United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 2, 2007 Decided February 15, 2008 

No. 07-3055 

UNITED STATES OF AMERICA, 

APPELLANT

v. 

GUSTAVO VILLANUEVA-SOTELO, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 06cr00271-01) 

Ellen Chubin Epstein, Assistant U.S. Attorney, argued 

the cause for appellant. With her on the briefs were Jeffrey A. 

Taylor, U.S. Attorney, Roy W. McLeese, III, Elizabeth 

Trosman, and Frederick W. Yette, Assistant U.S. Attorneys. 

Steven R. Kiersh, appointed by the court, argued the 

cause and filed the brief for appellee. 

Before: HENDERSON and TATEL, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge TATEL. 
2 

Dissenting opinion filed by Circuit Judge HENDERSON. 

TATEL, Circuit Judge: The federal “[a]ggravated identity 

theft” statute imposes two additional years of imprisonment 

on any person who during the commission of an enumerated 

felony “knowingly transfers, possesses, or uses, without 

lawful authority, a means of identification of another person.” 

18 U.S.C. § 1028A(a)(1). The question before us is this: to 

obtain a conviction under section 1028A(a)(1), must the 

government prove the defendant knew the “means of 

identification” he “transfer[red], possesse[d], or use[d]” 

actually belonged to “another person,” or is it sufficient for 

the government to show that the means of identification 

happened to belong to another person? Based on the statute’s 

text, purpose, and legislative history—and mindful that the 

rule of lenity comes into play when, after resort to the 

traditional tools of statutory interpretation, reasonable doubt 

remains as to the statute’s meaning—we hold that section 

1028A(a)(1)’s mens rea requirement extends to the phrase “of 

another person,” meaning that the government must prove the 

defendant actually knew the identification in question 

belonged to someone else. 

I. 

Defendant Gustavo Villanueva-Sotelo, a Mexican 

national, has entered the United States illegally three times 

and has been deported twice. In August 2006, District of 

Columbia Metropolitan Police approached Villanueva-Sotelo 

and asked him for identification. Villanueva-Sotelo presented 

the officers with what appeared to be a permanent resident 

card—an official document issued by the Department of 

Homeland Security proving its holder is authorized to stay or 

work in the United States. Villanueva-Sotelo’s card displayed 

his own name and photograph, listed Mexico as his country of 

origin, and included an alien registration number. Villanueva-
3 

Sotelo admits he knew the card was a fake. Although the 

government can prove that the alien registration number 

displayed on the card belonged to another individual, it 

concedes—critically for this case—that it lacks any evidence 

that Villanueva-Sotelo actually knew this. 

The government charged Villanueva-Sotelo with 

unlawful entry of a removed alien in violation of 8 U.S.C. § 

1326(a) and (b)(1) (count one), possession of a fraudulent 

document prescribed for authorized stay or employment in the 

United States in violation of 18 U.S.C. § 1546(a) (count two), 

and aggravated identity theft in violation of 18 U.S.C. § 

1028A(a)(1) (count three). In full, the identity theft statute 

reads: “Whoever, 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 shall, in addition to the 

punishment provided for such felony, be sentenced to a term 

of imprisonment of 2 years.” Id. (emphasis added). 

Villanueva-Sotelo pled guilty to the first two counts but 

moved to dismiss count three, the aggravated identity theft 

charge, arguing that section 1028A(a)(1) requires the 

government to prove he actually knew the alien registration 

number belonged to another person. Agreeing with the 

defendant, Judge Friedman held that the word “knowingly” in 

section 1028A(a)(1) must “modify both the verbs and the 

object, that is, ‘means of identification of another person.’” 

Hr’g Tr. at 50 (Apr. 4, 2007). In reaching this conclusion, the 

Judge found the following exchange with the prosecutor 

particularly illuminating: 

[PROSECUTOR]: [I]t is stealing in the sense 

that if I make up a number and it belongs to 

someone else, I have taken that person’s 
4 

number that was rightfully assigned by a U.S. 

agency. 

THE COURT: If you make up the number? 

[PROSECUTOR]: Yes. If I— 

THE COURT: What if you make up a number 

that doesn’t belong to anybody? 

[PROSECUTOR]: Then you don’t charge the 

offense, there is no offense because it’s not a 

means of identification of another person. 

THE COURT: So if the defendant picked a 

number out of the air and it was [your] 

number, he’s guilty, but if he picked a number 

out of the air and [Immigration and Customs 

Enforcement] hasn’t assigned it to anybody, 

he’s not guilty? 

[PROSECUTOR]: That’s correct. 

Id. at 15. Unable to conclude that a scenario like this amounts 

to identity theft, see id. at 48, Judge Friedman granted 

Villanueva-Sotelo’s motion to dismiss count three. 

The government now appeals. Because this case presents 

a pure question of statutory interpretation, we review the 

district court’s decision de novo. See Butler v. West, 164 F.3d 

634, 639 (D.C. Cir. 1999). 

II. 

Our interpretive task begins with the statute’s language. 

See Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). 
5 

We must first “determine whether the language at issue has a 

plain and unambiguous meaning with regard to the particular 

dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337, 

340 (1997). If it does, our inquiry ends and we apply the 

statute’s plain language. See Sigmon Coal, 534 U.S. at 450. 

But if we find the statutory language ambiguous, we look 

beyond the text for other indicia of congressional intent. See 

Staples v. United States, 511 U.S. 600, 605 (1994) 

(“[D]etermining the mental state required for commission of a 

federal crime requires ‘construction of the statute and . . . 

inference of the intent of Congress.’” (omission in original) 

(quoting United States v. Balint, 258 U.S. 250, 253 (1922))). 

Reduced to its essence, section 1028A(a)(1) reads as 

follows: “Whoever . . . knowingly . . . uses, without lawful 

authority, a means of identification of another person shall . . . 

be sentenced to a term of imprisonment of 2 years.” 

According to the government, this text is unambiguous: the 

statute’s knowledge requirement extends only so far as 

“means of identification,” requiring no proof the defendant 

knew the identification belonged to “another person.” For his 

part, Villanueva-Sotelo contends the statute is ambiguous and 

that the provision’s title, purpose, and legislative history 

reveal Congress’s intent to extend the mens rea requirement 

throughout the entire sentence, namely all the way to “of 

another person.” We agree with the defendant. Although the 

government’s interpretation is plausible, nothing suggests it 

represents the only possible—or even the most plausible—

reading of section 1028A(a)(1). See McCreary v. Offner, 172 

F.3d 76, 82 (D.C. Cir. 1999) (finding a statute ambiguous 

because it was “reasonably susceptible to more than one 

meaning”); see also Air Transp. Ass’n of Am. v. FAA, 169 

F.3d 1, 4 (D.C. Cir. 1999) (“Although the inference petitioner 

would draw as to the statute’s meaning is not by any means 

unreasonable, it is also not inevitable.”). 
6 

The parties focus on the word “knowingly,” debating 

whether that adverb modifies the phrase “of another person.” 

But a simple diagram of the relevant statutory text readily 

demonstrates that, from a grammatical point of view, this is 

not the correct question: 

knowingly

uses

a

means

of

identification

of

person

another

The word “knowingly” technically modifies only the verb that 

follows it (“uses”). It modifies neither the direct object 

(“means”) nor the two prepositional phrases that follow (“of 

identification of another person”). See ROBERT FUNK ET AL.,

THE ELEMENTS OF GRAMMAR FOR WRITERS 62 (MacMillan 

1991) (“An adverb, in standard English, modifies almost 

anything except a noun.”). 

In the end, this grammatical observation is beside the 

point given that the parties, as well as relevant case law 

interpreting similarly structured statutes (cases we discuss 

below), are best understood as using the word “modify” more 

loosely, equating it with words such as “apply,” “extend,” or 

“attach.” See, e.g., United States v. X-Citement Video, Inc., 

513 U.S. 64, 73 (1994); Liparota v. United States, 471 U.S. 

419, 424-25 n.7 (1985); United States v. Nofziger, 878 F.2d 

442, 446 (D.C. Cir. 1989). Thus, framing the question in 

terms of statutory interpretation, we ask how far section 
7 

1028A(a)(1)’s mens rea requirement—“knowingly”—reaches 

in the statute. 

That question requires us to focus on the statute’s direct 

object, “means.” “Means” is modified by the prepositional 

phrase “of identification,” which, in turn, is modified by a 

second prepositional phrase, “of another person.” As the 

government concedes, the mens rea requirement must extend 

at least to the direct object’s principal modifier, “of 

identification.” Were it otherwise, a person could be 

convicted for “knowingly us[ing] or transfer[ring],” without 

lawful authority, anything at all that happened to contain a 

means of identification. As one district court explained: 

If during a bank fraud conspiracy, I hand a 

defendant a sealed envelope asking her to 

transfer it and its contents to another and she 

knowingly does so, she has knowingly 

transferred the envelope and its contents. But 

if she believes my statement that the envelope 

contains only a birthday card when in fact it 

contains a forged social security card, the 

government surely would not contend that she 

should receive the enhanced penalty. 

United States v. Godin, 476 F. Supp. 2d 1, 2 (D. Me. 2007). 

And it goes without saying that the mens rea requirement 

must also reach beyond the bare direct object “means” to its 

first modifying phrase “of identification,” lest the sentence 

become gibberish: “knowingly using a means” means 

nothing. 

But what of the second and crucial prepositional phrase 

“of another person”? Does section 1028A(a)(1)’s mens rea 

requirement apply to it as well? The government is certainly 
8 

correct that the statute’s knowledge requirement might apply 

only to the direct object’s first prepositional phrase, thereby 

criminalizing “knowingly transfer[ing], possess[ing], or 

us[ing] . . . a means of identification” that happens to belong 

to another. Indeed, as the dissent points out, Congress knows 

how to draft a statute that unambiguously extends a mens rea 

requirement to various elements in the statutory text. See

Dissenting Op. at 12 (citing 18 U.S.C. § 1546(a)). But with 

regard to section 1028A(a)(1), the defendant’s view—that the 

statute’s mens rea requirement extends all the way to “of 

another person”—is at least equally plausible. Neither the 

government nor the dissent offers a convincing reason, nor are 

we aware of one, demanding the statute’s mens rea 

requirement halt after “of identification” rather than proceed 

to “of another person.” Indeed, the Model Penal Code adopts 

as a general principle of construction a rule under which, 

absent evidence to the contrary, the mens rea requirement 

encompasses all material elements of an offense. See MODEL 

PENAL CODE § 2.02(4) (1985) (“When the law defining an 

offense prescribes the kind of culpability that is sufficient for 

the commission of an offense, without distinguishing among 

the material elements thereof, such provision shall apply to all 

the material elements of the offense, unless a contrary purpose 

plainly appears.”); see also X-Citement Video, 513 U.S. at 79 

(Stevens, J., concurring) (“[T]he normal, commonsense 

reading of a subsection of a criminal statute 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.”). 

