18 USC 1028 Federal Identity Theft

The Flores-Figueroa Loophole And Why “I Thought I Made It Up” Could Save You From Mandatory Prison

You just learned that federal prosecutors are adding aggravated identity theft to your charges. Maybe the underlying case is immigration-related. Maybe its tax fraud, credit card fraud, or something involving false documents. But now they’re throwing on 18 USC 1028A – and that charge alone carries a mandatory two-year prison sentence that gets added on top of everything else.

Here’s what nobody tells you about aggravated identity theft: there’s a Supreme Court case from 2009 that changed everything, and most defendants never learn about it until its too late. The case is called Flores-Figueroa v. United States, and it requires prosecutors to prove you actually knew the identity you used belonged to a real person. If you thought you made up the Social Security number, if you believed the identity was fabricated, you might not be guilty of aggravated identity theft at all.

This article is going to explain exactly how the Flores-Figueroa defense works, why the mandatory consecutive sentence is so devastating, what prosecutors have to prove to convict you, and how cases are actually won and lost on this issue. Because right now, you probably don’t understand the one defense that could save you from mandatory prison time.

Two Different Statutes: 1028 vs 1028A

OK so before we get into the defense strategy, you need to understand there are actually two different federal identity theft statutes, and there completely different in terms of consequences.

18 USC 1028: General Identity Document Fraud

18 USC 1028 covers the basics – producing fake IDs, transfering stolen identification documents, possessing document-making equipment with intent to commit fraud. The penalties are serious but theres flexibility. Your looking at up to 15 years for basic offenses, 20 years if its connected to drug trafficking or violent crime, 30 years for terrorism-related cases.

But heres the key difference: under 1028, judges have discretion. Sentencing guidelines apply. First-time offenders with minor roles can get probation. The mandatory minimums that make 1028A so terrifying dont apply here.

18 USC 1028A: Aggravated Identity Theft

This is were things get absolutley brutal. Under 1028A, if you knowingly use someone elses identity during the commission of certain felonies, you face a mandatory two-year prison sentence. Not guidelines. Not recommendations. Mandatory.

And it gets worse. That two years is consecutive, not concurrent. It gets added on top of whatever sentence you recieve for the underlying crime. So if your convicted of wire fraud and get three years, then the aggravated identity theft adds two more – your serving five years total, no matter what.

The judge has zero discretion. No parole in the federal system. No good-time credit that can reduce the 1028A sentence. No exceptions for first-time offenders, sympathetic circumstances, or minimal involvement. Two years, period.

The Flores-Figueroa Loophole: What Prosecutors Must Now Prove

Heres what competitors articles wont tell you, and its probably the most important thing your gonna learn if your facing these charges.

In 2009, the Supreme Court decided Flores-Figueroa v. United States. The defendant was an immigrant who had used fake Social Security and immigration documents to get a job. The question was simple: did the government have to prove he knew the numbers actually belonged to real people, or was it enough that he used false documents?

The Supreme Court ruled unanimously that prosecutors must prove the defendant KNEW the identity belonged to another actual person. The word “knowingly” in the statute applies to every element – including the fact that the identification belonged to someone else.

This changes everything. If you believed the Social Security number was made up – if you thought you were using a fabricated identity rather then stealing someone elses – your not guilty of aggravated identity theft under 1028A. You might still face charges under 1028 for using false documents, but the mandatory two-year consecutive sentence doesn’t apply.

Why This Matters So Much

Think about how identity documents actualy get used in fraud cases. Someone needs a Social Security number to work. They buy a fake card from someone. Do they know if thats a real persons number thats been stolen, or a completely fabricated number? Often they have no idea.

Before Flores-Figueroa, prosecutors could charge aggravated identity theft whenever someone used identification that happened to belong to a real person – even if the defendant had no way of knowing that. Now they have to prove you actually knew.

This is the defense that can save you from mandatory prison time. And most defendants never hear about it untill there already pleading guilty.

Made-Up Numbers vs Real Identities: Where Cases Are Won and Lost

So how do prosecutors actually prove you knew the identity was real? And how do defense attorneys challenge that proof? This is were cases are won and lost.

