United States v. Miranda-Lopez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-50123
Plaintiff-Appellee,
v.  D.C. No.
CR-06-00706-L
ROBERTO MIRANDA-LOPEZ,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding

Argued and Submitted
May 14, 2008—Pasadena, California

Filed July 17, 2008

Before: Barry G. Silverman, Marsha S. Berzon, and
Jay S. Bybee, Circuit Judges.

Opinion by Judge Silverman;
Partial Concurrence and Partial Dissent by Judge Bybee

8847
 UNITED STATES v. MIRANDA-LOPEZ 8849

COUNSEL

Keith H. Rutman, San Diego, California, for the defendant-
appellant.

Kyle W. Hoffman and Annalou Tirol, United States Depart-
ment of Justice, United States Attorneys Office, San Diego,
California, for the plaintiff-appellee.
8850 UNITED STATES v. MIRANDA-LOPEZ
OPINION

SILVERMAN, Circuit Judge:

Today we join the D.C. Circuit in holding that the crime of
aggravated identity theft, 18 U.S.C. § 1028A(a)(1), requires
proof that, among other things, the defendant knew that the
means of identification belonged to another person. It is not
enough to prove only that the defendant knew he was using
a false document. See United States v. Villanueva-Sotelo, 515
F.3d 1234 (D.C. Cir. 2008).

I. FACTS

Roberto Miranda-Lopez, a citizen of El Salvador who had
previously been deported from the United States, was indicted
for trying to enter the United States using a resident alien card
in the name of “Jorge A. Garcia Fregoso.” He was charged
with two counts—illegal reentry under 8 U.S.C. § 1326(a) and
(b) and aggravated identity theft in violation of 18 U.S.C.
§ 1028A(a)(1).1

At Miranda-Lopez’s jury trial, Customs and Border Protec-
tion Officer Terence Gibbs testified that he first came into
contact with Miranda-Lopez at about 6:45 a.m. on March 8,
2006 at the San Ysidro, California port of entry. When he
arrived at Officer Gibbs’s border inspection booth, Miranda-
Lopez was sitting in the front-passenger seat of a car driven
by a man later identified as Salvador Rodriguez. According to
Officer Gibbs, Miranda-Lopez, Rodriguez and a third passen-
ger were all awake and alert when the car approached his bor-
der inspection booth. Rodriguez handed Officer Gibbs three
identification cards, and Officer Gibbs immediately noticed
that the pictures on the cards did not match the three individu-
1
Miranda-Lopez was also charged with fraudulent use of an immigra-
tion document under 18 U.S.C. § 1546(a), but that charge was later dis-
missed by the government.
 UNITED STATES v. MIRANDA-LOPEZ 8851
als in the car. Officer Gibbs testified that he asked Miranda-
Lopez if he was Jorge A. Garcia-Fregoso as indicated by one
of the permanent resident cards and that Miranda-Lopez
responded “yes.” Officer Gibbs then asked for Miranda-
Lopez’s hand and determined that his fingerprint did not
match the fingerprint on the card. Suspecting that all three of
the car’s occupants were imposters, Officer Gibbs escorted
the group to secondary inspection where a second Customs
and Border Protection Officer determined that the three men
did not match the identification documents they asserted to be
theirs.

Before trial, the government and Miranda-Lopez entered
into the following written stipulation:

1. On March 8, 2006, Defendant was not a citizen
of the United States; Defendant was a citizen of
El Salvador.

2. Defendant was ordered deported from the
United States on September 20, 2005, and was
physically removed from the United States to El
Salvador on November 23, 2005.

3. On March 8, 2006, Defendant had not received
consent to reenter or apply for reentry into the
United States from the Secretary of the Depart-
ment of Homeland Security or his designated
successor.

4. The I-551, or Resident Alien Card, bearing the
name “Jorge A. Garcia Fregoso” was a validly-
issued Resident Alien Card on March 8, 2006.