A simple rewrite of the statute further underscores the 

plausibility of Villanueva-Sotelo’s interpretation. Suppose 

section 1028A(a)(1) had read, “whoever knowingly uses . . . 

another person’s means of identification.” Written that way, 

the statute would most plausibly require proof that the 
9 

defendant actually knew the means of identification used 

belonged to someone else, and as government counsel agreed 

at oral argument, the phrases “means of identification of 

another person” and “another person’s means of 

identification” carry precisely the same meaning. Oral Arg. at 

5:13-:33, 7:49-8:02. True, Congress used a cumbersome 

prepositional phrase rather than the more elegant possessive 

form, but we see nothing of significance in that syntactic 

choice. 

Two additional factors reinforce our conclusion that 

section 1028A(a)(1) is ambiguous. First, the next provision 

of the same statute, section 1028A(a)(2), increases penalties 

for identity theft perpetrated in connection with “[t]errorism 

offense[s].” 18 U.S.C. § 1028A(a)(2). Structured nearly 

identically to subsection (a)(1), that provision reads: 

Whoever, during and in relation to any felony 

violation enumerated in section 

2332b(g)(5)(B), knowingly 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 

sentenced to a term of imprisonment of 5 

years. 

Id. (emphasis added). The government concedes that section 

1028A(a)(2)’s knowledge requirement must apply to the 

whole phrase “false identification document.” Oral Arg. at 

8:43-:58, 9:30-:48. Thus, as a matter of pure textual distance, 

the mens rea requirement travels farther in subsection (a)(2) 

than the government claims possible in subsection (a)(1). 

Indeed, under the government’s interpretation, “knowingly” 

must skip over the contested phrase “of another person” and 
10 

then, suddenly resuming its influence, apply to “false 

identification document.” Moreover, if Congress had 

intended section 1028A(a)(2)’s mens rea requirement to reach 

beyond “identification document” to embrace the fact of its 

falsity, it seems equally likely that Congress intended a 

parallel application regarding the phrase “means of 

identification of another person”—precisely the same 

language at issue in section 1028A(a)(1). As the Supreme 

Court has observed, “it is difficult to conclude that the word 

‘knowingly’ modifies one of the elements in [a] subsection[] 

 . . . but not the other.” X-Citement Video, 513 U.S. at 77-78. 

And if “knowingly transfers, 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). 

Second, we have previously found similarly structured 

statutes to be ambiguous. For instance, in United States v. 

Nofziger, 878 F.2d 442, we considered a statute prohibiting 

former government employees from lobbying their former 

agencies. In relevant part, that statute prohibited covered 

employees from “knowingly . . . with the intent to influence, 

mak[ing] any oral or written communication . . . to the 

department or agency in which he served . . . in connection 

with any . . . particular matter . . . in which such department or 

agency has a direct and substantial interest.” 18 U.S.C. § 

207(c) (1982) (emphasis added). There, as here, “[t]he 

principal dispute in th[e] case [was] over the reach of the 

word ‘knowingly.’” Nofziger, 878 F.2d at 444. While 

Nofziger, a former White House advisor convicted under this 

statute for improperly communicating with his former 

employer, argued that the government had to “show[] that he 

had knowledge that the agency had a ‘direct or substantial’ 

interest in the matter,” the government urged a more limited 

application of the statute’s mens rea requirement. Id. at 446. 
11 

Ultimately agreeing with Nofziger and observing that the 

statute was “hardly a model of clarity,” id. at 445 (citation 

omitted), we found the provision ambiguous, stating that 

“‘knowingly’ can reasonably be read to apply to all elements 

of the . . . offense, including the ‘direct or substantial interest’ 

element.” Id. at 447; see also id. (“[T]he . . . language . . . 

clearly permits the inference that ‘knowingly’ attaches to all 

elements of the . . . offense.”). So too here. Text alone 

cannot resolve this case because “knowingly” may “apply to 

all elements of the . . . offense,” id., including the requirement 

that the identification used belong to “another person.” 

Likewise, in United States v. Chin, 981 F.2d 1275 (D.C. 

Cir. 1992), we confronted a statute making it a crime for any 

adult “knowingly and intentionally” to “employ, hire, use, 

persuade, induce, entice, or coerce, a person under eighteen 

years of age to assist in avoiding detection or apprehension 

for any [listed federal drug offense].” 21 U.S.C. § 861(a)(2). 

Again observing that the statute was “not a model of 

meticulous drafting,” we explained that “[o]ne cannot tell 

from the words alone whether the person’s juvenile status 

must be known . . . or whether it suffices that the act of using 

a person to avoid detection be ‘knowing[] and intentional[].’” 

Chin, 981 F.2d at 1279 (emphasis added) (second and third 

alterations in original). Here, faced with similarly ambiguous 

text, we “cannot tell from the words alone,” id., whether 

section 1028A(a)(1) requires the defendant to know the means 

of identification he used belonged to another person, or 

whether it suffices that the act of “transfer[ring], possess[ing], 

or us[ing] . . . a means of identification” be done 

“knowingly.” 18 U.S.C. § 1028A(a)(1). To be sure, in Chin

we ultimately held that the statute required no proof the 

defendant knew the person used was a minor, but we did so 

only after investigating the statute’s purpose and finding 

Congress’s intent to protect minors as a class “fairly implied.” 
12 

981 F.2d at 1280. Although the government now urges us to 

follow Chin by refusing to extend “knowingly” throughout 

section 1028A(a)(1), it ignores Chin’s holding that text alone 

failed to resolve the case. 

The Supreme Court has also provided useful guidance on 

how to interpret statutes constructed like section 1028A(a)(1). 

In Liparota v. United States, 471 U.S. 419, the Court wrestled 

with a federal food stamp statute that read: “[W]hoever 

knowingly uses, transfers, acquires, alters, or possesses 

coupons or authorization cards in any manner not authorized 

by [law]” is subject to a fine and imprisonment. 7 U.S.C. § 

2024(b)(1) (1982). The parties disputed whether the statute’s 

knowledge requirement applied to the phrase “in any manner 

not authorized by [law].” Text alone, the Court explained, 

provided no answer: 

 

Congress has not explicitly spelled out the 

mental state required. Although Congress 

certainly intended by use of the word 

“knowingly” to require some mental state with 

respect to some element of the crime defined in 

[the statute], the interpretations proffered by 

both parties accord with congressional intent to 

this extent. Beyond this, the words themselves 

provide little guidance. Either interpretation 

would accord with ordinary usage.

Id. at 424 (third emphasis added). By way of analogy, the 

Court made the same point in a footnote: 

Still further difficulty arises from the 

ambiguity which frequently exists concerning 

what the words or phrases in question modify. 

What, for instance, does “knowingly” modify 
13 

in a sentence from a “blue sky” law criminal 

statute punishing one who “knowingly sells a 

security without a permit” from the securities 

commissioner? To be guilty must the seller of 

a security without a permit know only that 

what he is doing constitutes a sale, or must he 

also know that the thing he sells is a security, 

or must he also know that he has no permit to 

sell the security he sells? As 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—whether it 

modifies “sells,” or “sells a security,” or 

“sells a security without a permit.” 

Id. at 424-25 n.7 (emphasis added) (quoting W. LAFAVE & A.

SCOTT, CRIMINAL LAW § 27 (1972)); see also Arthur 

Andersen LLP v. United States, 544 U.S. 696, 705 (2005) 

(“We have recognized with regard to similar statutory 

language that the mens rea at least applies to the acts that 

immediately follow, if not to other elements down the 

statutory chain.” (emphasis added)). 

As in the statutes at issue in Liparota, Chin, and Nofziger, 

the word “knowingly” appears in section 1028A(a)(1) before 

a verb or series of verbs, a direct object, and at least one other 

term further describing that object. Here, as in those cases, 

the government and defendant contest the knowledge 

requirement’s reach. And here, as in those cases, “either 

interpretation would accord with ordinary usage.” Liparota, 

471 F.2d at 424. 

Ignoring the Supreme Court’s clear finding that text 

alone cannot resolve statutes structured this way, the 

government and dissent argue that Liparota, reinforced by X-
14 

Citement Video, demonstrates that the Court will extend a 

knowledge requirement only when failing to do so could 

criminalize otherwise innocent conduct—a concern not 

present here because section 1028A(a)(1) requires a predicate 

felony offense. See Dissenting Op. at 14-19. True, the Court 

has found it “particularly appropriate” to extend a mens rea 

requirement when failure to do so would result in a statute 

criminalizing nonculpable conduct. Arthur Andersen, 544 

U.S. at 703; Liparota, 471 U.S. at 426; see also Staples, 511 

U.S. at 610 (“[We have taken] particular care . . . to avoid 

construing a statute to dispense with mens rea where doing so 

would ‘criminalize a broad range of apparently innocent 

conduct.’” (quoting Liparota, 471 U.S. at 426)). But the 

Court has never held that avoiding such a result is the only 

reason to do so. Thus, while “[t]he presumption in favor of 

scienter requires a court to read into a statute only that mens 

rea which is necessary to separate wrongful conduct from 

‘otherwise innocent conduct,’” Carter v. United States, 530 

U.S. 255, 269 (2000) (emphasis added) (quoting X-Citement 

Video, 513 U.S. at 72), courts may extend a mens rea 

requirement when ordinary tools of statutory interpretation—

text, structure, purpose, and legislative history—compel that 

result. Accordingly, Liparota’s concern with criminalizing 

nonculpable conduct has no bearing on the threshold issue 

before us—whether section 1028A(a)(1) is ambiguous. 

In answering that question in the affirmative, we 

acknowledge, as the government emphasizes, that the Fourth 

Circuit reached the opposite conclusion in United States v. 

Montejo, 442 F.3d 213 (4th Cir. 2006), cert. denied, 127 S. 

Ct. 366 (2007). Finding section 1028A(a)(1) unambiguous, 

our neighboring circuit reasoned that “as a matter of common 

usage, ‘knowingly’ does not modify the entire lengthy 

predicate that follows it.” Id. at 215. Although the Eleventh 

Circuit, along with several district courts, has adopted this 
15 

interpretation, see, e.g., United States v. Hurtado, 508 F.3d 

603 (11th Cir. 2007) (per curiam); United States v. Godin, 

489 F. Supp. 2d 118 (D. Me. 2007); United States v. 

Contreras-Macedas, 437 F. Supp. 2d 69 (D.D.C. 2006), other 

district courts have found section 1028A(a)(1) ambiguous and 

embraced the defendant’s view. See United States v. SalazarMontero, __ F. Supp. 2d __, No. CR 07-2020-MWB, 2007 

WL 3102096 (N.D. Iowa Oct. 25, 2007); United States v. 

Beachem, 399 F. Supp. 2d 1156 (W.D. Wash. 2005). 