Circumstantial Evidence Prosecutors Use

Prosecutors cant usually point to a confession were you admitted knowing the ID belonged to someone else. Instead, they build circumstantial cases. There gonna look at:

Did you pay for the identity? Real stolen identities cost more then fabricated ones. If you paid a premium, they’ll argue you knew you were getting something real.

Did you get the identity from a source that traffics in stolen information? If the seller was known for stealing identities rather then making them up, prosecutors argue you should have known what you were buying.

Did the identity include information only available from theft? Real stolen identities often come with mothers maiden names, security questions, birth dates – details that suggest theft rather then fabrication.

Did you use the identity to access existing accounts? If you used credentials to break into someones actual bank account, thats strong evidence you knew a real person existed behind those credentials.

Defense Arguments That Work

The Flores-Figueroa defense works best in certain scenarios:

Random number scenarios. You needed a Social Security number and just made one up, or used a random number generator, or picked digits out of thin air. You had no reason to think it belonged to anyone real.

Fabricated identity packages. You bought what you were told was a completely fabricated identity – fake name, fake number, fake everything. The seller told you it was made up. You believed them.

No connection to real persons activities. You never accessed anyones accounts, never received someones mail, never did anything suggesting you knew a real person existed behind the identity. You were creating a new identity, not stealing an existing one.

If you can show you genuinly believed the identity was fabricated, the mandatory two-year sentence dosnt apply.

How The Consecutive Sentence Destroys Your Life

Let me be real with you about why the 1028A charge is so devastating, because alot of people dont understand this untill its too late.

According to the U.S. Sentencing Commission, 88.7% of people convicted under 1028A also have concurrent felony convictions. These arent standalone cases – there part of larger prosecutions for fraud, immigration offenses, drug crimes, whatever the underlying conduct was.

The average sentence for someone convicted under 1028A is 51 months. For someone convicted of identity theft without the aggravated charge, its 22 months. Thats more then double – and the difference is almost entirely the mandatory consecutive sentence stacking on top.

Heres how it plays out. Your charged with wire fraud. Under the sentencing guidelines, your looking at maybe 24-30 months. Thats bad, but its manageable. Then they add the aggravated identity theft charge. Now your looking at 24-30 months PLUS a mandatory two years. Your sentence just jumped to 48-54 months.

And because the 1028A sentence is mandatory, your lawyer cant negotiate it away. Even if the prosecutor agrees to recommend a lower sentence on the wire fraud, the two years for aggravated identity theft is untouchable. The judge literally cannot sentence you to less.

The 60 Predicate Offenses That Trigger 1028A

Aggravated identity theft under 1028A don’t apply to every crime involving fake identities. It only kicks in when the identity theft happens “during and in relation to” one of about 60 specific predicate offenses listed in the statute.

The list includes basically every federal fraud and theft crime you can think of: wire fraud, mail fraud, bank fraud, tax fraud, immigration fraud, passport fraud, Social Security fraud, health care fraud, computer fraud, and dozens more. If your underlying charge involves any kind of federal fraud, the predicate offense requirement is probably satisfied.

But this is still something your attorney should check. If the underlying conduct don’t fit one of the enumerated offenses, the aggravated identity theft charge fails regardless of what you knew about the identity.

Penalties Breakdown: What Your Actually Facing

Lets break down exactly what your looking at under each statute.

18 USC 1028 Penalties

Basic identity document fraud: up to 15 years. Connection to drug trafficking, violent crime, or prior identity theft: up to 20 years. Terrorism-related: up to 30 years. Facilitating domestic or international terrorism: up to 30 years.

But remember – these are maximums. Sentencing guidelines apply. Judges have discretion. First offenders with minor roles rarely get anywhere near the maximum.

18 USC 1028A Penalties

Standard aggravated identity theft: 2 years mandatory, consecutive. Terrorism-related: 5 years mandatory, consecutive.

No guidelines. No discretion. No exceptions. The sentence runs after you complete whatever sentence you recieve for the underlying offense. If your convicted of aggravated identity theft, your serving atleast two years in federal prison no matter what else happens in your case.

Defenses That Actually Work

OK so your facing identity theft charges. What can you actually do about it?

