                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        March 27, 2008
                         UNITED STATES COURT OF APPEALS
                                                                     Elisabeth A. Shumaker
                                    TENTH CIRCUIT                        Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 07-6059
 VICTOR WAYNE STEAVESON,                                (D.C. No. CR-06-155-H)
                                                           (W. D. Oklahoma)
           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BRISCOE, McKAY, and McCONNELL, Circuit Judges.



       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore,

submitted without oral argument.

       Defendant Victor Steaveson was convicted by a jury of conspiracy to commit

access device fraud, in violation of 18 U.S.C. § 371, and aggravated identity theft, in



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
violation of 18 U.S.C. § 1028A(a)(1), in connection with his participation in a counterfeit

check operation. Following the district court’s entry of judgment, Steaveson filed an

appeal challenging the propriety of his aggravated identity theft conviction. After

briefing in this appeal was complete, but prior to oral argument, this court issued its

decision in United States v. Tatum, — F.3d —, 2008 WL 554818 (10th Cir. Mar. 3,

2008), holding that counterfeit checks and account numbers printed on counterfeit checks

are not “access devices” within the meaning of that term as defined in 18 U.S.C. §

1029(e)(1). The United States has now filed a motion conceding that, in light of Tatum,

Steaveson was not charged with a cognizable federal offense. Specifically, the

government concedes “that since counterfeit checks are not access devices for purposes of

18 U.S.C. § 1029, Steaveson should not have been charged with conspiracy to commit

access device fraud, in violation of 18 U.S.C. § 371 and such charge could not be a

predicate offense for aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).”

Motion for Remand at 2. As a result, the United States seeks a remand of Steaveson’s

case with directions to vacate his convictions. After examining the record on appeal in

this case, we agree with the government’s assessment of Tatum and its effect upon

Steaveson’s convictions.




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      Accordingly, we GRANT the government’s motion and REMAND this case to the

district court with directions to VACATE Steaveson’s convictions and sentence and

DISMISS the case against him.


                                              Entered for the Court


                                              Mary Beck Briscoe
                                              Circuit Judge




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