We respectfully disagree with Montejo. Although the 

court there correctly concluded that the adverb “knowingly” 

modifies only the verbs “transfers, possesses, [and] uses,” see 

442 F.3d at 215 (alteration in original), that grammatical 

observation, as explained above, fails to resolve the key 

question, namely, how far does the statute’s mens rea 

requirement extend? Montejo’s observation that “knowingly” 

must rest “adjacent to the words it modifies, as close as it can 

get” provides no help either. Id. at 216. As one district court 

interpreting section 1028A(a)(1) observed, “‘knowingly’ has 

been placed as close as possible to the entire, indivisible 

predicate: ‘transfers, possesses, or uses, without lawful 

authority, a means of identification of another person.’” 

Salazar-Montero, 2007 WL 3102096, at *9. Moreover, 

Liparota’s observation that statutes structured like 

1028A(a)(1) are ambiguous “[a]s a matter of grammar,” 471 

U.S. at 425 n.7, fatally undermines Montejo’s reliance on 

“common usage.” 442 F.3d at 215. Indeed, the Fourth 

Circuit expressly acknowledged that in Liparota the Court 

found both “interpretation[s] of the scope of the term 

‘knowingly’ . . . in accord with common usage.” Id. at 216. 

III. 

Having found section 1028A(a)(1) ambiguous, “we seek 

guidance in the statutory structure, relevant legislative history, 
16 

[and] congressional purposes expressed in the [statute].” Fla. 

Power & Light Co. v. Lorion, 470 U.S. 729, 737 (1985). 

According to the government, the legislative history 

demonstrates that “Congress intended to criminalize the 

knowing possession of fraudulent identity documents, even if 

the defendants lacked the specific knowledge that they 

possessed a real person’s means of identification.” 

Appellant’s Opening Br. 18. The dissent agrees. See 

Dissenting Op. at 8. Reading the legislative history 

differently, Villanueva-Sotelo argues that Congress intended 

to target identity theft and the thieves who perpetrate it, rather 

than to create a sentencing enhancement for individuals who 

use fraudulent identifying information belonging purely by 

happenstance to someone else. Again, we agree with 

Villanueva-Sotelo. 

We begin with section 1028A’s title: “[a]ggravated 

identity theft.” See Almendarez-Torres v. United States, 523 

U.S. 224, 234 (1998) (“[T]he title of a statute and the heading 

of a section are tools available for the resolution of a doubt 

about the meaning of a statute.” (citation and internal 

quotation marks omitted)); see also Pa. Dep’t of Corrections 

v. Yeskey, 524 U.S. 206, 212 (1998) (“For interpretive 

purposes, [the title is] of use only when [it] shed[s] light on 

some ambiguous word or phrase.” (second and third 

alterations in original) (citation and internal quotation marks 

omitted)). As that title demonstrates, the statute concerns 

“theft,” i.e., “the felonious taking and removing of personal 

property with intent to deprive the rightful owner of it.” 

WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2369 

(1993) (emphasis added); see also BLACK’S LAW DICTIONARY

1516 (8th ed. 2004) (“The felonious taking and removing of 

another’s personal property with the intent of depriving the 

true owner of it.”). Yet Villanueva-Sotelo, having had no 

idea that his forged alien registration number belonged to 
17 

anyone at all, couldn’t possibly have had the intent to deprive 

another person of his or her identity. True, Villanueva-Sotelo 

had a guilty mind—he knowingly presented a fake permanent 

resident card to D.C. police officers—but he pled guilty to 

precisely that charge in the indictment’s second count and is 

being punished accordingly. 

Judge Friedman’s colloquy with the prosecutor, see supra

at 3-4, reveals just how far the government’s interpretation 

departs from the statute’s focus on “theft.” As the 

government argued in the district court and reiterated at oral 

argument here, a defendant could pick a series of numbers out 

of the air and win two extra years in prison if those numbers 

happened to coincide with an assigned identification number, 

yet escape punishment under section 1028A(a)(1) had he 

picked a slightly different string of random numbers. See

Hr’g Tr. at 15, 48. That’s not theft. Judge Friedman could 

not square the government’s position with congressional 

intent, nor can we. 

That Congress intended section 1028A(a)(1) to single out 

thieves—in the traditional sense of the word—for enhanced 

punishment finds additional support in the statute’s legislative 

history. Frustrated that “many identity thieves receive short 

terms of imprisonment or probation,” H.R. Rep. No. 108-528, 

at 3 (2004), reprinted in 2004 U.S.C.C.A.N. 779, 780, 

Congress passed section 1028A(a)(1) as part of the Identity 

Theft Penalty Enhancement Act, Pub. L. No. 108-275, 118 

Stat. 831 (2004). The House Judiciary Committee Report 

accompanying the Act repeatedly emphasizes Congress’s 

intent to target and punish “identity thieves” who “steal 

identities to commit terrorist acts, immigration violations, 

firearms offenses, and other serious crimes.” H.R. Rep. No. 

108-528, at 3 (emphases added). The report further explains: 

“The terms ‘identity theft’ and ‘identity fraud’ refer to all 
18 

types of crimes in which someone wrongfully obtains and 

uses another person’s personal data in some way that involves 

fraud or deception, typically for economic or other gain, 

including immigration benefits.” Id. at 4. Although whether 

a person who imagines a string of random numbers has 

“wrongfully obtain[ed]” personal data is debatable, section 

1028A(a)(1)’s legislative history demonstrates that at least for 

purposes of this statute, Congress has already answered that 

question in the negative. The House Report describes identity 

theft in detail, providing a series of examples of how one 

“wrongfully obtains” another person’s personal data. The 

report first describes how “identity thieves” operate, 

explaining that they 

obtain[] individuals’ personal information for 

misuse not only through “dumpster diving,” 

but also through accessing information that 

was originally collected for an authorized 

purpose. The information is accessed either by 

employees of the company or of a third party 

that is authorized to access the accounts in the 

normal course of business, or by outside 

individuals who hack into computers or steal 

paperwork likely to contain personal 

information. 

Id. at 4-5. The report then lists a string of cases in which 

convicted identity thieves escaped with relatively light 

sentences, all of which involved defendants who, unlike 

Villanueva-Sotelo, knew the identification they used belonged 

to another. Focusing on the immigration context, the report 

mentions a case in which a Mexican resident obtained federal 

benefits by using “the name and Social Security number of his 

former brother-in-law, a U.S. citizen.” Id. at 6. Other 

examples cited include a woman who used her husband’s 
19 

social security number to obtain disability benefits, a health 

club worker who used a “skimmer” to obtain credit card data 

from the club’s members, and a bank employee who accessed 

the bank’s computer files to obtain customer account 

information. Id. at 5-6. In each of these examples, the thief 

knew the stolen information belonged to another person—

indeed, that was the very essence of the crime. 

The floor debate reveals a similar emphasis on theft. 

Representative Sensenbrenner, the House Judiciary 

Committee Chair and the bill’s floor manager, explained, 

“This legislation will allow prosecutors to identify identity 

thieves who steal an identity, sometimes hundreds or even 

thousands of identities, for purposes of committing one or 

more crimes.” 150 Cong. Rec. H4809 (daily ed. June 23, 

2004) (statement of Rep. Sensenbrenner). Representative 

Carter, the Act’s author and lead sponsor, likewise explained 

that the legislation would “facilitate the prosecution of 

criminals who steal identities in order to commit felonies,” 

recounting a case in which a “Texas driver’s license bureau 

clerk pleaded guilty to selling ID cards to illegal immigrants 

using stolen information from immigration papers.” Id. at 

H4810 (statement of Rep. Carter). At no point in the 

legislative record did anyone so much as allude to a situation 

in which a defendant “wrongfully obtain[ed]” another 

person’s personal information unknowingly, unwittingly, and 

without intent. 

In support of the contrary position—that Congress 

targeted not just thieves, but also anyone using a false 

identification document happening to belong to another 

person—the government directs us to the following language 

from the House Report: 
20 

This section amends Title 18 to provide for a 

mandatory consecutive penalty enhancement 

of 2 years for any individual who knowingly 

transfers, possesses, or uses the means of 

identification of another person in order to 

commit a serious Federal predicate offense 

( . . . including immigration violations, false 

citizenship crimes, firearms offenses, and other 

serious crimes). 

H.R. Rep. No. 108-528, at 10. But as the Supreme Court 

stated when confronting similarly unilluminating legislative 

history, “[w]e fail to see how this sentence, which merely 

parrots the terms of the statute, offers any enlightenment as to 

what those terms mean.” Liparota, 471 U.S. at 430-31 n.13. 

As for the long list of examples evincing the statute’s 

focus on intentional theft, the government and our dissenting 

colleague argue that Congress wished to highlight only the 

most egregious examples of identity theft without limiting the 

statute’s reach to those examples. See Dissenting Op. at 7. 

This point would carry more weight were the list the only 

evidence of congressional intent. But it isn’t. Viewing the 

list in combination with the statute’s title and the legislative 

record as a whole, we think it clear that Congress never 

intended its “aggravated identity theft” statute to reach 

conduct like Villanueva-Sotelo’s. 

Next, pointing to some of the same legislative history 

recounted above, the government and dissent contend that 

Congress desired to make it easier for prosecutors “to convict 

identity thieves” and to enhance their punishments 

accordingly. H.R. Rep. No. 108-528, at 10; Dissenting Op. at 

9. We agree, but that begs the question before us: did 

Congress consider a defendant like Villanueva-Sotelo to be an 
21 

identity thief subject to prosecution under this statute? All of 

the legislative history the government cites presupposes the 

answer to that question. 

Finally, the government urges us to disregard the “brief” 

legislative discussion surrounding section 1028A(a)(1), 

Appellant’s Opening Br. 18, and to look instead to section 

1028(a)(7), a nearby provision amended at the same time 

Congress passed section 1028A(a)(1). See 18 U.S.C. § 

1028(a)(7) (“Whoever . . . knowingly transfers, possesses, or 

uses, without lawful authority, a means of identification of 

another person with the intent to commit, or to aid or abet, or 

in connection with, any unlawful activity that constitutes a 

violation of Federal law . . . shall be punished as provided 

. . . .”). Because we find plenty in section 1028A’s legislative 

history revealing congressional intent regarding that 

provision, we see little reason to look to other statutes for 

guidance. In any event, the legislative discussion surrounding 

section 1028(a)(7) offers the government no help. Congress 

amended section 1028(a)(7) to ease the prosecution of identity 

thieves who intend to use “another person’s means of 

identification” (note the use of the possessive form, see supra

at 8-9) to commit a felony, but have not yet actually done so. 

