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|related_offenses = [[Wire Fraud|Wire Fraud]], [[Bank Fraud|Bank Fraud]], [[False Statements|False Statements]]
|related_offenses = [[Wire Fraud|Wire Fraud]], [[Bank Fraud|Bank Fraud]], [[False Statements|False Statements]]
}}
}}
'''Aggravated identity theft''' is a federal crime under 18 U.S.C. § 1028A that imposes a mandatory minimum consecutive sentence for using another person's means of identification during and in relation to certain enumerated felony offenses. Unlike most federal crimes where judges have sentencing discretion, aggravated identity theft requires a mandatory 2-year sentence that must run consecutive to any other term of imprisonment.<ref name="uscode-1028a">18 U.S.C. § 1028A.</ref>


The statute was enacted as part of the Identity Theft Penalty Enhancement Act of 2004, reflecting Congress's concern about the growing problem of identity theft and its role in facilitating other crimes. The mandatory consecutive sentence substantially increases punishment for defendants who steal identities to commit fraud, immigration violations, or other federal offenses.<ref name="id-theft-act">Identity Theft Penalty Enhancement Act of 2004, Pub. L. 108-275.</ref>
'''Aggravated identity theft''' is a federal crime under 18 U.S.C. § 1028A. It carries a mandatory minimum consecutive sentence for using someone else's identification during and in relation to certain enumerated felony offenses. Here's the key difference from most federal crimes: judges have virtually no discretion. They must impose a 2-year sentence that runs consecutive to any other sentence the defendant receives.<ref name="uscode-1028a">18 U.S.C. § 1028A.</ref>
 
Congress enacted this statute as part of the Identity Theft Penalty Enhancement Act of 2004, responding to a serious and growing problem. Identity theft wasn't just a standalone crime anymore; it was being used to enable fraud, immigration violations, and countless other federal offenses. The mandatory consecutive requirement substantially increases punishment for defendants who steal identities to commit these crimes.<ref name="id-theft-act">Identity Theft Penalty Enhancement Act of 2004, Pub. L. 108-275.</ref>


== Elements of the Offense ==
== Elements of the Offense ==


To convict under 18 U.S.C. § 1028A, the government must prove:
To secure a conviction under 18 U.S.C. § 1028A, prosecutors must prove each of these elements:


# '''Means of Identification''': The defendant knowingly transferred, possessed, or used a means of identification of another person
# '''Means of Identification''': The defendant knowingly transferred, possessed, or used a means of identification of another person
# '''Without Lawful Authority''': The defendant acted without lawful authority
# '''Without Lawful Authority''': The defendant had no lawful authority to do so
# '''During and In Relation To''': The use occurred during and in relation to an enumerated felony offense
# '''During and In Relation To''': The use occurred during and in relation to an enumerated felony offense
# '''Knowledge''': The defendant knew that the means of identification belonged to another actual person<ref name="flores-figueroa">Flores-Figueroa v. United States, 556 U.S. 646 (2009).</ref>
# '''Knowledge''': The defendant knew the identification belonged to another actual person<ref name="flores-figueroa">Flores-Figueroa v. United States, 556 U.S. 646 (2009).</ref>


=== Means of Identification ===
=== Means of Identification ===


"Means of identification" is defined broadly in 18 U.S.C. § 1028(d)(7) to include:
The statute casts a wide net here. Under 18 U.S.C. § 1028(d)(7), "means of identification" includes:


* Name
* Name
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=== Knowledge Requirement ===
=== Knowledge Requirement ===


In ''Flores-Figueroa v. United States'' (2009), the Supreme Court held that the government must prove the defendant knew the means of identification belonged to another actual person. Using a fabricated identity that happens to match a real person's information—without knowing the identity belongs to a real person—does not satisfy the knowledge requirement.<ref name="flores-figueroa" />
This one changed things. In ''Flores-Figueroa v. United States'' (2009), the Supreme Court made clear that prosecutors must prove the defendant knew the identification belonged to an actual person. Say you're using a Social Security number you think you made up. It just happens to match someone real. That's not aggravated identity theft under this case, because you didn't know it belonged to a real person. The government has to show you knew.<ref name="flores-figueroa" />


