Flores-Figueroa v. United States

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Authorship: Daniel Matro. Please note that Howe & Russell represents petitioner.

Contents

[edit] Briefs and Documents

Docket: 08-108

Issue: Whether an individual who used a false means of identification without knowing it belonged to another person can be convicted of “aggravated identity theft” under 18 U.S.C. 1028A(a)(1). (Disclosure: Howe & Russell represents the petitioner.)

Merit Briefs:

Amicus Briefs:

Oral Argument: Transcript

Decision: Reversed and Remanded in an opinion by Justice Breyer

[edit] Pre-Argument Articles

[edit] Argument Preview

The federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” In Flores-Figueroa v. United States, No. 08-108, the Court will consider whether, to secure a conviction under this statute, the Government must show that the defendant knew that the means of identification he used belonged to another person.

[edit] Background

In 2000, petitioner Ignacio Flores-Figueroa, a Mexican citizen, used a fake social security number and resident alien card to obtain work at a steel company in East Moline, Illinois. Though the documents bore an assumed name, neither the Social Security number nor the alien registration number on them belonged to a real person. Six years later, Flores-Figueroa acquired counterfeit social security and permanent resident cards in his own name. He presented the new documents to his employer, not knowing whether the numbers on the cards belonged to another person or, like the numbers on his original documents, instead did not belong to anyone. Suspicious, the company contacted federal authorities, who determined that the numbers on the documents had been issued to other actual persons.

After being indicted by a federal grand jury in early 2006, Flores-Figueroa pled guilty to two counts of misuse of immigration documents and one count of illegal entry into the United States. He pled not guilty, however, to two additional charges of aggravated identity theft under 18 U.S.C. § 1028A. At the close of evidence, Flores-Figueroa moved for a judgment of acquittal on the aggravated identity theft charges, arguing that the Government had not established that he knew that the social security and permanent resident numbers he used belonged to other people. The district court denied the motion, agreeing with the Government that such proof was not required under the statute. The district court sentenced Flores-Figueroa to a total of 75 months in prison: 51 months for the predicate offenses and an additional mandatory two-year sentence for aggravated identity theft.

On appeal, the Eighth Circuit affirmed, relying on its recent decision in United States v. Mendoza-Gonzalez, which had rejected the same challenge to the Government’s interpretation of § 1028A(a)(1).

[edit] Petition for Certiorari

Flores-Figueroa filed a petition for certiorari, which was granted on October 20, 2008.

Flores-Figueroa’s petition advanced several arguments. First, he argued that the Court’s intervention was necessary to resolve a growing circuit split on the question presented. Three courts of appeals – the First, Ninth, and D.C. Circuits – had previously held that the knowledge requirement of § 1028A(a)(1) extended to the “of another person” element of the offense, requiring the Government to prove that the defendant knew he was using a means of identification that belonged to another person. By contrast, the Fourth, Eighth, and Eleventh, Circuits had reached the opposite conclusion.

Flores-Figueroa further argued that this circuit conflict was considered, mature, and ripe for resolution. Each of the circuits had carefully considered the question presented and wrestled with the same basic arguments. The courts had acknowledged each other’s holdings and reasoning, but had been unable to agree on the meaning of the statute. Given the thoroughness of the circuit opinions on the issue, Flores-Figueroa suggested, further percolation would serve no purpose.

Flores-Figueroa also emphasized the importance of the question and the frequency with which it arises, noting that in 2005, the FBI had 1,600 open investigations into identity theft. Moreover, the division of authority on the question is unfair and untenable, because individuals committing precisely the same acts are currently subject to significantly different sentences depending on accidents of geography.

Flores-Figueroa next argued that his case presents an ideal vehicle for resolution of the circuit split: the statutory question was the principal basis for dispute in the district court and the sole question presented on appeal; the facts are undisputed; and the question is outcome determinative.

Lastly, Flores-Figueroa devoted a significant portion of his petition to attacking the Eighth Circuit’s decision on the merits, which he characterized as conflicting with the best reading of the statute and violating the rule of lenity.

In its brief in opposition, the United States agreed that the case “presents an important and recurring issue that warrants this Court’s review” in light of the “clear and entrenched conflict among the court of appeals” on the question presented. But the government urged the Court to grant the earlier-filed petition for certiorari in Mendoza-Gonzalez, and to hold the petition in this case pending its decision in Mendoza-Gonzalez.