See H.R. Rep. No. 108-528, at 10-11. This tells us nothing 

about whether conduct like Villanueva-Sotelo’s amounts to 

“identity theft” in the first place. Moreover, according to the 

House Report, the amendment targeted those “who knowingly 

facilitate the operations of an identity-theft ring by stealing, 

hacking, or otherwise gathering in an unauthorized way other 

people’s means of identification, but who may deny that they 

had the specific intent to engage in a particular fraud 

scheme.” Id. at 11. Far removed from the issue we face here, 

that scenario underscores the extent to which Congress 

intended to single out and punish those who knowingly steal 

others’ identities. 
22 

In short, there is a salient difference between theft and 

accidental misappropriation. While Villanueva-Sotelo surely 

misappropriated someone else’s alien registration number, no 

evidence shows he stole it in any meaningful sense. As the 

first district court to interpret this statute observed, and as the 

government concedes, “it is odd—and borders on the 

absurd—to call what [the defendant] did ‘theft.’” United 

States v. Montejo, 353 F. Supp. 2d 643, 654 (E.D. Va. 2005), 

aff’d, 442 F.3d 213; see also No Need to Show ID Theft for an 

ID Theft Conviction, 30 NAT’L L.J., Dec. 3, 2007, at 14 

(describing the Eleventh Circuit’s decision in United States v. 

Hurtado, 508 F.3d 603). But “theft” is precisely what 

Congress targeted when it passed section 1028A(a)(1). 

Because Congress intended to express “the moral 

condemnation of the community,” United States v. Bass, 404 

U.S. 336, 348 (1971), by enhancing penalties for thieves who 

steal identities, we hold that section 1028A(a)(1)’s mens rea 

requirement extends to the “[a]ggravated identity theft” 

statute’s defining element—that the means of identification 

used belongs to another person. 

Even if we harbored any doubt about this—that is, were 

we unable to find “an unambiguous intent on the part of 

Congress”—we would “turn to the rule of lenity to resolve the 

dispute.” United States v. West, 393 F.3d 1302, 1311 (D.C. 

Cir. 2005); see also Moskal v. United States, 498 U.S. 103, 

108 (1990) (“[W]e have always reserved lenity for those 

situations in which a reasonable doubt persists about a 

statute’s intended scope even after resort to ‘the language and 

structure, legislative history, and motivating policies’ of the 

statute.” (quoting Bifulco v. United States, 447 U.S. 381, 387 

(1980))). Although “[t]he rule of lenity is not invoked by a 

grammatical possibility” and “does not apply if the 

ambiguous reading relied on is an implausible reading of the 
23 

congressional purpose,” Caron v. United States, 524 U.S. 

308, 316 (1998), the defendant’s reading is quite plausible. 

Thus, even if the legislative history failed to resolve the 

statute’s ambiguity, the rule of lenity would forbid us from 

“interpret[ing] a federal criminal statute so as to increase the 

penalty that it places on an individual when such an 

interpretation can be based on no more than a guess as to what 

Congress intended.” Ladner v.United States, 358 U.S. 169, 

178 (1958). 

IV. 

We have several additional reactions to the dissent. To 

begin with, its view of the statute is not entirely clear. The 

dissent first seems to agree that section 1028A(a)(1) is 

ambiguous, relying on legislative history to discern the 

statute’s meaning. See Dissenting Op. at 4-10. Elsewhere, 

however, the dissent concludes that the statute’s text is clear, 

making resort to legislative history and congressional intent 

unnecessary. See id. at 11-12. 

The dissent accuses us of grafting a common-law 

definition of theft onto the statute when what is required is 

“construction of the statute and . . . inference of the intent of 

Congress.” Id. at 5 (quoting Staples, 511 U.S. at 605). But as 

our discussion indicates, see supra at 15-22, we have done 

just what the dissent urges: construed the statute and inferred 

Congress’s intent using the everyday definition of “theft”—as 

found in section 1028A’s title and throughout its legislative 

history—as but one tool among others. 

The dissent next points to the same House Report 

language we do, see supra at 17-18, namely that “[t]he terms 

‘identity theft’ and ‘identity fraud’ refer to all types of crimes 

in which someone wrongfully obtains and uses another 

person’s personal data in some way that involves fraud or 
24 

deception.” H.R. Rep. No. 108-528, at 4. According to the 

dissent, this sentence, particularly its reference to “identity 

fraud,” means that “identity ‘theft’” must “be read 

generically.” Dissenting Op. at 6. Given the legislative 

record’s overwhelming number of references to “theft,” 

“thieves,” and “stealing,” plus the statute’s title and the 

Judiciary Committee’s many citations to examples of 

knowing theft, the report’s passing references to “identity 

fraud” hardly support a conclusion that Congress clearly 

intended to impose two additional years of punishment on a 

defendant who happens to pick a number that turns out to 

belong to someone else rather than one assigned to no one. In 

any case, unlike the dissent, we are prepared to acknowledge 

that although the vast weight of the legislative history 

supports our interpretation, some bits of it arguably cut the 

other way—namely, the evidence the dissent cites in support 

of its claim that “a primary purpose of the statute was to” 

ensure “that the punishment more closely fits the harm the 

crime causes its victim.” See Dissenting Op. at 8 & n.9. This 

concession, however, merely reinforces the need for the rule 

of lenity to resolve any remaining ambiguities, for “where 

text, structure, and history fail to establish that the 

Government’s position is unambiguously correct[,] we apply 

the rule of lenity and resolve the ambiguity in [the 

defendant]’s favor.” United States v. Granderson, 511 U.S. 

39, 54 (1994). 

The dissent cites a series of cases in which defendants 

engaged in otherwise culpable conduct were required to 

“ascertain at [their] peril whether [their actions] c[a]me[] 

within the inhibition of the statute.” Dissenting Op. at 18 

(quoting United States v. Freed, 401 U.S. 601, 609 (1971)). 

Unlike in those cases, however, here we have evidence that 

Congress intended to limit section 1028A(a)(1) to theft, and 
25 

we are bound to interpret the statute in light of that expressed 

intent. 

Next, the dissent points to 18 U.S.C. § 1546(a), which 

provides that “[w]hoever knowingly . . . uses . . . [an] alien 

registration receipt card . . . knowing it to be forged . . . [s]hall 

be fined under this title or imprisoned.” Id. (emphasis added). 

Reading this statute in pari materia with section 1028A(a)(1), 

which contains no similar repetition of the knowledge 

requirement, the dissent concludes that Congress could not 

have intended section 1028A(a)(1) to require a showing that 

the defendant knew the means of identification used belonged 

to another person. See Dissenting Op. at 12-13 & n.12. Even 

assuming the in pari materia doctrine applies here, sections 

1546(a) and 1028A(a)(1) are easily harmonized when read in 

tandem: defendants who use a false alien registration number 

are punished under the former statute (as was VillanuevaSotelo), while those who know that number belongs to 

someone else receive two additional years under the latter. 

In any event, we doubt whether in pari materia applies to 

these statutes. As the very treatise cited by our dissenting 

colleague explains, courts often ask four questions when 

deciding if statutes are similar enough to justify reading them 

in pari materia. The answers to all four questions counsel 

against applying the canon here. First, were “the two statutes 

. . . contained in the same legislative act”? 2B NORMAN J.

SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 51:3 (6th 

ed. 2000 & Supp. 2007-2008). Here, they weren’t. Second, 

do the two statutes require “the same elements of proof”? Id. 

Here, as the dissent emphasizes, they don’t. See Dissenting 

Op. at 14. Third, are the penalties the same for both statutes? 

2B SINGER, supra, § 51:3. Here, they’re not. And finally, 

were the two statutes “obviously designed to serve the same 

purpose and objective”? Id. Answering this last question 
26 

requires a bit more explanation. As the dissent points out, 

section 1028A(c)(7), which lists the many predicate offenses 

triggering the aggravated identity theft statute, incorporates by 

reference section 1546(a), and both statutes involve 

“possession of a false means of identification.” Dissenting 

Op. at 13 n.12. True enough, but section 1028A references as 

predicate offenses a myriad of other federal statutes whose 

subject matter includes such disparate topics as immigration, 

social security, embezzlement of public funds, visas, and 

firearms. See 18 U.S.C. § 1028A(c) (listing predicate felony 

offenses). We think it stretches the in pari materia canon 

beyond reason to apply it to such a wide swath of the United 

States Code. As for the dissent’s observation that sections 

1546(a) and 1028A share the same subject matter, 

“[c]haracterization of the object or purpose is more important 

than characterization of subject matter in determining whether 

different statutes are closely enough related to justify 

interpreting one in light of the other.” 2B SINGER, supra, § 

51:3. Here, the dissent claims that in passing the Identity 

Theft Penalty Enhancement Act, Congress’s “central concern 

[was] the damage caused by the wrongful use of another 

person’s identity.” Dissenting Op. at 8 n.9. That purpose, it 

goes without saying, differs from the one that animated 

section 1546(a)—a statute Congress first passed in its current 

form in 1948, long before “identity theft” entered the criminal 

lexicon or captured Congress’s attention a half-century later. 

See United States v. Campos-Serrano, 430 F.2d 173, 175 (7th 

Cir. 1970) (recounting the legislative history of 18 U.S.C. § 

1546); see also Identity Theft and Assumption Deterrence Act 

of 1998, Pub. L. No. 105-318, 112 Stat. 3007 (1998) 

(amending 18 U.S.C. § 1028 to include a section on identity 

theft). 

Of greater relevance to this case is a related canon of 

statutory construction: the “general principle . . . that when 
27 

‘Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is 

generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion.’” Sigmon 

Coal, 534 U.S. at 452 (emphasis added) (quoting Russello v. 

United States, 464 U.S. 16, 23 (1983)). As we noted above, 

see supra at 9-10, subsection 1028A(a)(2)—the terrorism 

offense provision—makes it a crime knowingly to use “a 

means of identification of another person or a false 

identification document,” id. (emphasis added), while 

subsection (a)(1)—the general offense provision—never 

mentions “false identification document[s].” Had Congress 

parroted subsection (a)(2)’s “false identification document” 

language in subsection (a)(1), Villanueva-Sotelo’s guilt would 

be plain. But Congress omitted that language for the two-year 

“general” offense enhancement while including it for the fiveyear “terrorism offense” enhancement—a decision that makes 

eminent sense given Congress’s heightened concern with the 

terrorist threat facing our country. See H.R. Rep. No. 108-

528, at 4 (explaining that “terrorist organizations increasingly 

turn to stolen identities to hide themselves from law 

enforcement”). We see no reason to read subsection (a)(2)’s 

language into subsection (a)(1) when Congress clearly could 

have placed it there itself. 

After concluding that “dueling canons of statutory 

construction” might fail to resolve the statute’s inherent 

ambiguity, the dissent appeals to “common sense” as an 

interpretive aide. Dissenting Op. at 15. First off, there is no 

duel: as we just explained, the canon the dissent cites is either 

inapplicable or supports our interpretation. More to the point, 

although common sense certainly plays a role in statutory 

construction, common sense does not excuse us from 

engaging in the thorny task of determining what Congress 

intended when it passed a statute. And here, in any event, to 
28 

return once more to Judge Friedman’s hypothetical, common 

sense tells us that a defendant ought not receive two 

additional years of incarceration for picking one random 

number rather than another—unless, of course, Congress has 

made clear that he should. Put another way, it’s only 

common sense to conclude that conviction under an identity 

theft statute requires actual theft. 

