                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    May 20, 2009
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-3323
 v.
                                             (D.C. No. 07-CR-10011-01-WEB-1)
                                                          (D. Kan.)
 PRUDENCIO CHAVEZ-QUINTANA,

          Defendant-Appellant.



                                ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and HOLMES, Circuit Judges.


      Prudencio Chavez-Quintana appeals his convictions under 18 U.S.C. §

1028A(a)(1) for aggravated identity theft. This statute imposes a mandatory

two-year term of imprisonment upon individuals convicted of certain enumerated

felonies if, “during and in relation to” the felony, the perpetrator “knowingly

transfers, possesses, or uses, without lawful authority, a means of identification of

another person.” 18 U.S.C. § 1028A(a)(1). After oral argument in this case, the

Supreme Court decided Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009),


      *
          This Order and Judgment is not binding precedent, except under the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.
holding that § 1028A requires the government to prove the defendant knew that

the means of identification he or she used, in fact, belonged to “another person.”

Because the government did not prove beyond a reasonable doubt that Mr.

Chavez-Quintana had this knowledge, we REVERSE his aggravated identity theft

convictions. 1

                                 BACKGROUND

      On November 1, 2006, Mr. Chavez-Quintana went to the Social Security

Administration office in Wichita, Kansas, to apply for a Social Security card and

account number. In support of the application, Mr. Chavez-Quintana provided his

alien registration card, Mexican birth certificate, and driver’s license. After

signing the Social Security card application, Mr. Chavez-Quintana handed a

counterfeit Social Security card with an account number ending in 0033 to the

Social Security service representative. The account number on the counterfeit

card did not belong to Mr. Chavez-Quintana but instead belonged to another

person, whom we call “B.K.” Mr. Chavez-Quintana stated that he had previously

worked under this account number, and he asked if his prior earnings could be

transferred to his new Social Security number. The service representative

recognized the card as fraudulent and told Mr. Chavez-Quintana she was keeping

the card. Social Security investigators later determined that Mr. Chavez-Quintana


      1
             The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We
exercise jurisdiction under 28 U.S.C. § 1291.

                                         -2-
had been using this card in order to maintain employment at a construction

company in Harvey County, Kansas. He also used the card to obtain health

insurance.

      Mr. Chavez-Quintana was charged with two counts of possession and use of

fraudulent documents as evidence of authorized stay or employment in the United

States, in violation of 18 U.S.C. § 1546(a) (Counts 1 and 7); three counts of

aggravated identity theft, in violation of 18 U.S.C. § 1028A (Counts 2, 4, and 10);

one count of possession of a counterfeit United States document, in violation of

18 U.S.C. § 1028(a)(6) (Count 3); three counts of misuse of a Social Security

number, in violation of 42 U.S.C. § 408(a)(7)(B) (Counts 5, 6, and 9); and one

count of making a false or fraudulent statement in a matter within the jurisdiction

of the United States, in violation of 18 U.S.C. § 1001(a)(3) (Count 8). The

district court later dismissed Counts 5, 6, and 8 as barred by the statute of

limitations. The case was tried before a jury.

      At the close of the government’s evidence, Mr. Chavez-Quintana moved for

a judgment of acquittal on the aggravated identity theft counts. He argued that

the government was required under 18 U.S.C. § 1028A to prove that he knew that

the means of identification he transferred, possessed, or used belonged to

“another person.” The district court denied his motion, finding that the

government was not required under § 1028A to prove that Mr. Chavez-Quintana

had this knowledge. Before the court instructed the jury, Mr. Chavez-Quintana

                                         -3-
raised a related challenge to a jury instruction that helped define the § 1028A

offenses, based on its statement that the government was not required to prove

this “another person” knowledge. See Aplee. Supp. App. at 160-61 (noting

objection to instruction insofar as it “states the government is not required to

show the defendant knew the means of the identification belonged to another

person”).

      The jury deliberated and found Mr. Chavez-Quintana guilty on all counts.