In his reply brief, Flores-Figueroa countered that the Government had offered no “jurisprudential or discretionary reason for preferring plenary review” in Mendoza-Gonzalez over his case. In his view, when “choosing between two cases presenting the same certworthy question,” the Court should consider not simply which petition was filed first but which case is more likely to provide “the best and most comprehensive presentation of the legal arguments.” That consideration, Flores-Figueroa suggested, favored review in his case, because his petition raised a number of significant arguments not made by the petitioner in Mendoza-Gonzalez, and to which the Government has provided no response.

[edit] Merits Briefing

In his brief on the merits, Flores-Figueroa argues that the most natural reading of § 1028A(a)(1) is that the provision’s knowledge requirement extends to “of another person.” He begins with several sample sentences to demonstrate that, in common usage, a state-of-mind adverb like “knowingly” is generally understood to apply not only to adjacent verbs, as the Eighth Circuit held, but also to any direct object that may follow. Once the knowledge requirement is “emancipated” from modifying only the verbs, Flores-Figueroa contends, there is no grammatical justification for concluding that it suddenly stops after “means of identification” and before “of another person.”

Flores-Figueroa also points to the language of a nearby provision, § 1028A(a)(2), which imposes a five-year sentence on anyone who, during and in relation to certain terrorism-related offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person or a false identification document.” In his view, the Government’s concession in another case that § 1028A(a)(2)’s knowledge requirement extends to the phrase “false identification document” implies one of two untenable propositions: either the knowledge requirement in § 1028A(a)(2) “hopscotches” the provision’s various elements, or the knowledge requirement applies to “of another person” in the terrorism offense provision but not the nearly identically worded provision that immediately precedes it.

Flores-Figueroa argues that his textual reading is consistent with both the traditional understanding of theft and longstanding presumptions about the scope of mens rea requirements in criminal statutes. Drawing on United States v. Morissette and various common law sources, Flores-Figueroa insists that an essential element of “theft” is the knowledge that the stolen property belongs to someone else. The legislative history of § 1028A, he suggests, shows that Congress had this defining aspect of theft in mind. In addition, there is no evidence Congress intended to depart from the background presumption, expressed in several Supreme Court cases and codified in the Model Penal Code, that – absent clear evidence of contrary intent – criminal statutes will be read to require that the defendant know the facts that make his conduct illegal.

Flores-Figueroa further argues that his reading is consistent with the purposes behind the statute in that it reserves the severe punishment of § 1028A(a)(1) for the most serious offenses and distinguishes between identity fraud and identity theft. He also contends that the goals of protecting victims or facilitating prosecutions, which figured heavily in the Eighth Circuit’s analysis, cannot overcome the problems with that court’s textual interpretation.

Finally, Flores-Figueroa argues that, to the extent there is any textual ambiguity, nothing in the structure, legislative history, or purposes of the statute resolves it, and therefore the rule of lenity applies. In his view, application of the rule is especially appropriate in the context of mandatory sentencing provisions.

In its brief on the merits, the United States argues that the most natural grammatical reading of the provision is that “knowingly” applies only to the verbs that immediately follow it. Flores-Figueroa’s examples to the contrary are unavailing, the government suggests, because “[c]ommon usage (based on a handful of carefully selected examples) cannot generate rules of construction that supplant grammar.” Moreover, the position of the phrase “without lawful authority,” directly following the verbs and set off by commas, constitutes a structural cue which confirms that the knowledge requirement extends no further than the verbs.

Adopting Flores-Figueroa’s interpretation of § 1028A(a)(1), the government next argues, would “create a serious surplusage problem with respect to the almost identically worded Section 1028A(a)(2).” Specifically, reading “knowingly” to reach “of another person” would render that phrase superfluous in § 1028A(a)(2), because a “person who knowingly transfers a means of identification without lawful authority must necessarily know that the identification either belongs to another person or that it is false; there are no other choices.”