5. Any transfer, possession or use of this card by
someone other than Jorge A. Garcia Fregoso
would be without lawful authority.
8852 UNITED STATES v. MIRANDA-LOPEZ
6. The parties do not dispute the identity of Jorge
A. Garcia Fregoso.

7. This stipulation is being entered into freely and
voluntarily by all parties.

At the close of the government’s evidence, Miranda-Lopez
made a motion for judgment of acquittal pursuant to Federal
Rule of Criminal Procedure 29 arguing, without elaboration,
that the government failed to meet its burden of proof. The
district court summarily denied the motion.

Testifying on his own behalf, Miranda-Lopez said that on
the day before he encountered Officer Gibbs, during a visit
with his girlfriend in Tijuana, he began drinking tequila early
in the day. Later that evening, he met Salvador Rodriguez
while drinking margaritas in a bar. At around 2:00 a.m. the
next morning, Miranda-Lopez decided he ought to leave the
bar before he fell asleep and accepted Rodriguez’s offer to
give him a ride home. Miranda-Lopez testified that he got into
Rodriguez’s car, but when Rodriguez went back to the bar to
get something, Miranda-Lopez fell asleep in the car. He said
he did not wake up until Officer Gibbs grabbed his hand to
examine his fingerprint. Miranda-Lopez testified that he had
no intent to enter the United States, that he had never seen the
Garcia-Fregoso permanent resident card before, and that no
officer ever asked if one of the identification cards belonged
to him. Further, Miranda-Lopez stated that he failed to tell the
border officers that the identification card did not belong to
him because he was “tongue-tied,” “shocked,” and “petri-
fied.”

The district judge gave the following jury instruction with
respect to aggravated identity theft:

The defendant is charged in Count Three of the
indictment with aggravated identity theft in violation
of Section 1028A of Title 18 of the United States
 UNITED STATES v. MIRANDA-LOPEZ 8853
Code. In order for the defendant to be found guilty
of that charge, the government must prove each of
the following elements beyond a reasonable doubt:

First, during and in relation to a violation of Sec-
tion 1326 of Title 8 of the United States Code,
attempted reentry of deported alien;

Second, the defendant knowingly transferred, pos-
sessed, or used a means of identification of another
person; and

Third, the defendant acted without lawful author-
ity.

Miranda-Lopez did not object to this instruction and, indeed,
offered these same elements in his trial memorandum.

At the close of all evidence and after the jury began delib-
erating, Miranda-Lopez renewed his Rule 29 motion, arguing
that the government failed to prove that he had possession of
the false identification, that he knew about it, or that he
intended to use it. The jury then found Miranda-Lopez guilty
of both the unlawful reentry and aggravated identity theft
charges. After the jury returned its verdict, the district judge
denied Miranda-Lopez’s Rule 29 motion. In doing so, the
judge, without any prompting, stated his own belief that the
real issue was whether or not Miranda-Lopez knew that the
identification card belonged to an actual person. However, the
district judge deemed the issue waived because of the
defense’s failure to raise it.

A week after the jury was discharged, Miranda-Lopez filed
a timely written Rule 29 motion arguing, for the first time,
that the government failed to prove that Miranda-Lopez actu-
ally knew that the identification belonged to another person.
The district court denied this motion and stated both that the
issue was waived, and that on the merits, proof that Miranda-
8854 UNITED STATES v. MIRANDA-LOPEZ
Lopez actually knew the identification belonged to another
person was not required to sustain a conviction under
§ 1028A(a)(1). In so holding, the district judge expressed
doubt about whether the government had proved that
Miranda-Lopez knew the identification belonged to someone
else, but did not entertain argument on the subject, deeming
such proof immaterial.

The district court sentenced Miranda-Lopez to 39 months
for unlawful reentry and an additional mandatory consecutive
sentence of 24 months for aggravated identity theft as
required by 18 U.S.C. § 1028A(b)(2).

Now, on appeal, Miranda-Lopez challenges only his
§ 1028A(a)(1) conviction and argues that the district court
erred in its jury instructions and denial of his final Rule 29
motion. We have jurisdiction under 28 U.S.C. § 1291.