=== Enumerated Predicate Offenses ===
=== Enumerated Predicate Offenses ===


Aggravated identity theft applies when the identity theft occurs "during and in relation to" certain enumerated felonies, including:
Aggravated identity theft only applies when the identity theft occurs "during and in relation to" specific felonies. Here's the list:


'''Fraud and Related Crimes:'''
'''Fraud and Related Crimes:'''
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|}
|}


'''Key Penalty Provisions:'''
The penalties break down like this:


* The 2-year (or 5-year) sentence must run consecutive to any sentence for the underlying predicate offense
* That 2-year (or 5-year) sentence must run consecutive to the underlying predicate offense's sentence
* The sentence cannot be served concurrently with any other sentence
* No concurrent sentences allowed
* Courts cannot impose probation; imprisonment is mandatory
* Courts can't impose probation in place of imprisonment
* Each use of a different person's identification can constitute a separate count<ref name="uscode-1028a" />
* Using a different person's identification in separate instances? Each one is a separate count<ref name="uscode-1028a" />


== Federal Sentencing Guidelines ==
== Federal Sentencing Guidelines ==


Aggravated identity theft is governed by USSG §2B1.6, which simply directs that the mandatory 2-year consecutive sentence required by statute be imposed. Unlike other offenses, there are no enhancements or adjustments—the sentence is fixed by law.
Under USSG §2B1.6, aggravated identity theft sentencing is refreshingly straightforward. The guideline simply directs judges to impose the mandatory 2-year consecutive sentence the statute requires. There are no enhancements. No adjustments. No tricks. The sentence is fixed by law.


=== Relationship to Underlying Offense ===
=== Relationship to Underlying Offense ===


The predicate offense (e.g., wire fraud, bank fraud) is sentenced separately under its own guideline. The aggravated identity theft sentence is then added consecutively. For example:
Here's how it works in practice. The predicate offense gets sentenced separately under its own guideline. Then the aggravated identity theft sentence gets stacked on top, running consecutively. Example:


* If a defendant is convicted of wire fraud with a guideline range of 24-30 months, plus aggravated identity theft
* Defendant convicted of wire fraud with a guideline range of 24-30 months
* The defendant would serve the wire fraud sentence (say, 27 months) plus 24 months consecutive for the identity theft
* Also convicted of aggravated identity theft
* Total minimum sentence: 51 months<ref name="ussg-2b1.6">United States Sentencing Commission, USSG §2B1.6 (2024).</ref>
* Judge sentences the wire fraud to 27 months
* Judge adds 24 months consecutive for the identity theft
* Total minimum: 51 months<ref name="ussg-2b1.6">United States Sentencing Commission, USSG §2B1.6 (2024).</ref>


=== Multiple Counts ===
=== Multiple Counts ===


When a defendant is convicted of multiple counts of aggravated identity theft, the guidelines address whether sentences run concurrently or consecutively:
What happens when someone's convicted of multiple counts of aggravated identity theft? The guidelines recognize a distinction:


* Multiple counts involving the same victim on the same occasion: may run concurrently
* Multiple counts involving the same victim on the same occasion: these may run concurrently
* Multiple counts involving different victims or different occasions: typically run consecutively
* Multiple counts involving different victims or different occasions: these typically run consecutively
* Courts have discretion on stacking beyond the first count<ref name="ussg-2b1.6" />
* Judges retain some discretion on stacking beyond the first count<ref name="ussg-2b1.6" />


== Common Scenarios ==
== Common Scenarios ==
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=== Financial Fraud ===
=== Financial Fraud ===


Using stolen Social Security numbers, names, and dates of birth to:
This is where stolen SSNs, names, and birthdates get weaponized:


* Open fraudulent credit card accounts
* Opening fraudulent credit card accounts
* Obtain fraudulent loans
* Obtaining fraudulent loans
* File false tax returns for refunds
* Filing false tax returns for refunds
* Access existing bank accounts
* Accessing existing bank accounts


=== Government Benefits Fraud ===
=== Government Benefits Fraud ===


Using stolen identities to fraudulently obtain:
Stolen identities become tools for obtaining:


* Unemployment benefits
* Unemployment benefits
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=== Tax Refund Fraud ===
=== Tax Refund Fraud ===


Filing fraudulent tax returns using stolen identities to obtain refunds. This scheme typically involves using stolen Social Security numbers to file returns before the legitimate taxpayer.
This scheme is straightforward but damaging. Fraudsters file tax returns using stolen identities and Social Security numbers, typically filing before the legitimate taxpayer can file theirs. They intercept the refund.