In addition to creating a surplusage problem, the government argues, Flores-Figueroa’s interpretation would frustrate the statute’s primary purpose of enhancing protections for victims. In the government’s view, § 1028A(a)(1) is a “victim-focused statute”: what distinguishes aggravated identity theft from mere identity fraud is the presence of a real victim, not the perpetrator’s state of mind. Congress recognized that the use of a real person’s identifying information to facilitate a predicate felony poses an increased risk of harm to the victim, and chose to place on the wrongdoer the burden of inquiry and the risk that the means of identification might belong to a real person.

The government also insists that the use of the word “theft” in the statute’s title and legislative history does not change the analysis. The term “theft,” it argues, did not have any clearly established meaning at common law. Moreover, the term is nowhere used in the statute’s operative text, which creates an offense that is different from common-law larceny in many ways.

The government likewise rejects Flores-Figueroa’s contention that a background presumption in favor of scienter applies in this case. That presumption requires courts to read into a statute only that mens rea which is necessary to avoid criminalizing otherwise innocent conduct. According to the government, no such concern would justify extending “knowingly” to “of another person” in § 1028A(a)(1). The provision applies only to those who use a means of identification to facilitate an underlying predicate felony, and therefore “does not demarcate a line between legally innocent and criminally culpable conduct.” The government also disputes that there is a longstanding presumption that mens rea requirements apply to all facts that make the defendant’s conduct unlawful. Such a presumption, it argues, would conflict with Supreme Court precedent and “would also risk disruption of a great deal of well-settled authority with respect to the construction of other federal criminal statutes.”

Finally, the government argues that the rule of lenity is inapplicable because there is no grievous ambiguity that would justify resort to it.

In his reply brief, Flores-Figueroa provides a slew of examples to demonstrate that a state-of-mind adverb is commonly understood to reach not only verbs, as the government suggests, but also the direct object. He notes that neither the government nor any of its amici has offered a single counter-example that supports its position. In addition, he argues that the commas setting off the phrase “without lawful authority” do not constitute a structural barrier to extending the knowledge requirement. Rather, the first comma signals an interruption in the flow of the sentence, which resumes immediately following the second comma ending the interruption.

Flores-Figueroa rejects the government’s fallback positions as well. The first– that “knowingly” extends to the phrase “without lawful” authority – has no more basis in the text than the government’s preferred interpretation. And the second – that “knowingly” extends to the words “means of identification” but stops before “of another person” – is the least textually tenable construction of all. Neither interpretation finds any support in common English usage.

Flores-Figueroa also argues that it is the government’s interpretation, not his, which creates a surplusage problem. The government’s surplusage argument, he contends, rests on the mistaken assumption that a means of identification which is used without lawful authority must either belong to another person or be a false identification document. In fact, he points out, the term “means of identification” is significantly broader than “identification document,” and therefore requiring the government to prove the defendant’s knowledge with respect to each element of a § 1028A(a)(2) offense creates no surplusage problem. By contrast, he argues, the government’s interpretation creates a genuine surplusage problem because, by limiting “knowingly” to the provision’s verbs, it limits the function of the knowledge requirement to simply weeding out any transfer, possession, or use that is accidental. But that function is already served by the statute’s requirement that the defendant’s use facilitate, or have the potential to facilitate, a predicate offense.

Flores-Figueroa also defends his earlier arguments that the traditional understanding of theft, the purposes of the statute, and longstanding presumptions about the scope of mens rea requirements all support his reading of the statute. First, he attempts to rebut the government’s suggestion that the term “theft” had no set common law meaning. Second, he disputes the government’s contention that the statute’s victim-focused purpose justifies reading its mens rea requirement narrowly. He argues that all criminal statutes are victim-focused, and that nevertheless, our legal tradition calibrates punishment to culpability, absent clear evidence of contrary legislative intent. Whereas the government’s reading risks arbitrary results that Congress could not have intended, his reading ensures that the identity thieves Congress had in mind in passing the statute are punished. Third, Flores-Figueroa rejects the government’s claim that courts must give a mens rea element only the breadth necessary to avoid criminalizing innocent conduct. That rule, he contends, applies only when the statute contains no mens rea requirement at all. When a mens rea element is present, he argues, courts traditionally construe it broadly to avoid giving a statute unintended breadth. This is true even when a statute applies only to individuals who are not wholly innocent and the question is who among those offenders deserves additional punishment.

