Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion *

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 08-10255

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

EFREN MARTINEZ

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:07-CR-203-1

Before DAVIS, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

Efren Martinez appeals following his guilty plea convictions for conspiracy

to possess, produce, and transfer false identification documents and to possess

document-making implements (Count 1); unlawful transfer of false identification

documents (Count 2); unlawful possession and aiding and abetting unlawful

possession of false identification documents with intent to use and transfer

unlawfully (Count 4); unlawful possession and aiding and abetting unlawful

United States Court of Appeals

Fifth Circuit

F I L E D

April 21, 2009

Charles R. Fulbruge III

Clerk
No. 08-10255

2

possession of document-making implements to produce false identification

documents (Count 5); and aggravated identity theft (Count 6).

Martinez argues that the district court erred by applying the nine-level

enhancement under U.S.S.G. § 2L2.1(b)(2)(C) on the ground that Counts 1, 2, 4,

and 5 involved 100 or more documents. Because Martinez did not object on this

basis in the district court, this issue is reviewed for plain error only. See United

States v. Baker, 538 F.3d 324, 332 (5th Cir. 2008), cert. denied, 129 S. Ct. 962

(2009). At Martinez’s sentencing, a special agent of Immigrations and Customs

Enforcement testified that Martinez’s apartment contained, among other items

used to create false identification documents, over 100 sheets of stock paper

simulating green cards and social security cards. The district court did not

commit plain error in applying the nine-level enhancement under

§ 2L2.1(b)(2)(C). See United States v. Salazar, 70 F.3d 351, 351-52 (5th Cir.

1995).

Martinez also argues that the district court erred in finding that a factual

basis existed to support his guilty plea as to aggravated identity theft under 18

U.S.C. § 1028A. Martinez contends that he never admitted knowing that the

means of identification he was using belonged to another person. Martinez

argues that such knowledge is an element of § 1028A. Because this argument

is raised for the first time on appeal, plain error review applies. See United

States v. Palmer, 456 F.3d 484, 489 (5th Cir. 2006). 

Section 1028A imposes a consecutive two-year sentence on anyone who

during particular enumerated offenses “knowingly transfers, possesses, or uses,

without lawful authority, a means of identification of another person.”

§ 1028A(a)(1). Martinez argues that the word “knowingly” modifies not only the

phrase “transfers, possesses, or uses” but also the phrase “a means of

identification of another person,” such that the Government was required to

prove that a defendant knew that the means of identification belonged to
No. 08-10255

3

another person. Martinez alternatively argues that § 1028A(a)(1) is ambiguous

and that it should be interpreted in his favor pursuant to the rule of lenity. 

We have not considered this issue. The First, Ninth, and D.C. Circuits

have held that the Government must prove under § 1028A that the defendant

actually knew that the means of identification belonged to another person.

United States v. Godin, 534 F.3d 51, 61 (1st Cir. 2008); United States v.

Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir. 2008); United States v. VillanuevaSotelo, 515 F.3d 1234, 1246 (D.C. Cir. 2008), petition for cert. filed (Nov. 7, 2008)

(No. 08-622). The Eighth, Eleventh, and Fourth Circuits have reached the

opposite conclusion. United States v. Mendoza-Gonzalez, 520 F.3d 912, 915 (8th

Cir. 2008), petition for cert. filed (July 15, 2008) (No. 08-5316); United States v.

Hurtado, 508 F.3d 603, 609, 610 & n.8 (11th Cir. 2007), cert. denied, 128 S. Ct.

2903 (2008); United States v. Montejo, 442 F.3d 213, 216-17 (4th Cir. 2006). The

Supreme Court has granted certiorari on this issue in Flores-Figueroa v. United

States, 129 S. Ct. 457 (2008). “An error is considered plain, or obvious, only if

the error is clear under existing law.” United States v. Salinas, 480 F.3d 750,

756 (5th Cir. 2007). Because the law is not currently settled, any error by the

district court was not clear or obvious. See id. at 759.

AFFIRMED.