                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________          FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-16343         ELEVENTH CIRCUIT
                                                        JUNE 23, 2010
                           Non-Argument Calendar
                                                         JOHN LEY
                         ________________________
                                                          CLERK

                      D. C. Docket No. 08-20202-CR-JAL

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

STEVEN EHRLICH,

                                                            Defendant-Appellant.


                         ________________________

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

                                (June 23, 2010)

Before DUBINA, Chief Judge, CARNES and MARCUS, Circuit Judges.

PER CURIAM:

     This is Steven Ehrlich’s second appeal of his conviction for aggravated
identity theft committed in connection with the predicate crime of access device

fraud, in violation of 18 U.S.C. §§ 1028A(a)(1) and 1029(a)(2). In his earlier

appeal, we vacated Ehrlich’s conviction for aggravated identity theft and remanded

the case for the district court to determine, in light of Flores-Figueroa v. United

States, 556 U.S. ___, ___, 129 S. Ct. 1886, 1888-89 (2009), whether Ehrlich knew

that the identification he used belonged to another person. See United States v.

Ehrlich, 334 F. App’x. 216, 217 (11th Cir. 2009) (“Ehrlich I”). On remand, the

district court, at a bench trial, determined that the stipulated facts established the

requisite knowledge element, and re-adjudicated Ehrlich guilty of aggravated

identity theft under § 1028A(a)(1). On appeal, Ehrlich makes the following two

arguments: (1) the district court erred by failing to dismiss sua sponte his

§ 1028A(a)(1) charge because the government waived its opportunity to prove the

knowledge element by failing to argue, at the first bench trial, that the stipulated

facts established that element; and (2) evidence presented at the trial on remand

was insufficient to establish the knowledge element.

                                            I.

      Ehrlich first argues that the government waived the opportunity to prove the

knowledge element for aggravated identity theft under 18 U.S.C. § 1028A(a)(1).

The basis for that waiver, according to Ehrlich, is the fact that the government did



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not argue at the first bench trial that the stipulated facts established the knowledge

element. Ehrlich does not assert that this court’s mandate in Ehrlich I was

unlawful, but rather, he contends that the mandate did not address, and therefore

did not supplant, the doctrine of waiver. Finally, while he concedes that he did not

raise before the district court his arguments concerning waiver, he contends that

the district court, on remand, nevertheless committed plain error by not sua sponte

dismissing the § 1028A(a)(1) charge on the basis of waiver.

      We review de novo the district court’s compliance with our mandate. United

States v. Amedeo, 487 F.3d 823, 829 (11th Cir. 2007). “The mandate rule is simply

an application of the law of the case doctrine,” that “operates to create efficiency,

finality, and obedience within the judicial system so that an appellate decision

binds all subsequent proceedings in the same case.” Id. at 829-30 (internal

quotation marks and alterations omitted).

      “Accordingly, when acting under an appellate court’s mandate, a district

court cannot vary it, or examine it for any other purpose than execution; or give

any other or further relief; or review it, even for apparent error, upon a matter

decided on appeal; or intermeddle with it, further than to settle so much as has been

remanded.” Id. at 830 (internal quotation marks omitted). Finally, “[t]his court

has recognized three exceptions to the mandate rule: (1) a subsequent trial



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produces substantially different evidence, (2) controlling authority has since made

a contrary decision of law applicable to that issue, or (3) the prior appellate

decision was clearly erroneous and would work manifest injustice.” Id. (internal

quotation marks and alteration omitted).

      In this case, we conclude that the mandate rule forecloses Ehrlich’s

arguments concerning waiver. Specifically, our mandate in Ehrlich I, directing the

district court to determine whether the stipulated facts established the knowledge

element required to sustain Ehrlich’s conviction under § 1028A(a)(1), effectively

gave the government another opportunity to prove that element. Accordingly,

Ehrlich’s true bone of contention is not with the district court’s undertakings on

remand, but rather with our mandate in Ehrlich I. Ehrlich does not, and cannot,

challenge this mandate on appeal. Further, we conclude that none of Ehrlich’s

other arguments on appeal concerning this issue have merit.

                                           II.

      On the merits, Ehrlich argues that the evidence was insufficient as a matter

of law to prove the knowledge element for his conviction under 18 U.S.C.

§ 1028A(a)(1). Specifically, he asserts that, under Flores-Figueroa v. United

States, the government, in order to prove the knowledge element circumstantially,

needed to provide evidence of the manner in which he obtained his victim’s



                                           4
identification information. Additionally, he asserts that the district court’s finding

of the knowledge element based on his use of the victim’s identification to obtain

various lines of credit amounted to speculation because a person successfully may

obtain credit based on a completely fictitious identity. Finally, he attempts to

distinguish United States v. Holmes, 595 F.3d 1255 (11th Cir. 2010), on the ground

that, in that case, the defendant, over a period of years, submitted the victim’s

identification information to rigorous governmental verification processes. Id. at

1257.

        We review de novo the sufficiency of the evidence to uphold a conviction.

See United States v. Tampas, 493 F.3d 1291, 1297 (11th Cir. 2007). “We will not

reverse a conviction for insufficient evidence in a non-jury trial unless, upon

reviewing the evidence in the light most favorable to the government, no

reasonable trier of fact could find guilt beyond a reasonable doubt.” United States

v. Schaltenbrand, 930 F.2d 1554, 1560 (11th Cir. 1991). Additionally, “[t]he

evidence may be sufficient even if it does not exclude every reasonable hypothesis

of innocence.” Id.

        To establish a violation of § 1028A(a)(1), “the government must prove that

the defendant: (1) knowingly transferred, possessed, or used; (2) the means of

identification of another person; (3) without lawful authority; (4) during and in



                                           5
relation to a felony enumerated in § 1028A(c).” United States v. Hurtado, 508

F.3d 603, 606-07 (11th Cir. 2007) (footnote omitted), abrogated on other grounds

by Flores-Figueroa, 556 U.S. ___, 129 S. Ct. 1886. Moreover, 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.” 556 U.S. at ___, 129 S. Ct. at 1894.

      In Holmes, we gave some guidance as to proof of the knowledge element. In

that case, evidence at trial showed, among other things, that the defendant used the

victim’s identification information to obtain a line of credit to purchase a car. 595

F.3d at 1256-57. Reviewing Holmes’s sufficiency-of-the-evidence challenge as to

the knowledge element, we held, that “a reasonable jury could have found that [the

defendant] would not have sought credit using [the victim’s] personal information

if [the defendant] were not confident that [the victim] likely had an actual credit

history.” Id. at 1258.

      Additionally, in United States v. Gomez-Castro, we clarified that Holmes

“establishes that the government can rely on circumstantial evidence about an

offender’s misuse of a victim’s identity to prove the offender knew the identity

belonged to a real person.” ___ F.3d ___, ___, No. 09-12557 (11th Cir. May 13,

2010). Further, we noted that Flores-Figueroa’s discussion of the ease of proving



                                           6
the knowledge element based on evidence of how the defendant obtained the

victim’s identification information “does not foreclose the possibility of proving

knowledge in a more difficult case.” Id. at ___.

      Here, we conclude from the record that sufficient evidence supported the

district court’s finding concerning the knowledge element. Notably, the stipulated

facts established that Ehrlich successfully used his victim’s identification to obtain

fairly large amounts of credit on various occasions.

      For the above-stated reasons, we affirm Ehrlich’s conviction.

      AFFIRMED.




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