== Notable Cases ==
== Notable Cases ==
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=== PPP and COVID Relief Fraud ===
=== PPP and COVID Relief Fraud ===


Thousands of defendants have been charged with aggravated identity theft in connection with COVID-19 relief fraud, including:
COVID-19 relief fraud exploded, and aggravated identity theft charges followed. Thousands of defendants were prosecuted for:


* Using stolen identities to file fraudulent PPP loan applications
* Filing fraudulent PPP loan applications using stolen identities
* Filing unemployment claims using other people's identities
* Filing unemployment claims with other people's information
* Obtaining multiple relief payments using stolen information
* Obtaining multiple relief payments through stolen data


=== Data Breach Cases ===
=== Data Breach Cases ===


Major data breaches have led to prosecutions where stolen personal information was used for fraud:
Major data breaches triggered prosecutions. Defendants purchased stolen data on the dark web. Hackers exploited breaches directly. Networks specialized in turning stolen identity data into cash. These cases show how identity theft isn't just a consumer problem; it's an organized crime business.
 
* Defendants who purchased stolen data on the dark web and used it for fraud
* Hackers who exploited data breaches for financial gain
* Networks that specialized in monetizing stolen identity data


=== Tax Fraud Rings ===
=== Tax Fraud Rings ===


Organized groups that:
Organized groups operated differently. They would:


* Stole identities from healthcare facilities, employers, and other sources
* Steal identities from healthcare facilities, employers, and other sources
* Filed thousands of fraudulent tax returns
* File thousands of fraudulent tax returns
* Received refunds on prepaid debit cards
* Receive refunds on prepaid debit cards


== Statistics ==
== Statistics ==


According to federal data:
The numbers tell the story:


* Aggravated identity theft is charged in approximately 2,000-3,000 federal cases annually
* Aggravated identity theft shows up in approximately 2,000-3,000 federal cases annually
* The offense is commonly charged alongside wire fraud, bank fraud, and access device fraud
* It's typically charged alongside wire fraud, bank fraud, and access device fraud
* The mandatory consecutive sentence significantly increases total sentences in fraud cases
* The mandatory consecutive sentence dramatically increases total sentences in fraud cases
* Immigration-related cases involving identity documents are a major category
* Immigration-related cases involving identity documents form a major category
* COVID-19 relief fraud led to a substantial increase in aggravated identity theft prosecutions<ref name="ussc-stats">United States Sentencing Commission, 2023 Annual Report and Sourcebook of Federal Sentencing Statistics.</ref>
* COVID-19 relief fraud caused a sharp spike in aggravated identity theft prosecutions<ref name="ussc-stats">United States Sentencing Commission, 2023 Annual Report and Sourcebook of Federal Sentencing Statistics.</ref>


== Defenses ==
== Defenses ==
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=== No Knowledge of Real Person ===
=== No Knowledge of Real Person ===


Following ''Flores-Figueroa'', the government must prove the defendant knew the identity belonged to an actual person. If the defendant believed they were using a fabricated identity, conviction is improper. However, circumstantial evidence of knowledge (such as obtaining the information from identity theft databases) may establish this element.
''Flores-Figueroa'' created real defense potential here. The government must prove you knew the identity belonged to an actual person. If you genuinely believed you were using a fabricated identity, conviction shouldn't stand. Still, circumstantial evidence matters. Getting identity information from identity theft databases? That suggests knowledge. It's a factual question, but it's available.


=== No Use "During and In Relation To" ===
=== No Use "During and In Relation To" ===


The identity theft must occur "during and in relation to" a predicate felony. If the identity theft was separate from or merely incidental to the charged offense, this element may be lacking.
The identity theft must occur "during and in relation to" a predicate felony. Say the identity theft happened months before the fraud scheme. Or it was incidental, not central to the crime. Then this element may fail.