Mr. Chavez-Quintana moved for a judgment of acquittal or, in the alternative, for

a new trial. The district court denied the motion. Mr. Chavez-Quintana was

sentenced to twenty-five months’ imprisonment and two years of supervised

release. Mr. Chavez-Quintana now appeals the district court’s denial of his

motion for judgment of acquittal on the aggravated identity theft counts. 2


      2
             Mr. Chavez-Quintana is less than clear about the precise nature of his
appellate challenge. He states that “[d]ue to the fact that the government was not
required to prove the scienter element that Mr. Chavez knew the identification
belonged to another person, his [aggravated identity theft convictions] should be
reversed.” Aplt. Br. at 16. Mr. Chavez-Quintana does not elaborate, however, on
how the government’s reduced proof burden, or the district court’s role in
defining this burden, prejudiced him. Instead, he focuses on establishing that the
aggravated identity theft statute does, as a matter of law, have the referenced
“scienter element.” But Mr. Chavez-Quintana did challenge the sufficiency of the
evidence to establish the aggravated identity theft offenses. And the government
has read Mr. Chavez-Quintana’s appellate brief as attacking the sufficiency of the
evidence. See, e.g., Aplee. Br. at 18 (“[T]he district court’s denial of the
defendant’s motion for judgment of acquittal should be affirmed.”). Accordingly,
we are comfortable construing his claim to be that the district court erred in
denying his motion for acquittal because the government failed to prove beyond a
                                                                        (continued...)

                                         -4-
                                  DISCUSSION

      “This court reviews a denial of a motion for judgment of acquittal de novo,

viewing the evidence in the light most favorable to the government in determining

if there is substantial evidence from which a jury could find the defendant guilty

beyond a reasonable doubt.” United States v. Austin, 231 F.3d 1278, 1283 (10th

Cir. 2000). “Reversal is only appropriate if no rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” United

States v. Burkley, 513 F.3d 1183, 1190 (10th Cir.) (alteration and internal

quotation marks omitted), cert. denied, 128 S. Ct. 2979 (2008).

      The federal aggravated identity theft statute requires that:

             Whoever, during and in relation to any felony violation
             enumerated in subsection (c), knowingly transfers, possesses,
             or uses, without lawful authority, a means of identification of
             another person shall, in addition to the punishment provided
             for such felony, be sentenced to a term of imprisonment of 2
             years.

18 U.S.C. § 1028A(a)(1). In Flores-Figueroa, the Supreme Court held that “§

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

means of identification at issue belonged to another person.” 129 S. Ct. at 1894.

The Court found that as a matter of ordinary English grammar, “knowingly” is

naturally read as applying to all the subsequently listed elements of the crime. Id.


      2
       (...continued)
reasonable doubt that he knew the means of identification he used belonged to
“another person.”

                                        -5-
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.” Id. The Court found the

government’s enforceability concerns—that this “another person” knowledge

would be difficult to prove and, therefore, identity theft would be under-

punished—insufficient to outweigh the clarity of the text. Id. at 1893-94.

      After reviewing the evidence presented at trial, we conclude that the

government failed to prove beyond a reasonable doubt that Mr. Chavez-Quintana

knew that the means of identification that he used (namely, the Social Security

number ending in 0033) belonged to another person. The government essentially

concedes this lack of proof, since it makes no argument that the jury could have

found this knowledge based on the evidence presented at trial. 3 See United States

v. Godin, 534 F.3d 51, 62 (1st Cir. 2008) (reversing the defendant’s aggravated

identity theft conviction and finding that the government tacitly conceded there

was insufficient evidence by its failure to argue that the evidence proved the

defendant knew the Social Security number at issue belonged to another person).

      We are aware of no evidence that could demonstrate that Mr. Chavez-


      3
              The government stated in oral argument that proving this knowledge
in many cases is “impossible”; when illegal aliens buy fake documents on the
street, “they don’t know if that documentation belongs to a real person.” Oral
Argument at 21:35-22:38 (Sept. 23, 2008).

                                          -6-
Quintana knew the Social Security number that he used belonged to another

person; for example, the government makes no attempt to demonstrate how Mr.

Chavez-Quintana obtained the false Social Security number or whether he was

acquainted with B.K., the person whose Social Security number he was using.

See id. (noting that the government presented no evidence showing that the

defendant “knew the individual to whom the social security number belonged, or

somehow accessed that person’s information”). That such knowledge might have

been difficult to prove is of no moment. See Flores-Figueroa, 129 S. Ct. at 1893-

94 (noting that the concerns over the difficulties of proving this knowledge are

“insufficient to outweigh the clarity of the text”).

      In sum, we hold that a rational jury could not find beyond a reasonable

doubt that Mr. Chavez-Quintana knew that the Social Security number he used

belonged to another person.

                                   CONCLUSION

      For the foregoing reasons, we REVERSE Mr. Chavez-Quintana’s

convictions under 18 U.S.C. § 1028A for aggravated identity theft and REMAND

for proceedings consistent with this opinion.

                                                Entered for the Court


                                                Jerome A. Holmes
                                                Circuit Judge




                                          -7-
