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 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.

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.

Elements of the Offense

To convict under 18 U.S.C. § 1028A, the government must prove:

1. Means of Identification: The defendant knowingly transferred, possessed, or used a means of identification of another person
2. Without Lawful Authority: The defendant acted without lawful authority
3. During and In Relation To: The use occurred during and in relation to an enumerated felony offense
4. Knowledge: The defendant knew that the means of identification belonged to another actual person

Means of Identification

"Means of identification" is defined broadly in 18 U.S.C. § 1028(d)(7) to include:

• 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

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.

Enumerated Predicate Offenses

Aggravated identity theft applies when the identity theft occurs "during and in relation to" certain enumerated felonies, including:

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

Key Penalty Provisions:

• The 2-year (or 5-year) sentence must run consecutive to any sentence for the underlying predicate offense
• The sentence cannot be served concurrently with any other sentence
• Courts cannot impose probation; imprisonment is mandatory
• Each use of a different person's identification can constitute a separate count

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.

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:

• If a defendant is convicted of wire fraud with a guideline range of 24-30 months, plus aggravated identity theft
• The defendant would serve the wire fraud sentence (say, 27 months) plus 24 months consecutive for the identity theft
• Total minimum sentence: 51 months

Multiple Counts

When a defendant is convicted of multiple counts of aggravated identity theft, the guidelines address whether sentences run concurrently or consecutively:

• Multiple counts involving the same victim on the same occasion: may run concurrently
• Multiple counts involving different victims or different occasions: typically run consecutively
• Courts have discretion on stacking beyond the first count

Common Scenarios

Financial Fraud

Using stolen Social Security numbers, names, and dates of birth to:

• Open fraudulent credit card accounts
• Obtain fraudulent loans
• File false tax returns for refunds
• Access existing bank accounts

Government Benefits Fraud

Using stolen identities to fraudulently obtain:

• 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

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.

Notable Cases

PPP and COVID Relief Fraud

Thousands of defendants have been charged with aggravated identity theft in connection with COVID-19 relief fraud, including:

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

Data Breach Cases

Major data breaches have led to prosecutions where stolen personal information was used for fraud:

• 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

Organized groups that:

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

Statistics

According to federal data:

• Aggravated identity theft is charged in approximately 2,000-3,000 federal cases annually
• The offense is commonly charged alongside wire fraud, bank fraud, and access device fraud
• The mandatory consecutive sentence significantly increases total sentences in fraud cases
• Immigration-related cases involving identity documents are a major category
• COVID-19 relief fraud led to a substantial increase in aggravated identity theft prosecutions

Defenses

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.

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.

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.

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.

Impact on Plea Negotiations

The mandatory consecutive sentence makes aggravated identity theft a powerful tool in plea negotiations:

• Prosecutors may offer to dismiss identity theft counts in exchange for guilty pleas to underlying fraud charges
• 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

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.

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

Covers fraud involving credit cards, account numbers, and electronic access devices. Often charged alongside identity theft.

Computer Fraud (18 U.S.C. § 1030)

Covers unauthorized access to computers, often used to obtain identity information for fraud.

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 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.

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, and 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