[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12275 ELEVENTH CIRCUIT
OCTOBER 1, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 06-20020-CR-WMH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGER JOSEPH,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 1, 2009)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before BIRCH, HULL and ANDERSON, Circuit Judges.
PER CURIAM:
This case is before the court upon remand from the United States Supreme
Court for further consideration in light of Flores-Figueroa v. United States, 556
U.S. __, 129 S. Ct. 1886 (2009). Roger Joseph appealed his convictions for, inter
alia, transferring and possessing a means of identification of another person, i.e.,
aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1) (Counts 5-7). In
his appeal, Joseph argued that the Government should have been required to prove
that he knew that the means of identification at issue in Counts 5-7 belonged to
actual people. He acknowledged that our precedent in United States v. Hurtado,
508 F.3d 603, 609-10 (11th Cir. 2007), cert. denied, 128 S.Ct. 2903 (2008),
foreclosed this argument.
The aggravated identity theft provision requires an enhanced sentence of two
years of imprisonment if a person “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. . . .” 18 U.S.C. §
1028A(a)(1). In Flores-Figueroa, the Supreme Court overruled Hurtado and stated
that as a matter of English grammar and criminal statutory interpretation,
“‘knowingly’ is naturally read as applying to all the subsequently listed elements
of the crime.” 129 S.Ct. at 1890-91. Therefore, the Court held that to be sentenced
under 18 U.S.C. § 1028A(a)(1), which applies to a person who (while committing
2
other enumerated crimes1 ) “knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person,” a person must have known
that the “means of identification” they possessed belonged to “another person.” Id.
at 1888.
Here, the Government did not show that Joseph had the requisite knowledge.
Therefore, we reverse his conviction for violating § 1028A, vacate his sentence for
violating § 1028A, and remand to the district court for resentencing, consistent
with Flores-Figueroa and this opinion.
REVERSED in part, VACATED and REMANDED.
1
Those other predicate crimes are listed in § 1028A(c). In other counts, Joseph was
convicted of violating predicate crimes referenced in § 1028A. In his appeal in this case, Joseph
mounted only one challenge to his convictions of these predicate crimes, a challenge that we
rejected in our now vacated previous opinion. For the reasons stated in our previous opinion, we
again reject that challenge, and reinstate that portion of our prior opinion. Accordingly, the
judgment of the district court with respect to these predicate crimes is affirmed.
3