Graciela Zuniga-Arteaga appeals her conviction for aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1). On appeal, Ms. Zuniga-Arteaga argues that § 1028A(a)(1) cannot be applied to her conduct because that provision does not cover the theft of a person’s identity when that person is no longer living . . . [W]e affirm.

Ms. Zuniga-Arteaga, a Mexican national, sought admission to the United States in March 1995. She first claimed to have been born in Texas, but offered no documents supporting her claim . . . At some point, Ms. Zuniga-Arteaga returned to the United States, where she was later arrested for an alleged drug offense. When arrested, she said that her name was “MSG,” and gave a false identification document in the form of a Texas Department of Public Safety Identity Card in the name “MSG.” At her initial appearance, however, Ms. Zuniga-Arteaga admitted that she was the person named in the indictment, “Zuniga-Arteaga.” In August 2002, Ms. Zuniga-Arteaga was convicted in federal court for conspiracy to possess with intent to distribute more than 1,000 kilograms of marijuana.

Nearly eight years later, on February 18, 2010, Immigration and Customs Enforcement (ICE) encountered Ms. ZunigaArteaga at the federal prison in Tallahassee, Florida, where she was serving her sentence for the 2002 conviction. During that meeting, Ms. Zuniga-Arteaga claimed to be “MSG,” a United States citizen born in Mercedes, Texas. Ms. ZunigaArteaga also gave ICE a date of birth that has since been confirmed to belong to MSG, who had lived and died prior to Ms. Zuniga-Arteaga’s use of the name.

. . . Meanwhile, law enforcement investigated further and found that Ms. Zuniga-Arteaga was not MSG. They located and interviewed MSG’s brother, who told them that MSG was a U.S. citizen who died as a child in 1960. Law enforcement also acquired a certified copy of MSG’s death certificate confirming the brother’s statements. The information on the death certificate matched that repeatedly given by Ms. Zuniga-Arteaga, and shown on the birth certificate produced by her attorney.

. . . Section 1028A(a)(1) states: Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.

Ms. Zuniga-Arteaga argues that the term “person” in the statute refers only to the living, and does not cover theft of the identity of a person who has died. Thus, she argues that her use of MSG’s identity falls outside the statute’s scope. Though this issue is one of first impression for this Court, we now follow four circuits in holding that § 1028A(a)(1) punishes theft of the identity of any actual person, regardless of whether that person is still alive.

Questions:

1. Identify the elements of aggravated identity theft under the federal statute.
2. What is the defendant’s primary argument?