Aggravated Identity Theft (18 U.S.C. § 1028A)

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 serious federal crime codified at 18 U.S.C. § 1028A. It punishes anyone who uses another person's identification while committing certain enumerated federal felonies. Here's what makes it distinct: the judge has no choice in sentencing. A mandatory 2-year prison term kicks in, and it runs separately from whatever sentence the defendant gets for the underlying crime.

Congress passed the Identity Theft Penalty Enhancement Act of 2004 because identity theft was exploding and fueling countless other crimes. The new law reflected serious concern about criminals stacking stolen identities with fraud schemes to multiply their gains and their victims' harm. That mandatory consecutive approach transformed how federal sentencing works for these cases.

Elements of the Offense

Prosecutors must prove all four of these elements beyond reasonable doubt:

1. Means of Identification: The defendant knowingly transferred, possessed, or used a means of identification belonging to another person
2. Without Lawful Authority: No legitimate right existed to use it
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 an actual person

Means of Identification

The statute casts a wide net. 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 prints, retina images
• Unique electronic identification numbers or addresses, including routing codes
• Telecommunication identifying information or access devices

Knowledge Requirement

This element matters. In Flores-Figueroa v. United States (2009), the Supreme Court clarified that prosecutors must show the defendant knew the identity belonged to a real, actual person. Imagine someone creates a fake Social Security number by accident and it happens to match someone real. That's not aggravated identity theft if the defendant genuinely didn't know any real person held that number. Circumstantial proof counts though. If you pulled data from an identity theft database, that suggests knowledge of real victims.

Enumerated Predicate Offenses

Aggravated identity theft only applies to a specific list of federal crimes. The identity theft must occur "during and in relation to" one of these offenses:

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)

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 law is strict here. These aren't guidelines. They're requirements with real teeth:

• That 2-year or 5-year sentence runs consecutively, meaning after any other sentence, not during it
• No concurrent service. No reduction for good behavior calculation purposes that might apply elsewhere.
• Probation isn't an option. Prison time is mandatory.
• Each identity stolen can become a separate count, stacking sentences.

Federal Sentencing Guidelines

USSG §2B1.6 addresses these cases. There's nothing complicated here because the statute leaves nothing to the judge. The guideline simply says: impose the 2-year mandatory consecutive sentence required by law. No enhancements. No adjustments. The law wrote the sentence in stone.

Relationship to Underlying Offense

Here's how it works in practice. The underlying predicate offense gets sentenced under its own guideline. That comes first. Then the aggravated identity theft sentence tacks on. Let's work through an example:

Say someone's convicted of wire fraud with a guideline range of 24 to 30 months. They're also convicted of aggravated identity theft. The judge might sentence them to 27 months for wire fraud. Then they add 24 consecutive months for the identity theft. Total: 51 months minimum.

Multiple Counts

Courts face questions about stacking when multiple identity theft counts exist:

• Same victim, same occasion: may run concurrently with each other
• Different victims or different occasions: typically run consecutively
• Judges retain discretion on whether counts beyond the first run together or separately

Common Scenarios

Financial Fraud

Thieves steal Social Security numbers, names, and birth dates then:

• Open credit card accounts in victims' names
• Apply for loans and get cash
• File false tax returns claiming refunds
• Drain existing bank accounts

Government Benefits Fraud

Stolen identities become tools for obtaining:

• Unemployment benefits
• Social Security checks
• Medicare or Medicaid funds
• PPP loans and COVID relief money

Immigration-Related Identity Theft

Foreign nationals use another person's documents to:

• Work without authorization
• Get driver's licenses or state IDs
• Reenter the country after deportation

Tax Refund Fraud

This scheme is simple but effective. Criminals file fake tax returns using stolen Social Security numbers, getting refunds before the real taxpayers even know what happened.

