, the Social Security number
belonged to Tiffany McFarland; on the second, the resident alien card number belonged

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to Pierrie Lecuyer. The making of a false information count recited that Ochoa-Lara
"ma[de], generate[d], or distribute[d]" a false I-9 form, which is used to determine
employment eligibility under IRCA.


       Before trial, Ochoa-Lara filed two motions to dismiss. The first motion argued that
the first identity theft count should be dismissed because it alleged that Ochoa-Lara
violated K.S.A. 2011 Supp. 21-6107 between May 10, 2011, and December 6, 2011, and
the recodified statute was not effective until July 1, 2011. The second motion challenged
subject matter jurisdiction on all three counts, alleging that the State's prosecution was
preempted by federal immigration law.


       At the hearing on the motions, the second identity theft count and the making of a
false information count were dismissed after the State agreed they should be. The State
successfully amended the remaining identity theft count of the complaint to split it into
two counts, one under the recodified statute's predecessor provision and one under the
recodified statute. This amendment left only Ochoa-Lara's jurisdictional challenge to the
now-split identity theft count to be considered, and the district judge denied it.


       The parties stipulated to the following facts at trial:


       "1.     During November and December of 2011, Overland Park Police Department
       officers and DHS/ICE agents were attempting to contact Christian Ochoa-Lara at 9135
       Robinson, Apartment 2G, Overland Park, Johnson County, Kansas. At that location
       officers learned that the apartment was leased to Guadalupe Ochoa-Lara. Officers
       obtained a copy of the lease and determined Guadalupe Ochoa-Lara, the defendant, used
       a [S]ocial [S]ecurity number issued to another individual to lease the apartment. Officers
       contacted Tiffany McFarland, who is lawfully issued the [S]ocial [S]ecurity number used
       by Guadalupe Ochoa-Lara to rent the apartment, and she advised she had no knowledge
       her number was being used and did not consent to it being used. McFarland later reported

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       that she contacted the IRS and was notified that income had been reported under her
       [S]ocial [S]ecurity number which she reported was not earned by her.


               "2.     Officers determined that Guadalupe Ochoa-Lara was employed at the
       [Longbranch] Steakhouse in Lenexa, Johnson County, Kansas. Officers contacted
       personnel for [Longbranch] Steakhouse and confirmed that Guadalupe Ochoa-Lara did
       work at the Lenexa location from approximately May of 2011 to December of 2011.
       Officers reviewed the Form W-4 completed by Ochoa-Lara on May 10, 2011[,] in
       Lenexa, Johnson County, Kansas and observed he used the [S]ocial [S]ecurity number
       issued to McFarland to complete the form. Personnel for [Longbranch] Steakhouse
       confirmed a [S]ocial [S]ecurity number is required in order for individuals to be hired by
       their company and also for both federal and state tax withholding purposes.


               "3.     Investigators reported Guadalupe Ochoa-Lara does not have a [S]ocial
       [S]ecurity number lawfully issued to him and he used McFarland's number in order to
       gain employment."


       After reviewing these facts, the district judge convicted Ochoa-Lara on both
counts. Although the stipulated facts had mentioned that Ochoa-Lara used McFarland's
Social Security number to lease an apartment, the court's Journal Entry of Judgment
relied exclusively on Ochoa-Lara's employment. The judge handed down a concurrent 7-
month sentence on each count and granted 18 months' probation.


                                             DISCUSSION

       Our decision today in Garcia, 306 Kan. at __, slip op. at 19, holds that State
prosecutions such as the one in this case are expressly preempted by IRCA. Section
1324a(b)(5) of Title 8 of the United States Code (2012) provides that a federal I-9 form
for employment verification "and any information contained in" such a form "may not be
used for purposes other than for enforcement of" federal immigration law and certain
federal criminal statutes. This State prosecution for identity theft relied on the Social
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Security number Ochoa-Lara included in the I-9 to ensure employment eligibility under
federal law. Our Garcia holding recognized that this is exactly the situation Congress
intended to address and control under federal law. Garcia dictates the outcome of this
case and compels a decision in Ochoa-Lara's favor, reversing all of his convictions.