II. DISCUSSION

A. 18 U.S.C. § 1028A(a)(1)

[1] 18 U.S.C. § 1028A(a)(1) states:

Whoever, during and in relation to any felony viola-
tion enumerated in subsection (c), knowingly trans-
fers, 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.

(emphasis added).2 The statute further requires that the two-
year sentence be served consecutively. 18 U.S.C. § 1028A(b).
2
“A means of identification” is defined as “any name or number that
may be used, alone or in conjunction with any other information, to iden-
tify a specific individual,” including alien registration numbers. 18 U.S.C.
§ 1028(d)(7).
Subsection (c) lists eleven categories of specified felonies, including 8
U.S.C. § 1326, the crime of which Miranda-Lopez was convicted.
 UNITED STATES v. MIRANDA-LOPEZ 8855
The issue here is whether the defendant must know that the
identification he uses belongs to another person. In other
words, does the adverb “knowingly” in the statute modify “of
another person” or merely “transfers, possesses, or uses”? We
review de novo this question of statutory interpretation. See
United States v. Gianelli, 519 F.3d 962, 965 (9th Cir. 2008).

In Liparota v. United States, 471 U.S. 419 (1985), the
Supreme Court analyzed statutory language punishing
“ ‘whoever knowingly uses, transfers, acquires, alters, or pos-
sesses coupons or authorization cards in any manner not
authorized by [the statute] or the regulations . . . .’ ” Id. at
420 (emphases added, alteration in original) (quoting 78 Stat.
708, as amended, 7 U.S.C. § 2024(b)(1)). The government
argued that the statute only requires proof that the acquisition,
alteration, or possession of the cards was in fact done in a
manner not authorized by law. Id. at 423. The defendant con-
tended that the statute requires proof that the defendant knew
that the acquisition, alteration, or possession was not autho-
rized by law. Id. When faced with these two plausible inter-
pretations of this statute, the Court held that “[e]ither
interpretation would accord with ordinary usage,” quoting a
treatise’s discussion of an analogous situation: “ ‘[a]s a matter
of grammar the statute is ambiguous; it is not at all clear how
far down the sentence the word ‘knowingly’ is intended to
travel . . . .’ ”). Id. at 424, 425 n. 7 (quoting W. LaFave & A.
Scott, Criminal Law § 27 (1972)); see also United States v.
Ching Tang Lo, 447 F.3d 1212, 1229 (9th Cir. 2006).

[2] 18 U.S.C. § 1028A(a)(1), similarly, can plausibly be
interpreted to require knowledge only of the transfer, posses-
sion, or use of a means of identification. Indeed, several cir-
cuits have come to that conclusion. See United States v.
Mendoza-Gonzalez, 520 F.3d 912, 915 (8th Cir. 2008); United
States v. Hurtado, 508 F.3d 603, 609 (11th Cir. 2007); United
States v. Montejo, 442 F.3d 213, 215 (4th Cir. 2006). As we
say, this is a plausible reading. On the other hand, we fail to
see how either logic or grammar necessarily makes that the
8856 UNITED STATES v. MIRANDA-LOPEZ
only plausible reading. It is not unreasonable to read “know-
ingly” to modify all of the subsequent phrases in the sentence,
as the Court did in United States v. X-Citement Video, Inc.,
513 U.S. 64, 77-78 (1994). In X-Citement Video, the Supreme
Court analyzed a similarly-structured statute that penalizes
“[a]ny person who . . . knowingly transports . . . any visual
depiction, if- (A) the producing of such visual depiction
involves the use of a minor engaging in sexually explicit con-
duct . . . .” 513 U.S. at 68 (emphases added) (quoting 18
U.S.C. § 2252). The Supreme Court held that, in light of
underlying policies and presumptions, the “knowingly” mens
rea requirement extends to “the use of a minor” found in sub-
section (A). Id. at 78. In particular, the Supreme Court
observed that “it is difficult to conclude that the word ‘know-
ingly’ modifies one of the elements in [a] subsection[ ] . . . but
not the other.” Id. at 77-78. Justice Stevens emphasized this
point in his concurrence by stating, “In my opinion, the nor-
mal, commonsense reading of a subsection of a criminal stat-
ute introduced by the word ‘knowingly’ is to treat that adverb
as modifying each of the elements of the offense identified in
the remainder of the subsection.” Id. at 79.