Finally, reproducing a troubling news report from 2006—

which was not before Congress when it passed the Identity 

Theft Penalty Enhancement Act two years earlier—showing 

how one victim’s social security number was used by eightyone different people across the country, see Dissenting Op. at 

10 n.11, the dissent wonders if Congress really could have 

intended to punish those individuals who knew they had 

stolen a real person’s number more severely than those who 

did not. The short answer to that question is yes. We see 

nothing unfathomable about Congress singling out certain 

morally culpable conduct for enhanced punishment, and 

section 1028A(a)(1)’s text, title, and legislative history reveal 

that Congress did precisely that. And again, even if the 

dissent’s reading is plausible, it is hardly inescapable—which 

leads us back to the rule of lenity. When and if Congress 

considers cases like the one described in the 2006 news 

article, it may well decide to extend the “[a]ggravated identity 

theft” statute’s reach, or to enhance the penalty still further. 

But that’s a decision for Congress, not this court. 

V. 

Two final points. First, we doubt that our interpretation 

of section 1028A(a)(1) will saddle the government with a 

burden it cannot meet. In each of the examples Congress 

cited, see supra at 18-19—as in most run-of-the-mill identity 

theft cases—proving the defendant knew the stolen 

identification belonged to another person should present no 
29 

major obstacle, as such knowledge will often be demonstrated 

by the circumstances of the case. For instance, when an 

individual obtains personal information by trolling through 

the victim’s garbage or by improperly viewing files to which 

the perpetrator gains access, he obviously knows the 

information belongs to someone else. And when an identity 

thief establishes credit, conducts transactions, or secures 

benefits in the victim’s name, the crime would make little 

sense if the information at issue belonged to no one. In that 

sense, this case differs from Chin, in which we found it 

“implausible that Congress would have placed on the 

prosecution the often impossible burden of proving, beyond a 

reasonable doubt, that a defendant knew the youth he enticed 

was under eighteen.” Chin, 981 F.2d at 1280. And if 

experience proves our prediction wrong and the burden too 

onerous, the government is free to ask Congress to limit the 

statute’s knowledge requirement. 

Second, as noted above, our interpretation does not mean 

that Villanueva-Sotelo escapes punishment for his crime, for 

he pled guilty to violating 18 U.S.C. § 1546(a), which 

provides: “Whoever knowingly . . . uses, attempts to use, 

possesses, obtains, accepts, or receives . . . [an] alien 

registration receipt card . . . knowing it to be forged . . . [s]hall 

be fined under this title or imprisoned.” Unlike section 

1028A(a)(1), that statute unambiguously criminalizes 

Villanueva-Sotelo’s conduct. We affirm. 

So ordered. 
1

Among the felony violations enumerated in subsection (c) is any

violation of “chapter 75 (relating to passports and visas).” 18 U.S.C.

§ 1028A(c)(7). Villanueva-Sotelo pleaded guilty to violating

subsection (7). See infra pp. 13–15.

2

On June 15, 1990, Villanueva-Sotelo was arrested in Oroville,

Washington for shoplifting. He pleaded guilty to misdemeanor theft

and was sentenced to 10 days in jail. On July 3, 1990, a United States

immigration judge ordered Villanueva-Sotelo’s removal from the

United States and he was deported to Mexico. See Factual Proffer in

Support of Guilty Plea 2. Villanueva-Sotelo re-entered the United

States and was again arrested in Washington State. He pleaded guilty

KAREN LECRAFT HENDERSON Circuit Judge, dissenting: 

At issue in this case is the proper interpretation of the

following language of the Identity Theft Penalty Enhancement

Act, Pub. L. 108-275, § 2(a), 118 Stat. 831 (ITPEA):

Whoever, 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 shall, in addition to the

punishment provided for such felony, be sentenced to

a term of imprisonment of 2 years.

18 U.S.C. § 1028A(a)(1) (emphasis added).1

 The majority

interprets this language to require that the Government prove

that the defendant knew “the ‘means of identification’ he

‘transfer[red], possesse[d], or use[d]’ actually belonged to

‘another person[.]’ ” Maj. Op. at 2 (quoting 18 U.S.C.

§ 1028A(a)(1)) (alterations in majority opinion). Because I

believe the majority misreads this language, I respectfully

dissent.

I.

The facts are not in dispute. Appellee Villanueva-Sotelo is

a Mexican national who has entered the United States illegally

at least three times and twice been returned to Mexico.2 On
2

to unauthorized re-entry of a removed alien (8 U.S.C. § 1326),

possession of false immigration documents (18 U.S.C. § 1546(a)) and

possession of five or more false identification documents with intent

to transfer (18 U.S.C. § 1028(a)(3)); he was sentenced to two months’

incarceration. On September 23, 1991 he was again ordered deported

to Mexico. See id.

3

Until 2003 the Card, commonly known as a “green card,” was

issued by the Immigration and Naturalization Service (INS) of the

U.S. Department of Justice. Since 2003, when many INS functions

were transferred to the newly-created Department of Homeland

Security, the U.S. Citizenship and Immigration Service (USCIS)

began issuing them. See 6 U.S.C. § 271(b); 8 U.S.C. § 1103. The

Card includes, inter alia, the alien’s name, photograph, date of birth,

country of origin, expiration date, fingerprint and an alien registration

number assigned to him by the USCIS. See, e.g., 8 U.S.C. §§ 1201,

1202(a)–(b), 1304(d) (requirements for immigrant visas); 8 C.F.R.

§ 264.5 (“Application for creation of record of permanent residence”).

August 5, 2006, he was arrested and charged with, inter alia,

aggravated identity theft under section 1028A(a)(1) after he

presented a false Permanent Resident Card (Card)3 to an officer

of the Metropolitan Police Department (MPD) in the District of

Columbia. See Indictment 2. Although the Card bore

Villanueva-Sotelo’s name and photograph, it contained a

registration number assigned to another person. VillanuevaSotelo admits knowing the Card was false; however, he

contends that he did not know the registration number belonged

to another person. For its part, the Government concedes that it

cannot prove that Villanueva-Sotelo knew the number belonged

to another person. See Gov’t Br. 5.

On May 11, 2006, the Government charged VillanuevaSotelo with unlawful re-entry of a removed alien (8 U.S.C.

§ 1326(a) and (b)(1)) (Count 1), possession of false immigration

documents (18 U.S.C. § 1546(a)) (Count 2) and aggravated

identity theft (18 U.S.C. § 1028A(a)(1)) (Count 3). Villanueva-
3

4

The district court thereby disagreed with the earlier decision of

another district judge that section 1028A(a)(1) does not require the

Government to prove that “the identification numbers on the

fraudulent documents belonged to an actual person.” United States v.

Contreras-Macedas, 437 F. Supp. 2d 69, 76 (D.D.C. 2006).

5

At the district court level there is also disagreement. The District

of Maine first concluded that section 1028A(a)(1)’s mens rea

requirement applies to “of another person” (by submitting to the jury

the question whether the defendant knew her false means of

identification belonged to someone else), United States v. Godin, 476

F. Supp. 2d 1, 3 (D. Me. 2007); it then reversed field and adopted the

Sotelo pleaded guilty to the first two counts but challenged the

aggravated identity theft count, arguing that under section

1028A(a)(1) the Government was required to establish that he

knew the Card he presented contained the registration number

“of another person.” The district court agreed and dismissed

Count 3, the aggravated identity theft count.4 The Government

then appealed and today the majority affirms the dismissal of

Count 3.

II.

At least two sister circuits have interpreted section

1028A(a)(1)’s language as unambiguously not requiring that the

defendant know that the false “means of identification” belongs

to another. United States v. Hurtado, 508 F.3d 603, 610 (11th

Cir. 2007); United States v. Montejo, 442 F.3d 213, 217 (4th

Cir.), cert. denied, 127 S.Ct. 366 (2006). A third circuit has

followed the Fourth Circuit’s rationale without additional

analysis. United States v. Hines, 472 F.3d 1038, 1039–40 (8th

Cir.), cert. denied, 128 S.Ct. 235 (2007). The majority’s

interpretation therefore causes a disfavored circuit split. See

United States v. Philip Morris USA Inc., 396 F.3d 1190, 1201

(D.C. Cir.) (“[W]e avoid creating circuit splits when

possible . . . .”), cert. denied, 546 U.S. 960 (2005).5

 Its
4

Fourth Circuit’s rationale. United States v. Godin, 489 F. Supp. 2d

118, 119 (D. Me. 2007). Other district courts have reached different

conclusions. Compare United States v. Beachem, 399 F. Supp. 2d

1156, 1158 (W.D. Wa. 2005) (§ 1028A(a)(1)’s knowledge

requirement applies to each element), and United States v.

Salazar-Montero, No. CR 07-2020, 2007 WL 3102096, at *13 (N.D.

Iowa Oct. 25, 2007) (same), with United States v. Montejo, 353 F.

Supp. 2d 643, 654 (E.D. Va. 2005) (§ 1028A(a)(1)’s knowledge

requirement does not modify “of another person”), and United States

v. Contreras-Macedas, 437 F. Supp. 2d 69, 79 (D.D.C. 2006) (same).

6

The decisions of the Supreme Court as well as of our Circuit have

held that similarly worded criminal statutes—i.e., statutes containing

the word “knowingly” followed by a verb or series of verbs, a direct

object and at least one prepositional phrase describing that object—are

ambiguous. See Liparota v. United States, 471 U.S. 419, 424, 425 n.7

(1985) (“ Either interpretation would accord with ordinary usage. ‘As

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 . . . .’ ” (quoting W. LaFave & A. Scott, Criminal Law § 27

(1972))); United States v. Chin, 981 F.2d 1275, 1279 (D.C. Cir. 1992)

(finding similarly structured criminal statute ambiguous: “One cannot

tell from the words alone whether the person’s juvenile status must be

known . . . .”), cert. denied, 508 U.S. 903 (1993); United States v.

Nofziger, 878 F.2d 442, 447(D.C. Cir. 1989) (finding similarly

structured criminal statute “ ‘is ambiguous. The statute can be read

either way.’ ” (quoting United States v. O’Brien, 686 F.2d 850, 852

(10th Cir. 1982)); cf. Arthur Andersen LLP v. United States, 544 U.S.

696, 705 (2005) (“We have recognized with regard to similar statutory

language that the mens rea at least applies to the acts that immediately

follow, if not to other elements down the statutory chain.”); see also

disagreement with the other circuits is two-fold: it first finds the

language ambiguous, see Maj. Op. at 4–15; it then construes the

ambiguity in the defendant’s favor. Maj. Op. at 22–23. Even if

the Fourth, Eighth and Eleventh Circuits incorrectly view the

language as unambiguous,6

 I nonetheless agree with their
5

McCreary v. Offner, 172 F.3d 76, 82–83 (D.C. Cir. 1999) (noting

other circuits’ differing interpretations of statute manifest statute is

ambiguous).

reading of the language that the Government need not establish

the defendant knew the false means of identification is that “of

another person.”

