[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Sept. 25, 2009
No. 09-10909 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-20867-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROSA VERONICA PEREZ,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 25, 2009)
Before HULL, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Rosa Veronica Perez appeals her conviction for aggravated identity theft in
Count 2 of the indictment. After review, we vacate Perez’s conviction and
sentence on Count 2.
A grand jury charged Perez with one count of knowingly and falsely
representing that a social security number was assigned to her for the purpose of
obtaining an identification document issued by the State of Florida, in violation of
42 U.S.C. § 408(a)(7)(B) (Count 1), and one count of 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. § 1028(a)(1) (Count 2).1
At a bench trial, the government presented the following stipulated facts.
Perez, who was working as a prostitute, received a fraudulent Texas birth
certificate and social security card in the name of Dana Renton from a pimp named
“Jit Money.” In 2006, Perez submitted these fraudulent documents to apply for
and obtain a Florida identification card. Dana Renton is a real person.
Following the government’s presentation, Perez moved for a judgment of
acquittal on Count 2, the aggravated identity theft charge. Perez argued that the
government failed to present sufficient evidence that she knew that the
identification documents she used belonged to a real person. The district court,
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Perez does not challenge her conviction on Count 1 for social security fraud.
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relying on United States v. Hurtado, 508 F.3d 603, 607 (11th Cir. 2007), concluded
that it need not make a finding as to Perez’s knowledge and denied Perez’s motion.
In Hurtado, this Court held that § 1028A(a)(1) did not require the government to
prove that a defendant “knew that the means of identification that he possessed and
used belonged to another actual person.” Id. at 610. The district court found Perez
guilty, and Perez appealed.
On May 4, 2009, shortly after Perez filed this appeal, the Supreme Court
issued a decision in Flores-Figueroa v. United States, 556 U.S. ___, ___, 129 S. Ct.
1886, 1894 (2009). Flores-Figueroa overruled Hurtado and held that the
government must show that the defendant knew the identification he used belonged
to another person to sustain a conviction under § 1028A(a)(1). Flores-Figueroa,
556 U.S. at ___, 129 S. Ct. at 1890, 1894.
On appeal, Perez argues that the stipulated facts are not sufficient to prove
beyond a reasonable doubt that she knew the identification she had used belonged
to a real person and asks that her § 1028A(a)(1) conviction be vacated and
remanded. The government concedes error that is not harmless and agrees that
Perez’s conviction on Count 2 must be vacated. Accordingly, in light of Flores-
Figueroa, we vacate Perez’s § 1028A(a)(1) conviction and sentence on Count 2
and remand this case to the district court for the limited purpose of dismissing
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Count 2 of the indictment.
VACATED AND REMANDED.
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