=== No Predicate Felony ===
=== No Predicate Felony ===


Aggravated identity theft requires commission of an enumerated predicate offense. If the defendant is acquitted of or the charges do not include an enumerated offense, aggravated identity theft cannot stand.
Simple but crucial. Aggravated identity theft requires an enumerated predicate offense. No enumerated offense, no aggravated identity theft. If you're acquitted of the predicate crime or it's not charged, the identity theft count can't stand on its own.


=== Lawful Authority ===
=== Lawful Authority ===


The defendant may argue they had lawful authority to use the identification, such as having permission from the owner or acting in an official capacity.
Did you have permission? Were you acting in an official capacity? You can argue lawful authority to use the identification.


== Impact on Plea Negotiations ==
== Impact on Plea Negotiations ==


The mandatory consecutive sentence makes aggravated identity theft a powerful tool in plea negotiations:
That mandatory 2-year sentence becomes leverage. Serious leverage.


* Prosecutors may offer to dismiss identity theft counts in exchange for guilty pleas to underlying fraud charges
Prosecutors offer to dismiss identity theft counts in exchange for guilty pleas to underlying fraud charges. Defendants facing multiple counts of identity theft calculate the math: each count adds 2 years automatically. The certainty drives plea agreements. People accept deals they might otherwise refuse because the alternative is years of hard time they can't avoid.
* The 2-year mandatory minimum creates significant leverage
* Defendants facing multiple counts of identity theft may face decades of additional time
* The certainty of additional prison time often encourages plea agreements


== Related Offenses ==
== Related Offenses ==
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=== Identity Theft (18 U.S.C. § 1028) ===
=== Identity Theft (18 U.S.C. § 1028) ===


The base identity theft statute covers broader conduct without the mandatory consecutive requirement. Penalties range from 5-30 years depending on the specific subsection.
The base statute covers broader conduct without the mandatory consecutive requirement. Penalties range from 5-30 years depending on the specific subsection.


=== Access Device Fraud (18 U.S.C. § 1029) ===
=== Access Device Fraud (18 U.S.C. § 1029) ===


Covers fraud involving credit cards, account numbers, and electronic access devices. Often charged alongside identity theft.
This covers fraud involving credit cards, account numbers, and electronic access devices. Prosecutors often charge it alongside identity theft.


=== Computer Fraud (18 U.S.C. § 1030) ===
=== Computer Fraud (18 U.S.C. § 1030) ===


Covers unauthorized access to computers, often used to obtain identity information for fraud.
Unauthorized computer access falls here, especially when used to obtain identity information for fraud schemes.


== See also ==
== See also ==
Line 219: Line 215:
* [[False Statements|False Statements]]
* [[False Statements|False Statements]]
* [[Federal Sentencing Guidelines and Offense Enhancements|Federal Sentencing Guidelines and Offense Enhancements]]
* [[Federal Sentencing Guidelines and Offense Enhancements|Federal Sentencing Guidelines and Offense Enhancements]]