Finally, Flores-Figueroa again turns to the rule of lenity. The text, structure, and history of the statute do not establish that the government’s interpretation is unambiguously correct, he argues, and therefore the ambiguity should be resolved in favor of the defendant.

[edit] Oral Argument Recap

At oral argument on Wednesday, February 25, the Court sharply questioned the government’s position that it need not prove petitioner Flores-Figueroa knew the means of identification he used belonged to another person to convict him of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). By the end of argument, it appeared that a number of Justices thought the text favored Flores-Figueroa’s interpretation, or was, at best, ambiguous. The Justices most likely to be swayed by legislative history and purpose did not seem persuaded that Congress’s desire to protect victims compelled construing the text in the government’s favor.

Kevin Russell, representing petitioner Flores-Figueroa, began with an argument that figured prominently in his opening and reply briefs. In common usage, to say that “John knowingly used a pair of scissors of his mother,” Russell explained, is to say that John knew not only that he was using something, or that he was using a pair of scissors, but that the scissors he was using belonged to his mother. In his view, the statute should be interpreted no differently. The Court, however, did not seem especially interested in this line of argument. Justice Alito questioned whether Russell’s conclusion in fact depended on the context in which such a statement is made. Chief Justice Roberts chimed in with an example: To say that someone “stole a car that belonged to Mr. Jones” would not necessarily imply that the thief knew the car belonged to Mr. Jones. As Russell began explaining why that example was grammatically different, Justice Scalia, in an early sign of his leanings in the case, helpfully added that the Chief Justice’s example omitted the word “knowingly.”

Justice Breyer sought to steer the discussion beyond the common usage argument, suggesting that it did not matter whether Russell’s interpretation is consistent with common usage: “So what if it isn’t?” Doesn’t the Court normally apply a knowledge requirement to each element of the crime? Russell agreed, and prompted by a question from Justice Alito, discussion soon turned to what actual mental state would satisfy the statute’s mens rea requirement and what type of evidence would be sufficient to show it. Justices Alito and Kennedy raised several hypotheticals, one of which seemed to cause momentary confusion. If the defendant had five identity cards each belonging to a different real person, Justice Kennedy asked, would that be sufficient evidence to allow the jury to infer knowledge? Russell’s answer that it would not drew this response from Justice Scalia: “You are making it very hard for me to vote with you, I must say. I thought you had a pretty good – a pretty good case. But if you are going to say somebody who has five identity cards, faces of individuals, presumably they are real individuals . . . .” Russell responded that he may have misunderstood the hypothetical, and that the possession of five identity cards with five different pictures, names, and numbers would be sufficient to allow a jury to infer that the defendant knew they belonged to someone else.

Justice Alito asked whether the use of a common name on a fake identification would be sufficient to establish knowledge. Russell responded that such a scenario presents difficult line-drawing issues, but the prosecution would have to show that the defendant had to know that a specific person of that name existed, even if he did not know who that person was. If it’s a sufficiently common name, Russell conceded to Justice Kennedy, a jury could infer knowledge based on the use of the name alone. Russell added, however, that in many of the cases Congress was most concerned about, this issue will not arise because the method by which the defendant obtains the identification will itself provide powerful evidence of knowledge.

Moving on, Russell challenged the government’s argument that the statute must be construed in a way that is most protective of victims. Russell emphasized that Congress could have written a statute that would hold defendants like petitioner strictly liable, as it has occasionally done in other contexts, but there are strong reasons to think it did not do so here. First, the language of § 1028A(a)(1) is different from those statutes. Second, he questioned whether it was really Congress’s intent to subject two people with identical culpability to such substantially different punishments, and to impose identical punishments on two people with such substantially different culpability. And, in response to a question from Justice Ginsburg, he reminded the Court that identity fraud statutes already seriously punish, and therefore deter, individuals whose use of a fake identification risks harming an unknown victim’s credit.

Arguing for respondent United States, Toby Heytens faced a skeptical audience from the outset. Justice Ginsburg asked whether, in his view, when two people get false social security cards from the same source and one of the two happens to receive a number that belongs to another person, that individual deserves the additional punishment imposed by § 1028A(a)(1). Heytens said yes, explaining that “there are no victimless violations of 1028A(a)(1).” Justice Stevens followed up, asking whether “Congress intended there to be a more severe punishment for somebody who really steals another person’s . . . identity so he can cash in on his credit and so forth?”