In holding that the language of § 1028A(a)(1) is ambigu-
ous, we follow the D.C. Circuit’s reasoning in United States
v. Villanueva-Sotelo, 515 F.3d 1234 (D.C. Cir. 2008).3 There,
Villanueva-Sotelo, a previously deported Mexican national,
presented a police officer with a permanent resident card dis-
playing his own name and photograph and an alien registra-
tion number. Id. at 1236. Villanueva-Sotelo knew the card
was a fake, but, as the government concedes, there was no
evidence that he knew that the alien registration number actu-
ally belonged to another person. Id. Villanueva-Sotelo
pleaded guilty to unlawful reentry and possession of a fraudu-
lent immigration document and moved to dismiss the aggra-
3
We note that the district court ruled on the written Rule 29 motion on
March 12, 2007, and that Villanueva-Sotelo was not decided until Febru-
ary 15, 2008.
 UNITED STATES v. MIRANDA-LOPEZ 8857
vated identity theft charge, arguing that the government could
not prove that he knew the alien registration number belonged
to another person. Id.

[3] After a detailed grammatical analysis, the D.C. Circuit
held that the language of § 1028A(a)(1) is ambiguous both
because nothing requires that “knowingly” extend only
through “means of identification” and because it had previ-
ously found similarly structured statutes to be ambiguous. Id.
at 1237-43. The D.C. Circuit also relied on the Supreme
Court’s holding in Liparota, 471 U.S. at 424, that a similar
knowledge requirement was ambiguous. Id. at 1241-42. Hav-
ing found that the language was ambiguous, the D.C. Circuit
then turned to the statutory structure and legislative history to
determine what Congress intended in passing § 1028A. Id. at
1243-46. After a careful examination of the legislative
scheme and history, the D.C. Circuit held that Congress
intended to target identity thieves and not the mere “acciden-
tal misappropriation” of another’s identification. Id. at 1246.
But see id. at 1252-55 (Henderson, J., dissenting). We recog-
nize, however, that the meaning of legislative history, like
beauty, is in the eye of the beholder. In this case, the legisla-
tive history does not definitely resolve the question of what
“knowingly” is meant to modify.

The dissent agrees with us thus far. Dis. op. at 8861 (agree-
ing that statutory language and legislative history are ambigu-
ous). The dissent would nonetheless construe the statute so
that “knowingly” does not modify “of another person,” solely
because such a construction supposedly would yield “absurd”
results in the following subsection, 18 U.S.C. § 1028A(a)(2).
Dis. op. at 8863. In that subsection, Congress provided a sen-
tencing enhancement for any person who, during certain enu-
merated terrorism offenses, “knowingly transfers, possesses,
or uses, without lawful authority, a means of identification of
another person or a false identification document.” Our dis-
senting colleague submits that, if “knowingly” modifies “of
another person” in this subsection, the modification is super-
8858 UNITED STATES v. MIRANDA-LOPEZ
fluous because “[a] person who knowingly transfers a means
of identification without lawful authority must necessarily
know that the identification either belongs to another person
or that it is false; there are no other choices.” Dis. op. at 8863.

If we accept the dissent’s assertion that “there are no other
choices,” the provision contains unavoidable surplusage how-
ever construed. The entire phrase “of another person or a
false identification document” could be excised from the stat-
ute if, as Judge Bybee argues, when a person “knowingly . . .
uses, without lawful authority, a means of identification,” he
has used either someone else’s identification or a false identifi-
cation;4 “without lawful authority” would then alone suffice,
without more, and the addition of “knowingly” would not
make the provision any more superfluous than it already is.5
As modifying “of another person” with “knowingly” thus
does not lead to results that are any more “absurd” or “incon-
sistent,” see dis. op. at 8863, 8865, than subsection (a)(2) is
without the modification, we continue to find the statutory
provision ambiguous.