Notable Cases

PPP and COVID Relief Fraud

The COVID-19 pandemic opened a massive door for these crimes. Thousands faced charges:

• Stolen identities on fraudulent PPP applications
• Unemployment claims filed under other people's names
• Multiple relief payments taken using one person's stolen information

Data Breach Cases

Major breaches created opportunities that criminals quickly exploited:

• Defendants buying stolen data on dark web markets then using it
• Hackers monetizing data after exploiting systems
• Specialized networks devoted to turning stolen data into cash

Tax Fraud Rings

Organized groups operated differently. They'd:

• Steal identities from hospitals, workplaces, and other institutions
• File thousands of fraudulent returns
• Collect refunds deposited on prepaid cards

Statistics

Government data tells an interesting story:

• Between 2,000 and 3,000 federal cases annually involve aggravated identity theft charges
• It's nearly always charged with wire fraud, bank fraud, or access device fraud
• The mandatory consecutive requirement dramatically increases total sentences
• Immigration cases involving stolen documents form a major category
• COVID-19 relief fraud exploded the number of these prosecutions significantly

Defenses

No Knowledge of Real Person

Flores-Figueroa created an opening here. The government must prove you knew an actual person owned that identity. If you genuinely believed you'd invented or found a fake number, conviction fails. That said, circumstantial evidence works against defendants. Getting information from identity theft databases suggests you knew real victims existed.

No Use "During and In Relation To"

The identity theft must genuinely occur as part of the predicate crime. If it happened separately or was only incidental to something else, this element crumbles. The connection matters.

No Predicate Felony

Without conviction of an enumerated offense, aggravated identity theft doesn't apply. If you're acquitted of the underlying crime or those charges never appear in the indictment, the identity theft count falls apart too.

Lawful Authority

You might argue you had permission. Maybe the owner gave you permission. Maybe you held official authority. These are fact questions for the jury.

Impact on Plea Negotiations

That mandatory 2-year add-on changes how cases settle dramatically:

• Prosecutors leverage it heavily. Dismissing identity theft counts suddenly looks good to defendants.
• The guaranteed additional time creates real pressure.
• Someone facing five identity theft counts faces ten additional years minimum.
• Certainty shifts thinking. Many defendants accept deals to avoid the guaranteed stacking.

Related Offenses

Identity Theft (18 U.S.C. § 1028)

This is the parent statute. It covers identity theft without the mandatory minimum requirement. Sentences range from 5 to 30 years depending on which subsection applies.

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

Credit cards, account numbers, and electronic access devices all fit here. Usually charged alongside identity theft counts.

Computer Fraud (18 U.S.C. § 1030)

Unauthorized computer access often supplies the stolen identity data. These charges frequently appear together.

See also

• Wire Fraud
• Bank Fraud
• Mail Fraud
• False Statements
• Federal Sentencing Guidelines and Offense Enhancements

Frequently Asked Questions

Q: What is aggravated identity theft?

Aggravated identity theft under 18 U.S.C. § 1028A means using someone else's identification to commit certain federal crimes. It comes with a mandatory 2-year prison sentence that runs consecutive to, or after, any sentence for the underlying crime, with no possibility of probation.

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. You're looking at exactly 2 years added to your total time, and judges can't reduce it or suspend it.

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

No. The 2-year sentence is truly mandatory. Judges can't shorten it. It must run consecutive to other sentences and can't be served as probation. This represents one of the few genuinely mandatory minimum sentences in federal law where judges have zero 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. Wire fraud, mail fraud, bank fraud, healthcare fraud, immigration document fraud, tax fraud, and access device fraud all qualify, among others.

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

Yes. Flores-Figueroa v. United States (2009) established that prosecutors 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 doesn't count if you didn't know it was real.

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

Yes. Each identity stolen can be a separate count, potentially adding 2 years for each one. Courts have some discretion on whether multiple counts run together or separately after the first count.

References

Federal Offenses

White Collar Crimes: Wire Fraud · Mail Fraud · Tax Evasion · Money Laundering · Bank Fraud · Healthcare Fraud · Securities Fraud · Aggravated Identity Theft · Embezzlement · Bribery · Insurance Fraud · Mortgage Fraud

Other Federal Offenses: Drug Trafficking · Illegal Reentry · Felon in Possession · RICO · Conspiracy · False Statements · Obstruction of Justice · Child Exploitation