PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-4125 UNITED STATES OF AMERICA, Plaintiff - Appellant, v. LESTER DEAN GEORGE, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, Chief District Judge. (5:18-cr-00133-BO-1) Argued: October 31, 2019 Decided: January 9, 2020 Before KEENAN, FLOYD, and RICHARDSON, Circuit Judges. Vacated and remanded by published opinion. Judge Floyd wrote the opinion in which Judge Keenan joined in full and in which Judge Richardson joined in all except Part II.D. ARGUED: Phillip Anthony Rubin, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Paul K. Sun, Jr., ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Gabriel J. Diaz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellant. Kelly Margolis Dagger, ELLIS & WINTERS LLP, Raleigh, North Carolina, for Appellee. FLOYD, Circuit Judge: The case before us presents a question of first impression for this Court: whether the term, “another person,” in the federal aggravated identity theft statute includes deceased, in addition to living, victims of identity theft. 18 U.S.C. § 1028A(a)(1). The district court below held that it does not. Therefore, the court allowed the defendant, Lester Dean George, to withdraw his guilty plea to the count of aggravated identity theft and dismissed that count. The Government appealed. For the following reasons, we vacate the district court’s judgment and remand for resentencing. I. George, a citizen of Trinidad and Tobago, entered the United States on a temporary visa that permitted him to stay until 1987. 1 George overstayed his visa and unlawfully remained in the United States. On May 17, 2013, George used the means of identification of a deceased victim (“Victim”) in connection with purchasing a residence in North Carolina. In particular, he used the Victim’s name, date of birth, and social security number in an attempt to secure a home loan insured by the United States Department of Housing and Urban Development. On April 19, 2018, George was charged in a two-count indictment with: false representation of a social security number, in violation of 42 U.S.C. § 408(a)(7)(B), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). 1 These facts are taken from George’s change-of-plea hearing in which he pleaded guilty to all counts. 2 On September 11, 2018, George pleaded guilty to both counts, without a plea agreement. On December 17, 2018, George moved to withdraw his guilty plea as to the aggravated identity theft count on the basis that the district court had previously ruled that a defendant could not be convicted of aggravated identity theft if the victim whose identity was stolen was already deceased. On January 18, 2019, at George’s sentencing hearing, the district court granted his motion to withdraw his guilty plea as to the aggravated identity theft count and dismissed the count. ...
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