[4] Which brings us to the rule of lenity. The “longstand-
ing” rule of lenity requires us to resolve any ambiguity in the
scope of a criminal statute in favor of the defendant. Liparota,
471 U.S. at 427; see also United States v. Santos, 128 S.Ct.
2020, 2025 (2008) (plurality opinion) (“Under a long line of
our decisions, the tie must go to the defendant.”); id. at 2033-
34 (Stevens, J., concurring in judgment) (relying on the rule
of lenity in reaching judgment). Although the rule of lenity
does not apply when it would require an interpretation that
“conflict[s] with the implied or expressed intent of Congress,”
4
The dissent assumes that “knowingly” modifies “without lawful
authority,” a construction that the government has not challenged.
5
Most likely, the phrase “a means of identification of another person or
a false identification document” was included simply to distinguish this
provision from the preceding one — § 1028A(a)(1) — which applies only
to the use of another’s identification.
 UNITED STATES v. MIRANDA-LOPEZ 8859
id., the interpretation urged by Miranda-Lopez does not pose
any such conflict. Construing the statute in the defendant’s
favor, we thus hold that the government was required to prove
that Miranda-Lopez knew that the identification belonged to
another person. This is not an insurmountable burden, espe-
cially in a case where the identification document contains
someone else’s photo and does not appear to be a fake. See
Villanueva-Sotelo, 515 F.3d at 1249 (“[P]roving the defendant
knew the stolen identification belonged to another person
should present no major obstacle, as such knowledge will
often be demonstrated by the circumstances of the case.”).

B. Jury Instructions

The district court instructed the jury that it must find that
“the defendant knowingly transferred, possessed, or used a
means of identification of another person.” In essence, the
district court repeated the statutory language of § 1028A(a)(1)
without making clear whether or not knowledge that the iden-
tification belonged to another person was required. Miranda-
Lopez did not challenge this jury instruction at the time of
trial and offered the same formulation of the § 1028A(a)(1)
charge in his trial memorandum. Thus, we review the district
court’s jury instructions for plain error. See Fed. R. Crim. P.
52(b); Jones v. United States, 527 U.S. 373, 388 (1999);
United States v. Delgado, 357 F.3d 1061, 1065 (9th Cir.
2004). “Plain error requires an (1) error, (2) that is plain, and
(3) that affects substantial rights. If these three conditions are
met, we may exercise our discretion to notice the error but
only if it (4) seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Delgado, 357 F.3d at
1065 (internal quotations and citation omitted).

[5] Here, the district court erred by failing to instruct that
§ 1028A(a)(1) requires that the defendant know the identifica-
tion belongs to another person. However, that error was not
plain because, at the time the issue reached us, there was a
“circuit split, [a] lack of controlling authority, and . . . at least
8860 UNITED STATES v. MIRANDA-LOPEZ
some room for doubt about the outcome of [the] issue.” In
such circumstances, any error “cannot” be plain. United States
v. Thompson, 82 F.3d 849, 856 (9th Cir. 1996); see also
United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir.
2003) (“An error cannot be plain where there is no controlling
authority on point and where the most closely analogous pre-
cedent leads to conflicting results.”).

C. Rule 29 Motion

In his final Rule 29 motion made a week after the jury ren-
dered its verdict, Miranda-Lopez argued, for the first time,
that the government failed to prove an essential element of
§ 1028A(a)(1)—that he knew that the identification belonged
to another person. The district court denied this motion,
apparently on waiver grounds. However, the district judge
explicitly stated that he had mulled over the knowledge
requirement issue and “concluded, based on the rationale of
the Fourth Circuit in Montejo, [442 F.3d 213,] that proof that
the defendant knew that the identification belonged to another
actual person is not required to sustain a conviction under [§]
1028A.”

