Aggravated Identity Theft

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.

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.

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

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.

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)

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

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

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

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

Immigration-Related Identity Theft

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

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.

Related Offenses

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

• 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 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

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