[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-15950 ELEVENTH CIRCUIT
JUNE 15, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
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 15, 2009)
Before DUBINA, Chief Judge, CARNES and FAY, Circuit Judges.
PER CURIAM:
Appellant Steven Ehrlich appeals his conviction for knowingly and willfully
using, without lawful authority, the identification of another person during and in
relation to a felony, in violation of 18 U.S.C. § 1028A(a)(1).
Ehrlich argues that 18 U.S.C. § 1028A(a)(1) requires that the government
prove that he knew the identification information he used belonged to another
person, an argument we rejected in United States v. Hurtado, 508 F.3d 603 (11th
Cir. 2007), abrogated by Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).
Ehrlich contends that the stipulated facts at his bench trial did not establish that he
acted with the requisite knowledge and asks that his conviction for violating 18
U.S.C. § 1028A(a)(1) be vacated in light of the Supreme Court’s recent decision in
Flores-Figueroa v. United States, 129 S. Ct. 1886 (2009).
We review questions of statutory interpretation de novo. Hurtado, 508 F.3d
at 607 n.5. “[T]o support a conviction under § 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 relation to a felony enumerated in § 1028A(c).” Id. at 606– 07. Previously,
we had held that the government did not need to prove that the defendant “knew
that the means of identification that he possessed and used belonged to another
actual person.” Id. at 610. The Supreme Court, however, recently has held that §
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1028A(a)(1) requires the government “to show that the defendant knew that the
means of identification at issue belonged to another person.” Flores-Figueroa, 129
S. Ct. at 1894. We may “depart from a prior panel decision based upon an
intervening Supreme Court decision only if that decision actually overruled or
conflicted with it.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir. 2004)
(quotation omitted). We remand for further proceedings where the district court
did not make findings of fact on an issue. See United States v. Barner, 441 F.3d
1310, 1322 (11th Cir. 2006).
Because the Supreme Court has now held that the government must show
the defendant knew the identification he used belonged to another person to sustain
a conviction under § 1028A(a)(1), we vacate Ehrlich’s conviction on that count
and remand this case to the district court for it to determine in the first instance if
Ehrlich knew that the identification he used belonged to another person.
VACATED and REMANDED.
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