Because the majority views the provision as ambiguous, it

looks beyond the words to discern their meaning. It then

concludes that “ ‘the statutory structure, relevant legislative

history, [and] congressional purposes expressed in the

[statute]’ ” all support applying the knowledge requirement to

every element of section 1028A(a)(1). Maj. Op. at 15–16

(quoting Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 737

(1985)) (alterations in majority opinion). It first places great

emphasis on the word “theft” in the ITPEA’s title. Apparently

the majority believes that Villanueva-Sotelo’s conduct does not

constitute aggravated identity theft because his “accidental

misappropriation,” Maj. Op. at 22, of another’s identification

number—the “accident,” I assume, relating to his ignorance of

the fact that the identification he knows to be false is assigned to

another person—would not constitute “theft.” See Maj. Op. at

16 (“As th[e] title demonstrates, the statute concerns ‘theft,’ i.e.,

‘the felonious taking and removing of personal property with

intent to deprive the rightful owner of it.’ WEBSTER’S THIRD

NEW INTERNATIONAL DICTIONARY 2369 (1993) (emphasis

added); see alsoBLACK’S LAW DICTIONARY 1516 (8th ed. 2004)

(‘The felonious taking and removing of another’s personal

property with the intent of depriving the true owner of it.’)”).

According to the majority, the fact that the title uses the word

“theft” shows that the Congress intended “to single out

thieves—in the traditional sense of the word.” Id. But

determining the mens rea required to commit a federal offense

does not necessarily entail finding a “common-law” match.
6

7

Even assuming arguendo that we were required to harmonize

aggravated identity theft with common-law theft, could not the

majority’s view be inconsistent with the common law? See Maj. Op.

at 16 (defining “theft” as “ ‘the felonious taking and removing of

personal property with intent to deprive the rightful owner of it’ ”)

(emphasis added) (internal quotations omitted). In the majority’s

view, a defendant could be guilty of aggravated identity theft despite

Instead it involves the “ ‘construction of the statute and . . .

inference of the intent of Congress.’ ” Staples v. United States,

511 U.S. 600, 605 (1994) (quoting United States v. Balint, 258

U.S. 250, 253 (1922)) (ellipsis in original); see also Liparota,

471 U.S. 419, 424 (1985) (“The definition of the elements of a

criminal offense is entrusted to the legislature, particularly in the

case of federal crimes, which are solely creatures of statute.”

(citing United States v. Hudson, 11 U.S. (7 Cranch) 32 (1812)).

Here the Congress has made clear—in discussing the same title

the majority reads as limited to common-law theft—that identity

“theft” is a much broader offense than the majority prefers. The

House Judiciary Committee Report accompanying the ITPEA

explains that “the terms ‘identity theft’ and ‘identity fraud’ refer

to all types of crimes in which someone wrongfully obtains and

uses another person’s personal data in some way that involves

fraud or deception, typically for economic or other gain,

including immigration benefits.” H.R. Rep. No. 108–528, at 4

(2004) (emphases added) (House Report); see also id. at 25

(statement of Rep. Coble) (“Identity theft and identity fraud are

terms used to refer to all types of crimes in which an individual’s

personal or financial data is misused, typically for economic

gain or to facilitate another criminal activity.” (emphasis

added)). The Congress’s synonymizing “identity theft” and

“identity fraud”—followed by a definition that includes “all

types” of crime “that involve[] fraud or deception”—could not

make clearer that identity “theft” is meant to be read

generically.7
7

not having “take[en]” or “remov[ed]” another’s “personal property”

so long as he knows the false identification belongs to another. Nor

does the identity thief “deprive” the owner of the latter’s means of

identification—if anything, he “shares” the owner’s identity.

Moreover, depending on the context, “theft” often has a broader

meaning than the common-law definition. See, e.g., Montejo, 353 F.

Supp. 2d at 654 (“While ‘theft’ is a popular term often identified with

‘larceny,’ the word ‘theft’ [can also be] an umbrella term which

includes other forms of wrongful taking.” (quoting McLaughlin v. City

of Canton, Miss., 945 F. Supp. 954, 970 n.18 (S.D. Miss. 1995)));

WEBSTER’S THIRD NEW WORLD DICTIONARY 2369 (including, in

addition to the common-law definition of “theft”—which the majority

cites—,“taking of property unlawfully”); BLACK’S LAW DICTIONARY

1486 (7th ed. 1999) (noting that theft, in addition to its common-law

definition, can also mean “[b]roadly, any act or instance of stealing.”).

The majority dismisses the House Report’s discussion of

the breadth of “identity theft” by positing that the Congress did

not consider “imagin[ing] a string of random numbers” to be a

“wrongful[]” way of possessing and/or using another person’s

“means of identification.” See Maj. Op. at 18 (emphasis added).

To support this notion, the majority points to a section of the

House Report that includes several examples of techniques

commonly used in identity theft (e.g., “ ‘dumpster diving,’ ”

“ ‘hack[ing] into computers,’ ” and “ ‘steal[ing] paperwork

likely to contain personal information,’ ” id. (quoting H.R. Rep.

No. 108-528, at 4–5)) and lists “a string of cases in which

convicted identity thieves escaped with relatively light

sentences, all of which involved defendants who, unlike

Villanueva-Sotelo, knew the identification they used belonged

to another.” Id. Finally, the majority highlights two statements

from the floor debate to the same effect. Id. at 18 (quoting 150

Cong. Rec. H4809 (daily ed. June 23, 2004) (statement of Rep

Sensenbrenner) (noting that “identity thieves” “sometimes

[steal] hundreds or even thousands of identities”); id. at H4810
8

8

Indeed, the House Report fails to mention other common forms

of identity theft, e.g., a parent misappropriating a child’s identity, see

e.g., John Leland, Identity Thief Is Often Found in Family Photo, N.Y.

TIMES, Nov. 13, 2006, at A1 (describing parent-child identity fraud as

commonplace).

9

See 150 Cong. Rec. H4811 (statement of Rep. Schiff) (‘A victim

of identity theft usually spends a year and a half working to restore his

or her identity and good name . . . . The current sentencing structure

and practice is flawed because it does not reflect the impact on the

victim, in addition to the impact and loss to the financial institution.”).

The Congress’s central concern with the damage caused by the

wrongful use of another person’s identity rings throughout the

legislative history. See, e.g., H.R. Rep. No. 108–528, at 4 (“[T]he loss

to businesses and financial institutions from identity theft [is

estimated] to be $47.6 billion. The costs to individual consumers are

(statement of Rep. Carter) (noting case wherein “Texas driver’s

license bureau clerk pleaded guilty to selling ID cards to illegal

immigrants using stolen information from immigration

papers”)). To make the strongest argument for the enactment of

the ITPEA, however, the drafters of the House Report

understandably highlighted the most notorious cases in which

defendants had received “light” punishment under the thenexisting law. That a crime like Villanueva-Sotelo’s—i.e., the

knowing use of an false identification without also knowing the

false identification belongs to another person—did not make the

“worst case” list does not mean that Villanueva-Sotelo’s conduct

is not covered by section 1028A(a)(1).8

Indeed, I read the House Report to expressly manifest that

the Congress did consider Villanueva-Sotelo’s conduct covered.

A primary purpose of the statute was to increase the punishment

for a defendant who “wrongfully obtains and uses another

person’s personal data,” H.R. Rep. No 108-528 at 4 (emphasis

added), so that the punishment more closely fits the harm the

crime causes its victim.9

 In concluding that the examples of
9

estimated to be approximately $5.0 billion.”); id. at 25 (statement of

Rep. Coble) (“In 2002, the FTC received 161,819 victim complaints

of compromised personal information . . . . [These] victims have a

difficult time consuming [sic] an expensive task of repairing a

damaged credit history as well as their respective reputations.”); id. at

35 (statement of Rep. Scott) (“[T]he FTC reports [consumer identity

theft] bilked almost 30 million Americans out of approximately $50

billion over the last 5 years, with about $5 billion of that

out-of-pocket, unrecovered losses to consumers.”); id. at 44 (“Identity

theft victims now spend an average of 600 hours—often over a period

of years—recovering from the crime. Being a victim costs an average

of $1,400 in out-of-pocket expenses . . . .”); id. at 51 (statement of

Rep. Schiff) (noting that purpose of ITPEA is “to protect the good

credit and reputation of hard-working Americans”).

The Congress also enacted the ITPEA in order to increase the

penalty for a terrorist who possesses a false means of identification.

See 18 U.S.C. § 1028A(a)(2) (mandating five-year consecutive prison

term for “knowingly transfer[ing], possess[ing] or us[ing], without

lawful authority, a means of identification of another person or a false

identification document” “during and in relation to any felony

violation enumerated in section 2332b(g)(5)(B)” (i.e., a terrorism

offense)); H.R. Rep. No 108–528, at 3 (“The bill also amends current

law to impose a higher maximum penalty for identity theft used to

facilitate acts of terrorism.”); id. at 4 (“[A]l Qaida and other terrorist

organizations increasingly turn to stolen identities to hide themselves

from law enforcement.”). Significantly, the five-year consecutive

sentence is to be imposed whether or not the false identification is that

“of another person,” manifesting that scienter “of another person” is

not required.

“identity theft” included in the House Report exhaustively

describe the types of “wrongful” behavior the Congress intended

to sanction, the majority has lost sight of the Congress’s primary

objective—stopping the nation-wide identity theft tidal wave by

upping the ante for the thief. It is preposterous to think the same

Congress that so plainly and firmly intended to increase the

penalty—“a mandatory consecutive penalty enhancement of 2
10

10Must the government also prove the defendant knows “another

person[’s]” identity? I assume even the majority would not offer that

reading.

11I note just one example of a result that can fit within the

majority’s seemingly benign “accidental misappropriation” label, Maj.

Op. at 22:

One woman’s Social Security identification number has

been used by at least 81 people in 17 states. . . . [I]nformation

gleaned from criminal investigations, tax documents and other

sources suggest most of the users were probably illegal

immigrants trying to get work.

Audra Schmierer, a 33-year-old housewife in this affluent

San Francisco suburb, realized she had a problem in February

2005, when she got a statement from the IRS saying she owed

years”—if the defendant possesses another’s means of

identification “in order to commit a serious federal predicate

offense,” id. at 10, would then so limit its imposition as to

require the Government to prove that the defendant knows he

wrongfully possesses the identity “of another person.”10 In this

respect, the majority ignores reality in “doubt[ing] that [its]

interpretation of section 1028A(a)(1) will saddle the government

with a burden it cannot meet.” Maj. Op. at 28. Except for the

forger himself, proving beyond a reasonable doubt that each of

the thousands, if not millions, of holders of false green cards

knows that the false means of identification he possesses is that

“of another person” would “place[] on the prosecution [an] often

impossible burden.” United States v. Chin, 981 F.2d 1275, 1280

(D.C. Cir. 1992), cert. denied, 508 U.S. 923 (1993). The

legislative history persuades me that the Congress considered

the unauthorized use of another person’s means of identification

to be “wrongful” and therefore covered by section 1028A(a)(1)

whether done by “dumpster diving,” “hacking into a computer

system” or “imagining a string of numbers.”11
11

$15,813 in back taxes—even though she had not worked since

her son was born in 2000. Perhaps even more surprising, the

taxes were due from jobs in Texas.