The Flores-Figueroa Defense

This is your best shot at avoiding the mandatory minimum. If you can show you didnt know the identity belonged to a real person – if you beleived it was fabricated – the 1028A charge should fail. Your attorney needs to investigate where you got the identity, what you were told about it, and why you would have believed it was fake rather then stolen.

Lawful Authority

If you had permission to use the documents, its not identity theft. This applies when an employer authorized you to use certain credentials, when a family member gave you permission, or when you had a legitimate business reason for possessing the documents. Your attorney needs to document the authorization.

No Intent to Defraud

Federal identity theft charges require specific intent to defraud. If you possessed the documents for innocent reasons – research, security testing, legitimate identification purposes – you may have a defense. This is narrower then it sounds, but it exists.

Challenge the Predicate Offense

1028A only applies when identity theft occurs during one of the enumerated predicate offenses. If the underlying charge dosnt fit the list, or if you can beat the underlying charge entirely, the aggravated identity theft charge falls too.

Never talk to federal agents about identity documents without an attorney. Anything you say about what you knew and when you knew it goes directly to the Flores-Figueroa question.

Immigration Cases: The Most Common Context

A huge percentage of aggravated identity theft cases arise from immigration situations. Someone needs documents to work in the United States. They obtain a Social Security card with a number thats either made up or belongs to someone else. They use it for years. Then immigration authorities catch up with them, and suddenly there facing not just deportation but federal criminal charges with mandatory prison time.

This is were Flores-Figueroa matters most. Many immigration defendants genuinely didn’t know whether the Social Security number they were using was real or fabricated. They bought documents, they used them, they never thought about were the numbers came from. Under Flores-Figueroa, the government has to prove they actually knew – and often they cant.

If your facing identity theft charges in an immigration context, the Flores-Figueroa defense should be the first thing your attorney investigates. It could mean the difference between a fraud charge with potential probation and a mandatory two-year federal prison sentence.

Mistakes That Destroy Identity Theft Cases

Three things that will absolutely destroy your defense:

First, talking to agents about were you got the documents. If you tell investigators you knew the identity was stolen, you bought it from someone who steals identities, or you paid extra for a “real” identity, your Flores-Figueroa defense is gone. Say nothing without an attorney.

Second, keeping records that show knowledge. Text messages, emails, conversations were you discussed getting “real” identities rather then fake ones – all of this can be used to prove you knew. If those records exist, your attorney needs to know about them early.

Third, using the identity to access existing accounts. If you used credentials to break into someones actual bank account or credit card, thats strong evidence you knew a real person existed. Using fabricated documents to create new accounts is very different from using stolen credentials to access existing ones.

What Happens Next: The Federal Process

If your charged with federal identity theft, heres whats coming. Arraignment first, were you enter your plea. Then discovery, were the government turns over there evidence – the documents they seized, the records they have, the statements from witnesses or cooperators.

Your attorney should immediately focus on the Flores-Figueroa question. What evidence does the government have that you knew the identity was real? Can that evidence be challenged? Are there witnesses who can support your belief that the documents were fabricated?

If the 1028A charge looks weak, your attorney may be able to negotiate it away in exchange for a guilty plea to the lesser 1028 charge. That dosnt have the mandatory minimum, so you’d have a chance at a reasonable sentence rather then automatic prison time.

If the government wont drop the 1028A charge and the evidence supports a Flores-Figueroa defense, trial might be your best option. Juries understand that people dont always know were identification documents come from. If you can create reasonable doubt about your knowledge, you can beat the aggravated charge.

Choosing Your Defense Strategy

Your going to need to make hard decisions. Fight the aggravated charge or plead to it? Focus on Flores-Figueroa or challenge the predicate offense? These decisions depend on the evidence and your specific situation.

A good federal defense lawyer will analyze exactly what the government can prove about your knowledge. They’ll investigate were you got the documents, what you were told, and whether theres evidence you knew the identity was real. Nobody can garantee outcomes in federal court. But you can make informed decisions with the right information.

Identity theft cases are winnable. The Flores-Figueroa requirement gives you room to fight. The knowledge element is real, and prosecutors often struggle to prove it beyond reasonable doubt. But you need experienced counsel who understands how these cases are built and how to take them apart.

Time matters. The sooner your lawyer is investigating the knowledge question, the better your chances of avoiding that mandatory two-year sentence.

Get help now.