                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 08-1338
                                     ___________

United States of America,            *
                                     *
            Appellee,                *
                                     * Appeal from the United States
     v.                              * District Court for the
                                     * Southern District of Iowa.
Ezequiel Oronia-Vera, also known as  *
Ezequiel Oronia,                     *
                                     *
            Appellant.               *
                                ___________

                               Submitted: December 8, 2008
                                  Filed: May 18, 2009

                                     ___________

Before WOLLMAN, BYE, and RILEY, Circuit Judges.
                           ___________

RILEY, Circuit Judge.

       Ezequiel Oronia-Vera (Oronia-Vera) appeals his conviction for aggravated
identity theft, in violation of 18 U.S.C. § 1028A(a)(1), following a trial to the district
court on stipulated facts. We reverse.

I.     BACKGROUND
       On May 16, 2007, a grand jury returned a three-count indictment against
Oronia-Vera. Count one charged Oronia-Vera with fraud and misuse of documents,
in violation of 18 U.S.C. § 1546(a); count two charged him with misuse of a social
security number, in violation of 42 U.S.C. § 408(a)(7)(B); and count three charged
him with aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). Oronia-
Vera pled guilty to count one of the indictment, and count two was dismissed.

       Count three of the indictment proceeded to trial. Oronia-Vera waived his right
to a jury, and the parties agreed to submit the matter to the district court on briefs and
the following stipulated facts:

          1. On or about February 6, 2007, the defendant did present a
      Permanent Resident Card to his employer, Iowa Pre-Stressed Concrete
      (IPC), to represent that he was able to be lawfully employed. A copy of
      the document is marked Exhibit 1 and attached.
          2. The name on Exhibit 1, Ezequiel Oronia Vera, is in fact the
      defendant’s true birth name. . . .
          3. The date of birth reported on the Permanent Resident Card is the
      proper date of birth of Ezequiel Oronia Vera.
          4. The photo on Exhibit 1 is a photo of Ezequiel Oronia Vera.
          5. The A# (alien registration number) shown on Exhibit 1, A# XXX-
      XXX-980, is not assigned to Ezequiel Oronia Vera. It is instead the A#
      of another individual, a female Hispanic, 32 years of age, born in
      Mexico. This other individual has a date of birth and physical
      appearance unlike Ezequiel Oronia Vera.
          6. Ezequiel Oronia Vera knew that the Permanent Resident Card was
      not lawfully issued to him when he presented it to his employer. He also
      knew that the A# was not assigned to him.
          7. Ezequiel Oronia Vera had no knowledge of the person identified
      by the A# or even if the number was a proper number issued by the
      government.
          8. The government has no evidence to show that the defendant
      attempted to use or assume the identity of the person described by the A#
      except to the extent that the number issued to her is in fact displayed on
      the Permanent Resident Card.
          9. The A# is intended by the government to be a unique identifier of
      an individual in its records for purposes of documenting proper
      registration of aliens entitled to be employed in this country.
        10. The above events occurred in the Southern District of Iowa.




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       The district court declared, “The issue in this case is whether the word
knowingly [in 18 U.S.C. § 1028A(a)(1)] refers to the knowing use or possession or
transfer of the means of identification without [lawful] authority or whether the word
knowing[ly] means that the defendant knew that the means of identification belonged
to a real person.”

       Based on the stipulated facts, the district court found Oronia-Vera guilty of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). The district court
was persuaded by the reasoning of United States v. Montejo, 353 F. Supp. 2d 643, 650
(E.D. Va. 2005), aff’d, 442 F.3d 213 (4th Cir. 2006), cert. denied, 549 U.S. 879
(2006), which held a defendant’s conduct is punishable under § 1028A(a)(1) “whether
he knew that the means of identification in his unlawful possession belongs to
someone else or was false altogether.” The district court noted Montejo had been
cited favorably by the Eighth Circuit in United States v. Hines, 472 F.3d 1038, 1039
(8th Cir. 2007). The district court sentenced Oronia-Vera to 1 day imprisonment on
count one and 24 months imprisonment on count three, to be served consecutively.

II.   DISCUSSION
      Oronia-Vera appeals his conviction for aggravated identity theft in violation of
18 U.S.C. § 1028A(a)(1), which provides:

      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.

      The sole issue challenged on appeal is whether 18 U.S.C. § 1028A(a)(1)
requires a defendant to know that the means of identification in the defendant’s
unlawful possession belongs to another person. The Supreme Court definitively
answered this question in United States v. Flores-Figueroa, 556 U.S. __, __ S. Ct. __,


                                         -3-
No. 08-108, 2009 WL 1174852, at *7 (May 4, 2009). The Court concluded,
“§ 1028A(a)(1) requires the Government to show that the defendant knew that the
means of identification at issue belonged to another person.”

      Because the parties stipulated: (1) “Oronia[-]Vera had no knowledge of the
person identified by the A# [on the Permanent Resident Card in Oronia-Vera’s
unlawful possession] or even if the number was a proper number issued by the
government,” and (2) “[t]he government has no evidence to show that [Oronia-Vera]
attempted to use or assume the identity of the person described by the A#,” the district
court’s judgment with respect to count three of the indictment must be reversed.

III.   CONCLUSION
       We reverse the district court’s judgment on count three of the indictment.
                       ______________________________




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