The opinion of the court was delivered by: Yohn, J.
Pursuant to 28 U.S.C. § 2255, Brian Lee Morgan moves pro se to vacate the twenty-four month portion of the seventy-five month sentence he received, after a guilty plea, for crimes related to his involvement in an identity fraud scheme. The court imposed this twenty-four month portion of his sentence under 18 U.S.C. § 1028A(a)(1) for aggravated identity theft. Section 1028A(a)(1) makes it unlawful, during the commission of certain felonies, to "knowingly transfer, possess, or use, without lawful authority, a means of identification of another person . . . ." Morgan now claims that his conviction and sentence violated due process because the government did not establish and he did not admit that he knew at the time of the offense that the means of identification he misused belonged to a real person, as required by the Supreme Court's ruling in United States v. Flores-Figueroa, 129 S.Ct. 1886 (2009), decided after his guilty plea and sentence. Morgan did admit, as part of his guilty plea, that the means of identification he misused was authentic. He claims, however, that he would not have pleaded guilty to the charge if he had correctly understood this element. Based on the record in this case, I find that the government did not establish that Morgan knew that the means of identification belonged to a real person at the time he misused it.
The parties have not, however, sufficiently briefed the issue of what the effect of such a finding would be, including but not limited to: (1) whether a trial should be held on the aggravated identity theft charge; (2) whether Morgan should be resentenced on the other charges to which he pleaded guilty; or (3) whether Morgan should be allowed to withdraw his guilty plea to all of the charges. Accordingly, I will order the parties to submit supplemental briefing within 20 days.
I. Factual and Procedural Background
On April 4, 2006, the government filed an eight-count indictment against Morgan for his involvement in an identity fraud scheme. The government revised the charges on July 12, 2006, by filing a ten count superseding information. The superseding information added, among other things, a count for aggravated identity theft under § 1028A(a)(1), Count Nine. (Superseding Information 10.) Count Nine charged that on or about February 7, 2006, Morgan "knowingly and without lawful authority possessed and used a means of identification of another person, that is, a Pennsylvania driver's license in the name of A.S., during and in relation to credit card fraud." (Id.)
On July 13, 2006, the government submitted to the court a written Guilty Plea Agreement in which Morgan pleaded guilty to five counts of the superseding information, including Count Nine. At that time, the government also submitted a Change of Plea Memorandum, in which it acknowledged that at trial it would have had to prove the following elements to establish a violation of § 1028A(a)(1):
To establish a violation of § 1028A(a)(1) (Count Nine), the government must prove the following essential elements beyond a reasonable doubt:
1. The defendant possessed a means of identification of another person;
2. The defendant did so knowingly and without lawful authority; and
3. The defendant's possession of the means of identification was during and in relation to a felony conviction.
(Change of Plea Mem. 3 (emphasis added).)
The government stated in the Memorandum that at trial it would have introduced evidence of Morgan's participation in an identity fraud scheme, including the following evidence:
1. A confidential witness would have testified that in approximately 2004 he "brought stolen information" to Morgan from which "Morgan made fraudulent driver's licenses, medical insurance cards and credit cards" which the witness and his associate told Morgan they would use, and which they did use, to obtain loans for the purchase of three cars (id. at 5);
2. A search of a building at 1913 S. Alden Street that Morgan visited on numerous occasions uncovered sophisticated equipment needed for the manufacture of false identification documents, as well as financial and identity information belonging to other people, such as "a checkbook in another person's name," "an authentic credit card in another person's name," and "an authentic New York driver's license in another person's name" (id. at 7-8);
3. A search of an unlocked briefcase found at 1913 S. Alden Street uncovered, among other things, "copies of various Pennsylvania driver's licenses" and "copies of personal checks in other people's names" (id. at 8);
4. A search of Morgan's residence at 4517 St. Malachy's Way uncovered, among other things, "checks and check books in other people's names" and "[a] credit application in another person's name" (id. at 10);
5. A search of Morgan's Plymouth uncovered, among other things, "a driver's registration in another person's name" (id. at 11);
6. A search of Morgan's Cadillac uncovered, among other things, "[a] Social Security card of another person," "authentic driver's licenses in various names," "credit reports and passport photos of various people," and "a Fed-Express envelope containing a cash register receipt roll with approximately 250 credit card account numbers" (id. at 10-11).
In all, the government determined that in these searches it had seized over 6,700 credit card account numbers. (Id. at 9.)
Specific to Count Nine, the charge of aggravated identity theft under § 1028A(a)(1), the government stated that its agents found in the trunk of Morgan's Cadillac "an authentic Pennsylvania driver's license in the name of 'A.S.'" which "matched the name on a counterfeit American Express credit card found and seized at 1913 S. Alden Street" and which matched the name on "three counterfeit credit cards" created using "the credit card making machine" found at 1913 S. Alden Street. (Id. at 11.) The government further stated that it would have presented as a witness at trial a representative of the Pennsylvania Bureau of Motor Vehicles who would have testified that the Bureau "had issued the driver's license to 'A.S.'" (Id.)
On July 19, 2006, Morgan pleaded guilty in open court to: (1) producing and trafficking in counterfeit access devices (Count One); (2) producing false identification documents (Count Two); (3) possessing equipment used to make false identification documents (Count Five); (4) aggravated identity theft (Count Nine); and (5) possessing a firearm by a convicted felon in connection with another felony offense (Count Ten). (Guilty-Plea Hr'g Tr. 15:8-16:18.) As part of the guilty-plea hearing, the prosecutor summarized the essential elements of each charge, including the elements of aggravated identity theft under § 1028A(a)(1):
To prove that violation, the Government would have to prove the Defendant; one, possessed a means of identification of another person; two, did so knowingly and without lawful authority; and, three, the Defendant's possession of the means of identification was during and in ...