Heytens urged the Justices not to view the case from the “defendant’s perspective” but from the victim’s perspective. While the defendant may just have happened to take a real person’s number, to the victim, it makes no difference whether her identity was stolen by someone who knew she existed or did not. In response to Justice Breyer’s suggestion that those kinds of considerations could be taken into account at sentencing, Heytens argued that the statute was enacted at least in part out of concern that judicially discretionary sentences were failing to adequately take into account the harm suffered by real victims.

Justice Breyer in turn responded by asking Heytens why, then, Congress did not simply write “means of identification.” “[I]t’s odd,” he suggested, “to write a statute that has elements and you put the word ‘knowingly,’ and the knowingly is supposed to modify some elements but not others.” Could Heytens identify an example of any statute that operated in this manner? Heytens pointed to the Court’s opinion in Morissette v. United States and the D.C. Circuit’s opinion in United States v. Chin. Justice Stevens objected to the Morissette analogy, pointing out that in Morissette the distinction was between two equally culpable acts – it made no difference whether the owner of the converted property was the United States or a private person, as long as the property did not belong to the defendant. In this case, by contrast, two individuals with vastly different culpability are treated alike. In the federal identity theft statute, Justice Stevens asked, “what are the words ‘of another person’ doing there if really they are not supposed to make any difference in terms of mental state?” Simply to make clear that the statute applies only when there is a real victim, Heytens replied.

To this, Justice Breyer responded that Heytens’s argument had to hinge entirely on congressional intent. Would Heytens agree that “if you simply look at the text of this statute without considering congressional policy, you don’t win?” Heytens’ reply – “[w]e don’t concede that the text of the statute alone unambiguously resolves the issue” – was abruptly interrupted by Justice Souter, who asked “does it even come close to supporting it?” It can’t possibly be the case, Justice Souter argued, that “knowingly” refers only to the verbs. And it would be entirely “arbitrary” to draw the line after “without lawful authority.” Because the operative term in the statute is “a means of identification of another person,” the word “‘knowingly’ has got to refer to . . . everything that follows, both lawful authority and another person.” So “you have got to win on the grounds that Congress wouldn’t have meant what seems so natural, because Congress wanted to help victims not defendants.”

Heytens conceded that the text does not so clearly support his position as to make further inquiry unnecessary. This prompted Justice Scalia to suggest that the rule of lenity must apply. Heytens responded that some ambiguity doesn’t automatically trigger the rule, and that the Court must first consider purpose, legislative history, and other means of statutory construction. Not satisfied, Justice Breyer replied that the problem Heytens faces is that nothing he has said convincingly demonstrates that Congress meant to target everyone who steals an actual person’s identity rather than only those who knowingly do. He also suggested that the case for applying the rule of lenity is particularly strong in the context of mandatory minimum sentences. Justice Ginsburg stepped in, asking whether the 3-3 split among the circuits was not evidence that the statute is indeed grievously ambiguous. Again returning to the fact that the government’s interpretation imposes a two-year punishment on defendants who engage in the exact same conduct with the exact same state-of-mind as defendants who are not eligible for the penalty, she asked, “Why in the world would Congress want to draw such a line?”

Heytens responded by pointing to the felony-murder statute, but the Chief Justice questioned the comparison. Heytens turned to legislative history, suggesting that when Congress discussed the harm caused by identity theft, it made no distinction between perpetrators who knew they were harming a specific victim and those who did not. This too drew a skeptical response from the Chief Justice, who pointed out that even the perpetrator who does not know there is a real victim faces significant prison time for identity fraud. Heytens responded that Congress was concerned about such individuals not actually receiving that punishment: “The fact that there is a real victim gets you two years.” Justice Scalia responded that it is equally plausible to conclude that “you get two years for knowing that there is a discrete victim . . . it makes sense either way.” This forced Heytens again to return to his point that, in light of Congress’s concern about the harm to real victims, the additional punishment should not turn on the defendant’s awareness of a specific victim.

Finally, Heytens urged the Court not to ask the question whether petitioner is an identity thief, but to ask whether the two individuals whose identities he used were the victims of identity theft. The Chief Justice retorted that the problem is “the statute says identity theft; it doesn’t say anything about victims.”