Schmierer has since found that her Social Security

number has been used by people from Florida to Washington

state, at construction sites, fast-food restaurants and even

major high-tech companies. Some opened bank accounts

using the number.

* * *

Under current law, if the Social Security Administration

or the Internal Revenue Service find multiple people using the

same Social Security number, the agencies send letters

informing employers of possible errors.

The IRS can fine employers $50 for each inaccurate

number filed, a punishment that companies often dismiss as

just another cost of doing business.

“Sending letters is the limit to what can be done,” Social

Security spokesman Lowell Kepke said. “We expect that will

be able to fix any records that are incorrect.”

The information on mismatched names is seldom shared

with law enforcement agencies.

* * *

Schmierer has done a little investigating of her own,

combing through tax bills sent to her for names and locations

of employers who hired people using her number.

She has also obtained more than 200 W-2 and 1099 tax

forms that contained her Social Security number but different

names.

* * *

Schmierer filed a police report after learning one man had

used her information in 2003 at janitorial and landscaping
12

companies near Haltom City, Texas.

Investigators found the man, who told officers he had

bought a fake Social Security card at a flea market, according

to a police report. He was not arrested.

* * *

What started as a hassle turned into a major headache

earlier this year when she sought work through a temporary

agency that learned her Social Security number had been used

by a woman in Texas two years earlier. The agency could not

hire Schmierer for more than a month while the situation was

clarified.

“How do you prove that you are you?” Schmierer said.

“It’s like you are guilty until proven innocent.”

While returning from a trip to Mexico with her husband

last year, Schmierer was detained for four hours in a Dallas

airport by immigration officials. The reason: a woman using

her Social Security number was wanted for a felony.

* * *

Schmierer’s number became so compromised that Social

Security officials finally took a rare step used only in extreme

cases: They gave her a new one.

Peter Prengaman, One Social Security Number, 81 People, CBS

NEWS, June 17, 2006, available at http://www.cbsnews.com/

stories/2006/06/17/national/main1726397.shtml?source=RSS&attr=

HOME_1726397.

Whether the people who had these cards had obtained Schmeier’s

social security number through “dumpster diving,” “hacking into a

computer system” or simply “imagining a string of numbers,” the

harm Schmierer suffers is the same. Can the Congress really have

intended to prevent the repetition of nightmares like Schmierer’s by

punishing more severely only that thief (from among the 81) who

knows that the purloined social security number is a real one?
13

The majority points out the obvious fact that this news report postdates by some two years the enactment of the ITPEA. Maj. Op. at 28.

I highlight it, of course, not as legislative history but as an example of

what the majority’s oxymoronic “accidental misappropriation”

interpretation will work.

But resort to legislative history and congressional intent is

not even necessary if the meaning of the language is discernible

from a construction of the language under review together with

language in pari materia. We have often held that if the

Congress had intended language in legislation to have a certain

disputed meaning, “it would have said so more clearly.”

Bluewater Network v. E.P.A., 370 F.3d 1, 18 (D.C. Cir. 2004);

see also Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995);

Consumer Fed’n of Am. v. U.S. Dep’t. of Health & Human

Servs, 83 F.3d 1497, 1503 n.6 (D.C. Cir. 1996) (“[H]ad

Congress [so] intended . . ., it presumably would have drafted

the statute differently . . . .”). Here the Congress “could have

drafted the statute to prohibit the knowing transfer, possession,

or use, without lawful authority, of the means of identification

‘known to belong to another actual person.’ ” United States v.

Hurtado, 508 F.3d 603, 609 (11th Cir. 2007). This is precisely

what the Congress did in 18 U.S.C. § 1546(a)—the predicate

offense Villanueva-Sotelo pleaded guilty to in Count 2,

triggering the enhanced penalty of section 1028A(a)(1). Section

1546(a) makes it illegal to:

utter[], use[], attempt[] to use, possess[], obtain[],

accept[], or receive[] any [forged, counterfeited, altered

or falsely made] . . . document prescribed by statute or

regulation . . . as evidence of authorized stay or

employment in the United States, knowing it to be

forged, counterfeited, altered, or falsely made, or to

have been procured by means of any false claim or
14

12“Statutory provisions in pari materia normally are construed

together to discern their meaning.” Motion Picture Ass’n of Am., Inc.

v. FCC, 309 F.3d 796, 801 (D.C. Cir. 2002) (citing Erlenbaugh v.

United States, 409 U.S. 239, 244 (1972)).

 To be in pari materia, statutes need not have been

enacted simultaneously or refer to one another. . . .

However, the rule that statutes in pari materia should

be construed together has the greatest probative force

. . . or in the case where the later of two or more

statutes relating to the same subject matter refers to

the earlier. In these situations the probability that

acts relating to the same subject matter were based on

the same policy is very high.

2B SUTHERLAND STATUTORY CONSTRUCTION § 51:3 (6th ed. 2000)

(emphases added) (footnotes omitted); see, e.g., Estate of Hendrick v.

Comm’n, 918 F.2d 1263, 1266 (6th Cir. 1990) (tax statutes

“ ‘specifically cross referenc[ing]’ ” each other construed in pari

materia) (quoting Estate of Leder v. Comm’n, 893 F.2d 237, 241 (10th

Cir. 1989)); United States v. Rodriguez, 60 F.3d 193, 196 (5th Cir.

1995) (“explicit cross reference” supported construing U.S.S.G.

§ 5C1.2 and Fed. R. Crim. P. 32(c) in pari materia); Mimkon v. Ford,

332 A.2d 199, 203 (N.J. 1975) (“[T]he rule most obviously

applies . . . . where [the statutes in question] make specific reference

to one another . . . .” (citing 2A SUTHERLAND STATUTORY

statement, or to have been otherwise procured by fraud

or unlawfully obtained.

18 U.S.C. § 1546(a) (emphasis added). By this language the

Congress plainly intended that Villanueva-Sotelo know that the

Card he presented to the MPD officer was forged, counterfeited,

altered or falsely made. The fact that the Congress chose not to

use the same language in section 1028A(a)(1)—a provision

whose enhancement expressly incorporates 18 U.S.C. § 1546(a)

(with its differing language) and which therefore must be given

a construction in pari materia12—persuades me that it did not
15

CONSTRUCTION § 51.03 (Sands ed. 1973)); Keith v. Lockhart, 88 S.E.

640, 642 (N.C. 1916) (construing two statutes in pari materia when

“the later statute . . . in express terms refers to . . . the former).

Because Section 1028A(c)(7) expressly incorporates by reference

section 1546(a) and because both sections, as well as section

1028A(a)(1), relate to the same subject matter (possession of a false

means of identification), they are to be construed in pari materia.

13See, e.g., 18 U.S.C. § 922(q)(2)(A) (“It shall be unlawful for any

individual knowingly to possess a firearm that has moved in or that

otherwise affects interstate or foreign commerce at a place that the

individual knows, or has reasonable cause to believe, is a school

zone.”) (emphases added).

intend to require Villanueva-Sotelo to know that the Card he

presented was that “of another person” in order to violate section

1028A(a)(1). If it had so intended, it would have phrased

section 1028A(a)(1) as explicitly as it did section 1546(a); for

example, “a means of identification known to belong to another

person.”13 The fact that Villanueva-Sotelo is, in my view, guilty

of both Count 2 (which he admits) and Count 3 (of which he

professes his innocence) based on the same mens rea does not

mean the charges are duplicative. Villanueva-Sotelo can

commit the predicate offense set out in section 1546(a) whether

or not the false means of identification belongs to another; if it

does belong to another, that is, if it fits the description set out in

section 1028A(a)(1), Villanueva-Sotelo has also committed the

“aggravated” offense and thereby added a mandatory two-years’

consecutive imprisonment to his punishment.

Moreover, a comparison of sections 1028A(a)(1) and

1028A(a)(2) also demonstrates that the Congress did not intend

“knowingly” to modify “of another person.” Subsection (a)(2)

provides for a five-year penalty enhancement for anyone who

“during and in relation to” a terrorist act (per 18 U.S.C.

§ 2332b(g)(5)(B)):
16

14Construing 1028A(a)(1) and 1028A(a)(2) together also reveals

that the majority’s emphasis on the word “theft” in the ITPEA’s title

is misplaced. Under the second prong of section 1028A(a)(2) a

defendant can be convicted of aggravated identity theft despite the fact

that he has not misappropriated—accidently or otherwise—another

person’s identity. That the knowing possession of “a false

identification document” suffices to violate section 1028A(a)(2)

makes clear that the Congress intended identity “theft” to be construed

broadly—in some instances not even requiring the “traditional” theft

the majority describes.

knowingly transfers, possesses, or uses, without lawful

authority, [1] a means of identification of another

person or [2] a false identification document . . . .

18 U.S.C. § 1028A(a)(2) (emphasis added). The second prong

of this subsection demonstrates the Congress’s intent that a

terrorist’s knowledge that he possesses a “false” identification

document supplies all the culpability necessary to commit

aggravated identity theft. Thus, when subsection (a)(1) uses the

identical phrase in speaking of one who “knowingly . . .

possesses . . ., without lawful authority, a means of identification

of another person,” the scienter requirement is satisfied if the

defendant knows that he possesses “a means of identification”

“without lawful authority.” The phrase “of another person” is,

in effect, jurisdictional language describing the “means of

identification” that triggers an additional penalty.14

Both the majority and I spill a lot of ink on dueling canons

of statutory construction. See supra pp. 13–16; Maj. Op at

4–10, 25–28. Perhaps our exchange illustrates little more than

that, in construing statutes, courts have a variety of interpretive

aids to choose from. The first principle of statutory

construction, however, is to apply common sense in the reading

of language. See United States v. Howell, 78 U.S. 432, 436

(1870) (“[O]ne of the first canons of construction teaches us to
17

avoid if possible [a result] which is at war with the common

sense . . . .”); Roschen v. Ward, 279 U.S. 337, 339 (1929)

(“[T]here is no canon against using common sense in construing

laws as saying what they obviously mean.”); Nat’l Rifle Ass’n of

Am., Inc. v. Reno, 216 F.3d 122, 127 (D.C. Cir. 2000). Common

sense tells me that the Congress, seeking to stop a type of crime

that is increasing on an almost daily basis, enhanced the penalty

to effect its purpose. And it is anything but common sense to

conclude that the same Congress intended to gut that enhanced

penalty, as the majority’s reading does.