== Frequently Asked Questions ==
== Frequently Asked Questions ==
{{FAQSection/Start}}
{{FAQSection/Start}}
{{FAQ|question=What is aggravated identity theft?|answer=Aggravated identity theft under 18 U.S.C. § 1028A is using another person's identity to commit certain federal crimes. It carries a mandatory 2-year prison sentence that must run consecutive to (after) any sentence for the underlying crime, with no possibility of probation.}}
{{FAQ|question=What is aggravated identity theft?|answer=Aggravated identity theft under 18 U.S.C. § 1028A means using another person's identity to commit certain federal crimes. It carries a mandatory 2-year prison sentence that must run consecutive to (after) any sentence for the underlying crime. No probation is allowed.}}
{{FAQ|question=What is the sentence for aggravated identity theft?|answer=Aggravated identity theft carries a mandatory 2-year prison sentence (5 years if terrorism-related). This sentence must run consecutive to any other sentence—meaning it adds exactly 2 years to the total time served, and the judge has no discretion to reduce it.}}
{{FAQ|question=What is the sentence for aggravated identity theft?|answer=Aggravated identity theft carries a mandatory 2-year prison sentence (5 years if terrorism-related). This sentence must run consecutive to any other sentence, meaning it adds exactly 2 years to the total time served. The judge has no discretion to reduce it.}}
{{FAQ|question=Can a judge reduce the 2-year sentence?|answer=No. The 2-year sentence is mandatory and cannot be reduced by the judge. It must run consecutive to other sentences and cannot be served as probation. This is one of the few truly mandatory minimum sentences in federal law with no judicial discretion.}}
{{FAQ|question=Can a judge reduce the 2-year sentence?|answer=No. The 2-year sentence is mandatory and cannot be reduced by the judge. It must run consecutive to other sentences and cannot be served as probation. This is one of the few truly mandatory minimum sentences in federal law with no judicial discretion.}}
{{FAQ|question=What crimes can trigger aggravated identity theft?|answer=Aggravated identity theft applies when identity theft occurs "during and in relation to" certain enumerated felonies, including wire fraud, mail fraud, bank fraud, healthcare fraud, immigration document fraud, tax fraud, and access device fraud, among others.}}
{{FAQ|question=What crimes can trigger aggravated identity theft?|answer=Aggravated identity theft applies when identity theft occurs "during and in relation to" certain enumerated felonies, including wire fraud, mail fraud, bank fraud, healthcare fraud, immigration document fraud, tax fraud, and access device fraud, among others.}}

Latest revision as of 16:47, 23 April 2026

Aggravated Identity Theft
Statute:18 U.S.C. § 1028A
U.S. Code:Title 18, Chapter 47
Max Prison:2 years mandatory consecutive (5 years for terrorism)
Max Fine:$250,000
Guidelines:USSG §2B1.6
Base Level:N/A (mandatory consecutive)
Agencies:FBI, USSS, FTC, SSA-OIG
Related:Wire Fraud, Bank Fraud, False Statements

Aggravated identity theft is a federal crime under 18 U.S.C. § 1028A. It carries a mandatory minimum consecutive sentence for using someone else's identification during and in relation to certain enumerated felony offenses. Here's the key difference from most federal crimes: judges have virtually no discretion. They must impose a 2-year sentence that runs consecutive to any other sentence the defendant receives.[1]

Congress enacted this statute as part of the Identity Theft Penalty Enhancement Act of 2004, responding to a serious and growing problem. Identity theft wasn't just a standalone crime anymore; it was being used to enable fraud, immigration violations, and countless other federal offenses. The mandatory consecutive requirement substantially increases punishment for defendants who steal identities to commit these crimes.[2]

Elements of the Offense

To secure a conviction under 18 U.S.C. § 1028A, prosecutors must prove each of these elements:

  1. Means of Identification: The defendant knowingly transferred, possessed, or used a means of identification of another person
  2. Without Lawful Authority: The defendant had no lawful authority to do so
  3. During and In Relation To: The use occurred during and in relation to an enumerated felony offense
  4. Knowledge: The defendant knew the identification belonged to another actual person[3]

Means of Identification

The statute casts a wide net here. Under 18 U.S.C. § 1028(d)(7), "means of identification" includes:

  • Name
  • Social Security number
  • Date of birth
  • Driver's license number
  • Passport number
  • Alien registration number
  • Government-issued identification number
  • Unique biometric data (fingerprints, voice print, retina image)
  • Unique electronic identification number or address (routing code)
  • Telecommunication identifying information or access device

Knowledge Requirement

This one changed things. In Flores-Figueroa v. United States (2009), the Supreme Court made clear that prosecutors must prove the defendant knew the identification belonged to an actual person. Say you're using a Social Security number you think you made up. It just happens to match someone real. That's not aggravated identity theft under this case, because you didn't know it belonged to a real person. The government has to show you knew.[3]

Enumerated Predicate Offenses

Aggravated identity theft only applies when the identity theft occurs "during and in relation to" specific felonies. Here's the list:

Fraud and Related Crimes:

  • Mail fraud (18 U.S.C. § 1341)
  • Wire fraud (18 U.S.C. § 1343)
  • Bank fraud (18 U.S.C. § 1344)
  • Healthcare fraud (18 U.S.C. § 1347)
  • Access device fraud (18 U.S.C. § 1029)
  • Computer fraud (18 U.S.C. § 1030)

Immigration Offenses:

  • Illegal reentry (8 U.S.C. § 1326)
  • Document fraud (18 U.S.C. § 1546)
  • Social Security fraud (42 U.S.C. § 408)

Other Offenses:

  • Theft of public money (18 U.S.C. § 641)
  • False statements (18 U.S.C. § 1001)
  • Passport fraud (18 U.S.C. § 1542)
  • Nationality fraud (18 U.S.C. § 1015)[1]

Statutory Penalties

Category Mandatory Minimum Maximum Fine Consecutive Requirement
Standard aggravated identity theft 2 years $250,000 Must run consecutive
Terrorism-related identity theft 5 years $250,000 Must run consecutive

The penalties break down like this:

  • That 2-year (or 5-year) sentence must run consecutive to the underlying predicate offense's sentence
  • No concurrent sentences allowed
  • Courts can't impose probation in place of imprisonment
  • Using a different person's identification in separate instances? Each one is a separate count[1]

Federal Sentencing Guidelines

Under USSG §2B1.6, aggravated identity theft sentencing is refreshingly straightforward. The guideline simply directs judges to impose the mandatory 2-year consecutive sentence the statute requires. There are no enhancements. No adjustments. No tricks. The sentence is fixed by law.

Relationship to Underlying Offense

Here's how it works in practice. The predicate offense gets sentenced separately under its own guideline. Then the aggravated identity theft sentence gets stacked on top, running consecutively. Example:

  • Defendant convicted of wire fraud with a guideline range of 24-30 months
  • Also convicted of aggravated identity theft
  • Judge sentences the wire fraud to 27 months
  • Judge adds 24 months consecutive for the identity theft
  • Total minimum: 51 months[4]

Multiple Counts

What happens when someone's convicted of multiple counts of aggravated identity theft? The guidelines recognize a distinction:

  • Multiple counts involving the same victim on the same occasion: these may run concurrently
  • Multiple counts involving different victims or different occasions: these typically run consecutively
  • Judges retain some discretion on stacking beyond the first count[4]

Common Scenarios

Financial Fraud

This is where stolen SSNs, names, and birthdates get weaponized:

  • Opening fraudulent credit card accounts
  • Obtaining fraudulent loans
  • Filing false tax returns for refunds
  • Accessing existing bank accounts

Government Benefits Fraud

Stolen identities become tools for obtaining:

  • Unemployment benefits
  • Social Security benefits
  • Medicare or Medicaid benefits
  • PPP loans and COVID relief payments

Using another person's identity documents to:

  • Work in the United States without authorization
  • Obtain driver's licenses or state identification
  • Reenter the country after deportation

Tax Refund Fraud

This scheme is straightforward but damaging. Fraudsters file tax returns using stolen identities and Social Security numbers, typically filing before the legitimate taxpayer can file theirs. They intercept the refund.

Notable Cases

PPP and COVID Relief Fraud

COVID-19 relief fraud exploded, and aggravated identity theft charges followed. Thousands of defendants were prosecuted for:

  • Filing fraudulent PPP loan applications using stolen identities
  • Filing unemployment claims with other people's information
  • Obtaining multiple relief payments through stolen data

Data Breach Cases

Major data breaches triggered prosecutions. Defendants purchased stolen data on the dark web. Hackers exploited breaches directly. Networks specialized in turning stolen identity data into cash. These cases show how identity theft isn't just a consumer problem; it's an organized crime business.

