NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. ANTONIO RODRIGUEZ GUIDO, AKA Catarino Gerardo Saldana Molina, Defendant - Appellant. No. 13-10030D.C. No. 1:12-cr-00127-LJOBAM-1
MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Argued and Submitted January 16, 2014 San Francisco, California Before: O’SCANNLAIN, GRABER, and NGUYEN, Circuit Judges. Antonio Rodriguez Guido appeals his convictions under 18 U.S.C. § 641 for theft of government property and unde r 18 U.S.C. § 1028A(a)(1) for aggravated identity theft. He challenges the su fficiency of the evidence supporting his conviction on each count. 

# FILED
FEB 10 2014 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.In 1968, Guido applied for and obtained a Social Security number in the name of Catarino Gerardo Saldana Molin a. During his working years, Guido worked and paid Social Security taxe s under the number issued to his alias. Between 2002 and 2010, Guido received more than $100,000 in Social Security benefits under his alias. During this pe riod, Guido also submitted various forms to the Social Security Administration under his alias. To prove theft of government property under § 641, the government must establish beyond a reasonable doubt that: (1 ) the defendant knowingly stole money or property with the intention of depriving the owner of the use or benefit of it; (2) the money belonged to the United States; and (3) the value of the money exceeded $1,000. United States v. Derington , 229 F.3d 1243, 1248 (9th Cir. 2000). “[E]vidence is sufficient to support a c onviction if, viewing the evidence in the light most favorable to the prosecution, a ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Mincoff , 574 F.3d 1186, 1192 (9th Cir. 2009) (internal quotation marks omitted). The government’s proof is insufficient in two respects. The government established beyond a reasonable doubt that Guido represented himself to be someone he is not. But the government offered no proof that, due to such

2misrepresentations or for some other reas on, Guido was ineligible to receive the benefits he earned by paying Social Secu rity taxes during his working years. Moreover, even assuming that Guido were ineligible to receive Social Security benefits, the government failed to prove beyond a reasonable doubt, as required, that he knew himself to be so ineligible. See United States v. Morissette , 342 U.S. 246, 270–71 (1952); cf. Derington, 229 F.3d at 1249. Although the government proved that Guido knew himself not to be Catarino Gerardo Saldana Molina, it failed to prove that he knew he was therefore ineligible to receive benefits earned under his alias. Becausethe government failed to prove beyond a reasonable doubt that Guido knowingly received benefits not belonging to him, we reverse his conviction under § 641. Guido’s conviction under § 1028A was predicated upon his conviction under § 641. See 18 U.S.C. § 1028A(a)(1). Because we reverse Guido’s conviction for the predicate offense, theft of governme nt property under § 641, we also reverse his conviction for aggravated identity theft under § 1028A. We need not and do not reach the re maining issues raised on appeal. REVERSED.

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