       We pause briefly, however, to address preservation of the preemption issue in the
circumstances of this case.


       Ochoa-Lara advanced a preemption challenge in the district court through his
pretrial motion to dismiss on subject matter jurisdiction grounds. And we are not limited
to the precise preemption theories argued by a party when we analyze a challenge. See
Garcia, 306 Kan. at __, slip op. at 10 (citing Hillman v. Maretta, 569 U.S. __, 133 S. Ct.
1943, 1954, 186 L. Ed. 2d 43 [2013] [presence of express preemption clause does not
necessarily end court's preemption inquiry]; Geier v. American Honda Motor Co., 529
U.S. 861, 869, 120 S. Ct. 1913, 146 L. Ed. 2d 914 [2000] [express preemption provision
does not bar ordinary working of conflict preemption principles]; Hughes v. Talen
Energy Mktg., LLC, 578 U.S. __, 136 S. Ct. 1288, 1301, 194 L. Ed. 2d 414 [2016]
[Thomas, J., concurring in part and concurring in the judgment] [state law could have
been preempted "based on the statute alone"; majority unnecessarily relies on principles
of implied preemption]; United States v. Supreme Court of New Mexico, 839 F.3d 888,
912, 914-15 [10th Cir 2016], petition for cert. filed June 5, 2017 [facial, as-applied
preemption claims legal in nature; judicial estoppel doctrine does not apply to limit party
to label first attached to challenge; "labels the parties attach to claims are not
determinative"]). Compare Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88, 109,
112 S. Ct. 2374, 120 L. Ed. 2d 73 (1992) (O'Connor, J., plurality) (state law impliedly
preempted by Occupational Safety and Health Act), with Gade, 505 U.S. at 109-14
(Kennedy, J., concurring in part and concurring in the judgment) (would have found state
law expressly preempted). In Garcia itself, for example, defense counsel emphasized
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field preemption rather than express preemption at oral argument before this court. But
our decision ultimately relied upon IRCA's express preemption clause. Garcia, 306 Kan.
at __, slip op. at 19. Ochoa-Lara adequately preserved the preemption claim.


                                         CONCLUSION

       In reliance on Garcia, 306 Kan. at __, slip op. at 19, we reverse defendant
Guadalupe Ochoa-Lara's two convictions on identity theft. The prosecution based on use
of a Social Security number belonging to another person to obtain employment was
expressly preempted by 8 U.S.C. § 1324a(b)(5).


       JOHNSON, J., not participating.
       MICHAEL J. MALONE, Senior Judge, assigned.1


                                            ***


       LUCKERT, J., concurring: I concur in the majority's holding that 8 U.S.C.
§ 1324a(b)(5) (2012) preempts the prosecution of Guadalupe Ochoa-Lara for identity
theft under the circumstances of this case. But I reach this holding through a different
analytical path than the one used by the majority. I respectfully disagree with the
majority's conclusion that express preemption applies, although I would nevertheless hold
that Kansas' identity theft statute intrudes into a field wholly occupied by federal law. I
would further hold that a conflict exists between the immigration policy established by
Congress and Kansas' identity theft statute when it is applied in a case, as here, that is
dependent upon the use of information derived from the employment verification process



1
 REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 112,322
vice Justice Johnson under the authority vested in the Supreme Court by K.S.A. 20-2616.
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established by the Immigration Reform and Control Act of 1986, Pub. L. No. 99-603, and
the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq. (2012). In other words, I
would apply the doctrines of field and conflict preemption, rather than express
preemption for the reasons more fully discussed in my concurring opinion in State v.
Garcia, 306 Kan.___, ___ P.3d ___ (No. 112,502, this day decided), slip op. at ___.



                                           ***

       BILES, J., dissenting: Consistent with my position in State v. Garcia, 306
Kan.___, ___ P.3d ___ (No. 112,502, this day decided), slip op. at 24, I respectfully
dissent from the majority's result and reasoning.


                                           ***


       STEGALL, J., dissenting: Consistent with my position in State v. Garcia, 306
Kan.___, ___ P.3d ___ (No. 112,502, this day decided), slip op. at 26, I respectfully
dissent from the majority's result and reasoning.




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