Rule 29 provides that defendant can move for “a judgment
of acquittal of any offense for which the evidence is insuffi-
cient to sustain a conviction.” Fed. R. Crim. P. 29(a). “A
defendant may move for a judgment of acquittal, or renew
such a motion, within 7 days after a guilty verdict or after the
court discharges the jury, whichever is later.” Fed. R. Crim.
P. 29(c)(1). Moreover, “[a] defendant is not required to move
for a judgment of acquittal before the court submits the case
to the jury as a prerequisite for making such a motion after
jury discharge.” Fed. R. Crim. P. 29(c)(3). As the text of the
rule makes clear, Miranda-Lopez did not waive the issue by
failing to raise it until after the jury was discharged. In any
case, the district court expressly considered the knowledge
issue and made a reasoned ruling.
 UNITED STATES v. MIRANDA-LOPEZ 8861
[6] In ruling on Miranda-Lopez’s post-verdict motion for a
judgment of acquittal, the district judge operated on the prem-
ise that the statute did not require proof of the defendant’s
knowledge that the identification belonged to someone else.
We have explained why this premise was incorrect. The dis-
trict court should now go back and reconsider Miranda-
Lopez’s final Rule 29 motion, giving both sides the opportu-
nity to argue whether the evidence sufficiently proved that
Miranda-Lopez knew that the identification belonged to
another person.

REVERSED and REMANDED.

BYBEE, Circuit Judge, concurring in part and dissenting in
part:

This case surely proves Justice Johnson’s maxim: “One
half the doubts in life arise from the defects of language.”
Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 232 (1824). I agree
with much that the majority has written.1 I agree, for example,
that 18 U.S.C. § 1028A(a)(1) is capable of multiple, reason-
able interpretations. I further agree that the legislative history
provides few clues for resolving the ambiguity. Compare
United States v. Villanueva-Sotelo, 515 F.3d 1234, 1243-46
(D.C. Cir. 2008) with id. at 1252-55 (Henderson, J., dissent-
ing). If I stopped reading the statute where the majority did,
I would agree that the rule of lenity applies and I would join
the opinion in full. I dissent from parts II.A and II.C of the
majority opinion to point out a logical conundrum, one that I
think has been overlooked in the discussions thus far.
1
I agree that the district court did not commit plain error when it
repeated the statutory language in the jury instruction in light of the fact
that our court had never resolved this statutory conundrum, and there was
a circuit split on the issue. I therefore concur in Part II.B of the majority
opinion.
8862 UNITED STATES v. MIRANDA-LOPEZ
I

I find the statutes maddeningly difficult to deal with. The
statute at issue here, 18 U.S.C. § 1028A(a)(1), reads in full:

Whoever, during and in relation to any felony viola-
tion enumerated in subsection (c), knowingly trans-
fers, 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.

For reasons well explained, the majority reads this provision
as if it read:

Whoever, during and in relation to any felony viola-
tion enumerated in subsection (c), knowingly trans-
fers, possesses, or uses, without lawful authority, a
means of identification knowing that it belongs to
another person shall, in addition to the punishment
provided for such felony, be sentenced to a term of
imprisonment of 2 years.

So far, so good. I think that this is a reasonable reading of
§ 1028A(a)(1), read in isolation. See United States v. Wil-
liams, 128 S Ct. 1830, 1839 (2008) (applying “knowingly” to
every element of a statute because there was no indication that
“grammar or structure enable[d] the challenged provision or
some of its parts to be read apart from the ‘knowingly’
requirement.”)

Here is the problem. At the same time that Congress
adopted § 1028A(a)(1), which addresses aggravated identity
theft in general, it also adopted § 1028A(a)(2), which
addresses aggravated identity theft in the context of a terror-
ism offense. That section provides in full:

Whoever, during and in relation to any felony viola-
tion enumerated in section 2332b(g)(5)(B), know-
 UNITED STATES v. MIRANDA-LOPEZ 8863
ingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person
or a false identification document shall, in addition
to the punishment provided for such felony, be sen-
tenced to a term of imprisonment of 5 years.