Finally, I believe the majority misinterprets Supreme Court

precedent. That precedent teaches that “[t]he presumption in

favor of scienter requires a court to read into a statute only that

mens rea which is necessary to separate wrongful conduct from

‘otherwise innocent conduct.’ ” Carter v. United States, 530

U.S. 255, 256–57 (2000) (quoting United States v. X-Citement

Video, Inc., 513 U.S. 64, 72 (1994)) (first emphasis added). For

example, in Liparota v. United States, 471 U.S. 419 (1985), the

Supreme Court interpreted the mensrea requirement of a statute

which prohibited “knowingly us[ing], transfer[ing], acquir[ing],

alter[ing], or possess[ing] [food] coupons,” 7 U.S.C.

§ 2024(b)(1), “in any manner not authorized by statute or

regulations.” Liparota, 471 U.S. at 426. At issue was whether

the “knowledge” requirement applied to each element of the

offense—i.e., whether the defendant was required to know that

he was using food stamps “in a manner not authorized by statute

or regulations.” Liparota, 471 U.S. at 426. The Court found the

language of the food stamp statute ambiguous and noted that the

legislative history did not clarify the scope of the mens rea

requirement. See id. at 424–25. The Court ultimately held that

the “knowledge” requirement applied to each element of the

offense, emphasizing its desire to avoid “criminaliz[ing] a broad
18

15The Court explained:

[The statute] declares it criminal to use, transfer, acquire,

alter, or possess food stamps in any manner not authorized by

statute or regulations. The statute provides further that

“[c]oupons issued to eligible households shall be used by

them only to purchase food in retail food stores which have

been approved for participation in the food stamp program at

prices prevailing in such stores.” 7 U.S.C. § 2016(b) . . .

This seems to be the only authorized use. A strict reading of

the statute with no knowledge-of-illegality requirement would

thus render criminal a food stamp recipient who, for example,

used stamps to purchase food from a store that, unknown to

him, charged higher than normal prices to food stamp

program participants. Such a reading would also render

criminal a nonrecipient of food stamps who “possessed”

stamps because he was mistakenly sent them through the mail

due to administrative error, “altered” them by tearing them up,

and “transferred” them by throwing them away. Of course,

Congress could have intended that this broad range of conduct

be made illegal, perhaps with the understanding that

prosecutors would exercise their discretion to avoid such

harsh results. However, given the paucity of material

suggesting that Congress did so intend, we are reluctant to

adopt such a sweeping interpretation.

Liparota, 471 U.S. at 426–27 (emphases and alterations in original)

(citations and footnote omitted).

16The statute allowed criminal charges to be brought against any

person who “knowingly transports or ships in interstate or foreign

range of apparently innocent conduct.”15 Id. at 426.

In United States v. X-Citement Video, Inc., 513 U.S. 64

(1994), the Supreme Court expressed the same concern in

interpreting a statute which criminalized “knowingly”

transporting, shipping, receiving, distributing or reproducing

sexually explicit material involving minors.16 The Court
19

commerce . . . any visual depiction, if . . . the producing of such visual

depiction involves the use of a minor engaging in sexually explicit

conduct.” 18 U.S.C. § 2252(a).

believed that under the “most grammatical reading of the

statute,” id. at 70, “knowingly” would modify only the

immediately surrounding verbs(i.e., “transports or ships”). This

construction, however, would allow conviction even if the

defendant was not aware that the materials were sexually

explicit or that the actors were minors. Id. at 68. The Court

chose not to give the “most natural,” id., reading of the statute,

instead extending the mens rea requirement to each element of

the offense. It explained that “the presumption in favor of a

scienter requirement should apply to each of the statutory

elementsthat criminalize otherwise innocent conduct.” Id. at 72

(discussing Morissette v. United States, 342 U.S. 246 (1952) and

Staples v. United States, 511 U.S. 600 (1994)). Otherwise:

a retail druggist who returns an uninspected roll of

developed film to a customer “knowingly distributes”

a visual depiction and would be criminally liable if it

were later discovered that the visual depiction

contained images of children engaged in sexually

explicit conduct. Or, a new resident of an apartment

might receive mail for the prior resident and store the

mail unopened. If the prior tenant had requested

delivery of [explicit] materials . . . his residential

successor could be prosecuted for “knowing receipt” of

such materials. Similarly, a Federal Express courier

who delivers a box in which the shipper has declared

the contents to be “film” “knowingly transports” such

film. We do not assume that Congress, in passing

laws, intended such results.

Id. at 69–70. The Court characterized this result as “not merely
20

17Until today, our decisions have been to the same effect. For

example, in United States v. Chin, 981 F.2d 1275 (D.C. Cir. 1992),

cert. denied, 508 U.S. 923 (1993), we held that under 21 U.S.C.

§ 861(a)(2)—which prohibits anyone who illegally distributes a

controlled substance from “knowingly and intentionally . . .

employ[ing] . . . a person under eighteen years of age to assist”—the

Government need not prove the defendant knew his accomplice was

under eighteen. We noted that “this is not an instance in which a

broad interpretation of a statute threatens to criminalize ‘apparently

innocent conduct.’ ” Id. at 1280 (quoting Liparota, 471 U.S. at 426).

We explained that “[a] conviction under 21 U.S.C. § 861(a)(2) can be

had only upon proof that the person knowingly and intentionally” used

another person to distribute controlled substances. Id. Because the

distribution of narcotics is hardly an innocent act, we held that the

Government was not required to prove that the defendant knew his

accomplice was under eighteen. Cf. United States v. Williams, 922

F.2d 737, 738–39 (11th Cir.) (interpreting same subsection and

concluding Government need not prove defendant knew minor’s age),

cert. denied, 502 U.S. 892 (1991); United States v. Valencia-Roldan,

893 F.2d 1080, 1083 (9th Cir.) (same), cert. denied, 495 U.S. 935

(1990); United States v. Carter, 854 F.2d 1102, 1108–09 (8th Cir.

1988) (same). In United States v. Holland, 810 F.2d 1215, 1223–24

(D.C. Cir.), cert. denied, 481 U.S. 1057 (1987); we held that under 21

U.S.C. § 845a (recodified as 21 U.S.C. § 860)—which prohibited the

sale of controlled substances within 1000 feet of a elementary or

secondary school—the Government need not prove that the defendant

knew that a school was within 1000 feet because such reading was not

necessary to avoid “criminaliz[ing] a broad range of apparently

innocent conduct.’ ” Id. at 1223.

odd, but positively absurd.” Id. at 69.17

There is no similar danger that innocent or unwitting

conduct might be penalized under section 1028A(a)(1) because

a conviction can be had only if the defendant has used another

person’s means of identification during or in relation to one of
21

18As noted earlier, Villanueva-Sotelo admitted knowing the Card

he possessed was false and that his possession of the Card was illegal,

see Factual Proffer 3, unlike the Liparota defendant who professed his

ignorance of any unlawful conduct.

19The Feola Court reasoned that:

[its] interpretation [of § 111] poses no risk of unfairness to

defendants. It is no snare for the unsuspecting. Although the

perpetrator . . . may be surprised to find that his intended

victim is a federal officer in civilian apparel, he nonetheless

knows from the very outset that his planned course of conduct

is wrongful. The situation is not one where legitimate

conduct becomes unlawful solely because of the identity of

the individual [victim]. . . . [T]he offender takes his victim as

he finds him.

Feola, 420 U.S. at 685.

the felony offenses enumerated in section 1028A(c).18 Section

1028A(a)(1) functions as any “other federal law[] which

provide[s] enhanced penalties or allow[s] conviction for

obviously antisocial conduct upon proof of a fact of which

defendant need not be aware.’ ” United States v. Montejo, 442

F.3d 213, 216–17 (4th Cir. 2006) (quoting United States v.

Cook, 76 F.3d 596, 601 (4th Cir. 1996)); see, e.g., United States

v. Feola, 420 U.S. 671, 684 (1975) (upholding penalty

enhancement under 18 U.S.C. § 111 for any person who assaults

federal officer whether or not he knows victim is, in fact, federal

officer);19 see also United States v. LaPorta, 46 F.3d 152, 158

(2d Cir. 1994) (defendant not required to know torched building

was government property because “[a]rson is hardly otherwise

innocent conduct” (quotation omitted)); United States v. Falu,

776 F.2d 46, 50 (2d Cir. 1985) (Drug Free School Zone Act:

“This construction . . . does not criminalize otherwise innocent

activity”); United States v. Hamilton, 456 F.2d 171, 172–73 (3d

Cir.) (in Mann Act prosecution, defendant not required to know
22

20I believe the rule of lenity is inapplicable here, even if only as an

alternative holding. See Maj. Op. at 22–23. See Chapman v. United

minor transported across state line for immoral purpose was

under eighteen; “knowingly” held to refer only to act of

transportation), cert. denied, 406 U.S. 947 (1972). In these

cases—where the defendant can “hardly be surprised to learn

that [his behavior] is not an innocent act,” see United States v.

Freed, 401 U.S. 601, 609 (1971)—the courts have made it the

defendant’s duty to “ ‘ascertain[,] at his peril whether [his

actions] come[] within the inhibition of the statute.’ ” Id.

(quoting United States v. Balint, 258 U.S. 250, 253–54 (1922)).

It is well settled that we must “presum[e] that Congress was

aware of [the Court’s] . . . judicial interpretations,” Keen Corp.

v. United States, 508 U.S. 200, 212 (1993), including “[t]he

presumption in favor of scienter [that] generally requires a court

to read into a statute only that mens rea which is necessary to

separate wrongful conduct from ‘otherwise innocent conduct.’

” Carter, 530 U.S. at 257 (quoting X-Citement Video, 513 U.S.

at 72) (first emphasis added). Applying the presumption here,

I cannot help but conclude that the Congress intended the

violation of section 1028A(a)(1) to hinge on the defendant’s

knowing use of a means of identification known to be false

without his also having to know the false identification is that

“of another person.”

In sum, I would hold, as has every other circuit that has

construed this language, see United States v. Montejo, 442 F.3d

213 (4th Cir.), cert. denied, 127 S.Ct. 366 (2006); United States

v. Hines, 472 F.3d 1038 (8th Cir.), cert. denied, 128 S.Ct. 235

(2007); United States v. Hurtado, 508 F.3d 603 (11th Cir. 2007),

that section 1028A(a)(1) of the ITPEA does not require the

Government to prove that the defendant know that the false

“means of identification” he possesses is that “of another

person.” 18 U.S.C. § 1028A(a)(1).20 Accordingly, I would
23

States, 500 U.S. 453, 463 (1991) (rule of lenity “is not applicable

unless there is a ‘grievous ambiguity or uncertainty in the language

and structure of the Act,’ . . . such that even after a court has ‘seize[d]

everything from which aid can be derived,’ it is still ‘left with an

ambiguous statute.’ ”) (quoting Huddleston v. United States, 415 U.S.

814, 831 (1974); United States v. Bass, 404 U.S. 336, 347 (1971)). To

the extent the relevant language is ambiguous, it is far from

“grievously” so; legislative history and statutory language in pari

materia clear it up nicely.

reverse the district court’s dismissal of Count 3, charging

Villanueva-Sotelo with a violation of 18 U.S.C. § 1028A(a)(1).