Opinion
Case Number: 09-23049-CIV-MORENO 07-20580-CR-MORENO.
November 18, 2009
ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
THIS CAUSE came before the Court upon Movant's Motion to Vacate Sentence (D.E. No. 1), filed on October 9, 2009.
THE COURT has considered the motion, the response, and the pertinent portions of the record, and being otherwise fully advised in the premises, it is
ADJUDGED that the motion is GRANTED as both the United States and the Movant agree that in light of United States v. Flores-Figueroa, 129 S. Ct. 1886 (2009) the Government had insufficient evidence to establish beyond a reasonable doubt that Movant knew that the fraudulent means of identification in his possession belonged to another individual. Accordingly, the Court vacates the conviction under 18 U.S.C. § 1028A as the parties also agree that Flores-Figueroa is retroactively applicable. See Dodd v. United States, 365 F.3d 1273, 1280-81 (11th Cir. 2004) (holding that any court can make a new rule retroactive when a section 2255 motion is filed within one year of the Supreme Court's rule). It is also ADJUDGED that all pending motions are DENIED as moot and this case is CLOSED.
DONE AND ORDERED in Chambers at Miami, Florida.