Tax Fraud Rings

Organized groups operated differently. They would:

  • Steal identities from healthcare facilities, employers, and other sources
  • File thousands of fraudulent tax returns
  • Receive refunds on prepaid debit cards

Statistics

The numbers tell the story:

  • Aggravated identity theft shows up in approximately 2,000-3,000 federal cases annually
  • It's typically charged alongside wire fraud, bank fraud, and access device fraud
  • The mandatory consecutive sentence dramatically increases total sentences in fraud cases
  • Immigration-related cases involving identity documents form a major category
  • COVID-19 relief fraud caused a sharp spike in aggravated identity theft prosecutions[5]

Defenses

No Knowledge of Real Person

Flores-Figueroa created real defense potential here. The government must prove you knew the identity belonged to an actual person. If you genuinely believed you were using a fabricated identity, conviction shouldn't stand. Still, circumstantial evidence matters. Getting identity information from identity theft databases? That suggests knowledge. It's a factual question, but it's available.

No Use "During and In Relation To"

The identity theft must occur "during and in relation to" a predicate felony. Say the identity theft happened months before the fraud scheme. Or it was incidental, not central to the crime. Then this element may fail.

No Predicate Felony

Simple but crucial. Aggravated identity theft requires an enumerated predicate offense. No enumerated offense, no aggravated identity theft. If you're acquitted of the predicate crime or it's not charged, the identity theft count can't stand on its own.

Lawful Authority

Did you have permission? Were you acting in an official capacity? You can argue lawful authority to use the identification.

Impact on Plea Negotiations

That mandatory 2-year sentence becomes leverage. Serious leverage.

Prosecutors offer to dismiss identity theft counts in exchange for guilty pleas to underlying fraud charges. Defendants facing multiple counts of identity theft calculate the math: each count adds 2 years automatically. The certainty drives plea agreements. People accept deals they might otherwise refuse because the alternative is years of hard time they can't avoid.

Identity Theft (18 U.S.C. § 1028)

The base statute covers broader conduct without the mandatory consecutive requirement. Penalties range from 5-30 years depending on the specific subsection.

Access Device Fraud (18 U.S.C. § 1029)

This covers fraud involving credit cards, account numbers, and electronic access devices. Prosecutors often charge it alongside identity theft.

Computer Fraud (18 U.S.C. § 1030)

Unauthorized computer access falls here, especially when used to obtain identity information for fraud schemes.

See also

Frequently Asked Questions

Q: What is aggravated identity theft?

Aggravated identity theft under 18 U.S.C. § 1028A means using another person's identity to commit certain federal crimes. It carries a mandatory 2-year prison sentence that must run consecutive to (after) any sentence for the underlying crime. No probation is allowed.


Q: What is the sentence for aggravated identity theft?

Aggravated identity theft carries a mandatory 2-year prison sentence (5 years if terrorism-related). This sentence must run consecutive to any other sentence, meaning it adds exactly 2 years to the total time served. The judge has no discretion to reduce it.


Q: Can a judge reduce the 2-year sentence?

No. The 2-year sentence is mandatory and cannot be reduced by the judge. It must run consecutive to other sentences and cannot be served as probation. This is one of the few truly mandatory minimum sentences in federal law with no judicial discretion.


Q: What crimes can trigger aggravated identity theft?

Aggravated identity theft applies when identity theft occurs "during and in relation to" certain enumerated felonies, including wire fraud, mail fraud, bank fraud, healthcare fraud, immigration document fraud, tax fraud, and access device fraud, among others.


Q: Do I have to know the identity belongs to a real person?

Yes. The Supreme Court ruled in Flores-Figueroa v. United States (2009) that the government must prove you knew the identity belonged to an actual person. Using a made-up identity that happens to match a real person's information is not aggravated identity theft if you didn't know it was real.


Q: Can I be charged with multiple counts of aggravated identity theft?

Yes. Each use of a different person's identity can be a separate count, potentially adding 2 years for each count. Courts have some discretion on whether multiple counts run concurrently or consecutively after the first count.


References

  1. ↑ 1.0 1.1 1.2 18 U.S.C. § 1028A.
  2. ↑ Identity Theft Penalty Enhancement Act of 2004, Pub. L. 108-275.
  3. ↑ 3.0 3.1 Flores-Figueroa v. United States, 556 U.S. 646 (2009).
  4. ↑ 4.0 4.1 United States Sentencing Commission, USSG §2B1.6 (2024).
  5. ↑ United States Sentencing Commission, 2023 Annual Report and Sourcebook of Federal Sentencing Statistics.


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