18 U.S.C. § 1028A(a)(2). In form, subsections (a)(1) and
(a)(2) are identical. After today’s decision, we must read the
two consistently. That is, we must also read § 1028A(a)(2) as
if it read:

Whoever, during and in relation to any felony viola-
tion enumerated in section 2332b(g)(5)(B), know-
ingly transfers, possesses, or uses, without lawful
authority, a means of identification knowing that it
belongs to another person or is a false identification
document shall, in addition to the punishment pro-
vided for such felony, be sentenced to a term of
imprisonment of 5 years.

When read into this provision, however, the phrase “knowing
that it belongs to” is superfluous. A person who knowingly
transfers a means of identification without lawful authority
must necessarily know that the identification either belongs to
another person or that it is false; there are no other choices.
It makes no sense to read into subsection (a)(2) the second
“knowing.” It is, at the least, unnecessary and perhaps absurd.2
If subsection (a)(2) ought not be read in this way, it is not
clear why we must read subsection (a)(1) in this way either.
2
The majority attempts to minimize the significance of this absurdity by
observing that the entire phrase “of another person or a false identification
document” could be removed from § 1028A(a)(2). Maj. Op. 8858. While
this may be true in isolation, as the majority points out, the phrase was
probably included to distinguish this provision from the preceding one,
which applies only to the use of another’s identification, and not a “false
identification.” Maj. Op. 8858 n.5. The fact that Congress included one
superfluous phrase for an obvious reason, does not mean that we should
read a second one into the statute as well.
8864 UNITED STATES v. MIRANDA-LOPEZ
The majority opinion in Villanueva-Sotelo, addressed
§ 1028A(a)(2), but I do not find its discussion persuasive.
First, the majority noted that “[t]he government concedes that
section 1028A(a)(2)’s knowledge requirement must apply to
the whole phrase ‘false identification document.’ ” 515 F.3d
at 1239. The majority then reasoned that “if ‘knowingly trans-
fers, possesses, or uses’ acts upon the direct object and its
modifiers in subsection (a)(2), we think it quite reasonable to
conclude that it could do the same in subsection (a)(1).” Id.
at 1240. The majority’s conclusion may follow from its prem-
ises, but we have no indication that the government has “con-
cede[d]” any such thing about § 1028A(a)(2). Cf. United
States v. Estrada-Sanchez, ___ F. Supp. 2d ___, ___, 2008
WL 2315733, at *5 n.7 (D. Me. 2008).

The Villanueva-Sotelo majority returned to § 1028A(a)(2)
later in its opinion, but again I do not find its reasoning per-
suasive. It observed that subsection (a)(2) adds a phrase—“or
a false identification document”—not found in subsection
(a)(1). 515 F.3d at 1248. It then found that “[h]ad Congress
parroted subsection (a)(2)’s ‘false identification document’
language in subsection (a)(1), Villanueva-Sotelo’s guilt would
be plain. . . . We see no reason to read subsection (a)(2)’s lan-
guage into subsection (a)(1) when Congress clearly could
have placed it there itself.” Id. at 1249.

With all due respect to our colleagues on the D.C. Circuit,
they have it exactly backwards. Of course, there is no reason
to read the phrase “or a false identification document” found
in (a)(2) into (a)(1); that would be an obvious amendment of
the statute. But the majority has seemingly uncovered the log-
ical conundrum I identified above; it simply took the wrong
inference from it. My point is not that we should read lan-
guage that Congress added in subsection (a)(2) into (a)(1).
That is, I am not suggesting that we need to add to the actus
reus of §1028A(a)(1) that an individual has violated that sec-
tion if the means of identification he knowingly uses is in fact
a false document. Rather, my point is that we should not read
 UNITED STATES v. MIRANDA-LOPEZ 8865
mens rea language that is inconsistent with subsection (a)(2)
into an identical and contemporaneously-adopted subsection
(a)(1). That is precisely what the D.C. Circuit and the major-
ity have done: They have read into § 1028A(a)(1) a second
“knowing” requirement, and such a requirement cannot
peaceably be read into the nearly identical subsequent subsec-
tion.

