                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                   FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                     ________________________ ELEVENTH CIRCUIT
                                                           Sept. 25, 2009
                            No. 09-10909                 THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                  D. C. Docket No. 08-20867-CR-CMA

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

ROSA VERONICA PEREZ,

                                                        Defendant-Appellant.


                      ________________________

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

                          (September 25, 2009)

Before HULL, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Rosa Veronica Perez appeals her conviction for aggravated identity theft in

Count 2 of the indictment. After review, we vacate Perez’s conviction and

sentence on Count 2.

      A grand jury charged Perez with one count of knowingly and falsely

representing that a social security number was assigned to her for the purpose of

obtaining an identification document issued by the State of Florida, in violation of

42 U.S.C. § 408(a)(7)(B) (Count 1), and one count of 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. § 1028(a)(1) (Count 2).1

      At a bench trial, the government presented the following stipulated facts.

Perez, who was working as a prostitute, received a fraudulent Texas birth

certificate and social security card in the name of Dana Renton from a pimp named

“Jit Money.” In 2006, Perez submitted these fraudulent documents to apply for

and obtain a Florida identification card. Dana Renton is a real person.

      Following the government’s presentation, Perez moved for a judgment of

acquittal on Count 2, the aggravated identity theft charge. Perez argued that the

government failed to present sufficient evidence that she knew that the

identification documents she used belonged to a real person. The district court,



      1
          Perez does not challenge her conviction on Count 1 for social security fraud.

                                                  2
relying on United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007), concluded

that it need not make a finding as to Perez’s knowledge and denied Perez’s motion.

In Hurtado, this Court held that § 1028A(a)(1) did not require the government to

prove that a defendant “knew that the means of identification that he possessed and

used belonged to another actual person.” Id. at 610. The district court found Perez

guilty, and Perez appealed.

      On May 4, 2009, shortly after Perez filed this appeal, the Supreme Court

issued a decision in Flores-Figueroa v. United States, 556 U.S. ___, ___, 129 S. Ct.

1886, 1894 (2009). Flores-Figueroa overruled Hurtado and held that the

government must show that the defendant knew the identification he used belonged

to another person to sustain a conviction under § 1028A(a)(1). Flores-Figueroa,

556 U.S. at ___, 129 S. Ct. at 1890, 1894.

      On appeal, Perez argues that the stipulated facts are not sufficient to prove

beyond a reasonable doubt that she knew the identification she had used belonged

to a real person and asks that her § 1028A(a)(1) conviction be vacated and

remanded. The government concedes error that is not harmless and agrees that

Perez’s conviction on Count 2 must be vacated. Accordingly, in light of Flores-

Figueroa, we vacate Perez’s § 1028A(a)(1) conviction and sentence on Count 2

and remand this case to the district court for the limited purpose of dismissing



                                          3
Count 2 of the indictment.

      VACATED AND REMANDED.




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