NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 31 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-10319
Plaintiff - Appellant, D.C. No. 3:13-cr-00662-RS
v.
MEMORANDUM*
CLIFFORD D. BERCOVICH and
HOWARD WEBBER,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
The government appeals from the district court’s order dismissing the
aggravated identity counts against Clifford D. Bercovich and Howard Webber
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“appellees”). We have jurisdiction under 18 U.S.C. § 3731 and 28 U.S.C. § 1291,
and we reverse and remand.
The district court dismissed the aggravated identity theft counts brought
under 18 U.S.C. § 1028A, because the indictment failed to allege that appellees
transferred, possessed, or used another person’s means of identification without
that person’s consent. We later held in United States v. Osuna-Alvarez, 788 F.3d
1183 (9th Cir. 2015) (per curiam), that “regardless of whether the means of
identification was stolen or obtained with the knowledge and consent of its owner,
the illegal use of the means of identification alone violates § 1028A.” Id. at 1185-
86. In light of our intervening decision in Osuna-Alvarez, we reverse the district
court’s order dismissing the section 1028A counts, and remand for further
proceedings.
REVERSED and REMANDED.
2 14-10319