II

I also wish to explain briefly why the statute at issue in this
case is distinguishable from the statutes the Supreme Court
parsed in Liparota v. United States, 471 U.S. 419 (1985), and
United States v. X-Citement Video, Inc., 513 U.S. 64 (1994).
In Liparota, the statute punished “whoever knowingly uses,
transfers, acquires, alters, or posseses coupons or authoriza-
tion cards in any manner not authorized by [the statute] or the
regulations.” 471 U.S. at 420 n.1 (quoting 7 U.S.C.
§ 2024(b)(1)). The petitioner in the case argued that adopting
an interpretation of the statute that did not read the mens rea
requirement as applying to the second part of the sentence,
would dispense with “the only morally blameworthy element
in the definition of the crime.” Id. at 423. The Supreme Court
agreed and explained that its interpretation was in part driven
by the fact that “to interpret the statute otherwise would be to
criminalize a broad range of apparently innocent conduct.” Id.
at 426. The Court noted that a strict reading of the “knowl-
edge” requirement would mean that an individual who was
mistakenly sent food stamps through the mail, or an individ-
ual who purchased food from a store that charged higher than
normal prices to food stamp program participants would be in
violation of the statute. Id. at 426-27.

Similarly, in X-Citement Video, the statute penalized “[a]ny
person who . . . knowingly transports . . . any visual depiction,
if . . . the producing of such visual depiction involves the use
of a minor engaging in sexually explicit conduct.” 513 U.S.
at 68 (quoting 18 U.S.C. § 2252(a)(1)(A)). The Court held
8866 UNITED STATES v. MIRANDA-LOPEZ
that in that case the “knowingly” mens rea requirement
extended to “the use of a minor” and therefore required
knowledge of the age of the performers. Id. at 78. Underlying
the Supreme Court’s reasoning is a concern that to read the
statute otherwise would capture “actors who had no idea that
they were even dealing with sexually explicit material.” Id. at
69. Thus, motivating both Supreme Court cases is an assump-
tion that Congress did not intend to criminalize conduct that
we regard as morally innocent.

We have no similar concern with respect to the statute at
issue in this case. This case does not address whether
§1028A(a)(1) requires knowledge that the identification is
being transferred, possessed or used without lawful authority.
Were that portion of the statute contested in this case, then the
Supreme Court’s precedents would directly apply because the
criminalization of morally innocent conduct would be at
stake. Here, reading § 1028A(a)(1) without requiring knowl-
edge that the identification belongs to another person would
only criminalize the following scenarios: 1) a person know-
ingly uses without lawful authority a means of identification
of another person knowing that it belongs to another person;
2) a person knowingly uses without lawful authority a means
of identification believing it to be a false identification docu-
ment, whereas in actuality it belongs to another person; and,
3) a person knowingly uses without lawful authority a means
of identification not knowing or caring whether it is a false
identification document or a means of identification of
another person, and in actuality it belongs to another person.
None of those scenarios involve criminalizing innocent
behavior, and therefore we need not assume that Congress
could not have intended to criminalize such conduct.

III

These are difficult statutes to parse. I would hold, consis-
tent with the Fourth, Eighth, and Eleventh Circuits, that a per-
son violates 18 U.S.C. § 1028A(a)(1) if he knowingly
 UNITED STATES v. MIRANDA-LOPEZ 8867
transfers, possesses or uses, without lawful authority, a means
of identification that belongs to another person, even if the
government cannot prove that he had actual knowledge that
the identification belonged to another person. Accordingly, I
would affirm the judgment of the district court.

I respectfully dissent.