In a brief rebuttal, Russell sought to explain the Morissette and Chin examples. Morissette can be distinguished because the element requiring that the property belong to the United States is a jurisdictional element, and mens rea requirements don’t traditionally extend to jurisdictional elements. And the Chin example falls within a category of special cases in which courts have treated the victimization of children differently, given the difficulty of ascertaining the defendant’s knowledge of the victim’s age.

Russell also again addressed the government’s claims about the victim-focused nature of the statute. It is certainly true that criminal law takes into account both defendant culpability and victim harm, he observed, “but the ordinary resolution is to reserve punishment in the criminal system for those who intend the harms that they inflict.” When Congress departs from this assumption, it writes statutes that make that clear, and it did not do so here. Finally, Russell reminded the Court of Heytens’s concession that the text is at least ambiguous and that there are policy arguments on both sides. “[R]egardless of your view of what the trigger of the rule of lenity is,” he concluded, “this is a classic case for it.”

[edit] Opinion Analysis

On Monday, the Supreme Court issued its opinion in Flores-Figueroa v. United States. The case called upon the Court to resolve a circuit split over the scope of the mens rea requirement in the federal aggravated identity theft statute, 18 U.S.C. § 1028A(a)(1), which imposes a mandatory two-year sentence on anyone who, during and in relation to certain predicate offenses, “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The Court unanimously agreed with Flores-Figueroa that, to obtain a conviction under § 1028A(a)(1), the Government must show that the defendant knew that the “means of identification” he unlawfully transferred, possessed, or used, belonged to a real person.

Writing for the Court, Justice Breyer first explained that there were “strong textual reasons” for adopting Flores-Figueroa’s interpretation. Reading “knowingly” to apply only to the provision’s verbs, or to everything but the words “of another person,” would conflict with ordinary English usage. Justice Breyer illustrated this point with a series of sample sentences. For example, to say “someone knowingly ate a sandwich with cheese” is to suggest that the person knew he ate a sandwich containing cheese. The same general rule applies to interpretation of criminal statutes, Justice Breyer observed, as “[c]ourts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.”

Justice Breyer then considered each of the Government’s arguments for a different reading. He dismissed the Government’s primary textual argument – that a narrow interpretation of the knowledge requirement was necessary to avoid surplusage in a nearly identically worded neighboring provision – as logically flawed. Justice Breyer next addressed the Government’s contention that its reading would advance the statute’s purpose to provide enhanced protection against identity theft. He conceded that, if defendants are held liable for aggravated identity theft even if they did not know the IDs they used belonged to another person, potential offenders might take greater care to avoid using the IDs of real people. But Justice Breyer found the legislative history on this point too inconclusive to make a difference. Finally, Justice Breyer was not persuaded that any additional practical difficulties the Government might face prosecuting identity theft justified a reading that dispensed with the knowledge requirement. In most cases of classic identity theft, he noted, proving intent is not difficult. And, in any event, such enforceability concerns fail to overcome the “clarity of the text.”

Justice Scalia, joined by Justice Thomas, wrote separately to say that he would decide the case on textual grounds alone. He agreed with the Court’s conclusion that ordinary English usage supports Flores-Figueroa’s interpretation of this statute, but took issue with Justice Breyer’s suggestion that courts should ordinarily apply the mens rea requirement in a criminal statute to every element of the crime. In some statutes, structural cues may indicate that Congress intended otherwise. Additionally, Justice Scalia refused to join the Court’s discussion of legislative history. He found it particularly troubling to consult such sources “with an eye to making criminal what the text would otherwise permit.”

Justice Alito also wrote separately to express concern that the Court’s opinion may be read “as adopting an overly rigid rule of statutory construction.” He found it relatively easy to come up with sentences that do not conform to the Court’s rule. In Justice Alito’s view, it is fair to begin with a general presumption that a specified mens rea applies to all elements of an offense, but that presumption may be rebutted by the context. In this case, the Government had not only failed to rebut the presumption, but also could not explain why a defendant’s liability under § 1028A(a)(1) should depend entirely on the chance that the identification number he randomly chose happened to be assigned to a real person.

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