18 USC 1028 Federal Identity Theft: The Consecutive Sentence Trap That Doubles Prison Time

18 USC 1028 Federal Identity Theft: The Consecutive Sentence Trap That Doubles Prison Time

The two-year sentence isn’t the problem. It’s that the two years get added to whatever else you’re facing. Federal identity theft under 18 USC 1028A carries a mandatory 2-year prison sentence that runs consecutively – not concurrently. Not instead of. On top of. Wire fraud carries up to 20 years. Add aggravated identity theft and that becomes 22 years minimum. And prosecutors can stack multiple counts. Five victims equals ten mandatory additional years before you even get to the underlying crime. The judge has zero discretion. Your lawyer can’t negotiate it away. Once convicted under 1028A, those years are locked in.

Here’s the number that should terrify anyone facing these charges: 99%. According to the U.S. Sentencing Commission, 99.0% of people convicted under 18 USC 1028A go to federal prison. Not probation. Not house arrest. Federal prison. The average sentence is 54 months – four and a half years. And that average includes all the people who pled guilty and cooperated. The people who went to trial and lost are serving considerably more.

The federal identity theft statutes – 18 USC 1028 and its companion 1028A – work together to create one of the most dangerous charging combinations in federal law. Section 1028 is the basic identity theft statute. Section 1028A is the “aggravated” enhancement that adds the mandatory consecutive time. Most people facing federal identity theft charges don’t realize until it’s too late that the enhancement isn’t optional once prosecutors decide to charge it. And prosecutors charge it constantly. The percentage of federal identity theft cases charged as “aggravated” has more than doubled since 2006.

The Two Years Get Added, Not Substituted

Federal judges have zero discretion when it comes to the 1028A sentence. They cant make it concurrent with other charges. They cant reduce it for good behavior. They cant reduce it for acceptance of responsibility. Once your convicted under Section 1028A, those two years are locked in. No parole in the federal system. No good-time credit that can eliminate this sentence. Two years means two years – after you complete whatever sentence you recieve for the underlying crime.

What defendants dont understand is that those two years would be added to the twenty years faced for wire fraud, not served instead of them. And because prosecutors can charge multiple counts of aggravated identity theft – each carrying its own mandatory two-year consecutive sentence – a two-year problem can become a fourteen-year sentence. Every victim is potentialy a seperate count. Every count is two more years. This isnt hypothetical. This is how federal sentencing actualy works.

99% Go to Prison – This Isn’t State Court

State identity theft cases often end in probation. People plead guilty, pay restitution, stay out of trouble for a few years, and move on with there lives. Federal identity theft dosent work that way. The U.S. Sentencing Commision data is clear: 99.0% of people convicted under 1028A go to prison. Thats not a scare statistic. Thats the reality of federal sentencing for identity theft. Your not going to be the 1% that gets probation. Plan accordingly.

Heres where it gets worse. The average sentence for someone convicted under 1028A is 54 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. The “aggravated” enhancement isnt a minor add-on. Its the difference between less then two years and four and a half years. And that gap has been growing wider every year.

Heres what the numbers reveal: The average guideline minimum increased from 56 months in fiscal year 2020 to 68 months in fiscal year 2024. The average sentence imposed increased from 44 months in fiscal year 2020 to 54 months in fiscal year 2024. Federal identity theft sentances are getting longer, not shorter. If your facing these charges in 2025, your looking at tougher sentances then people faced five years ago.

How Count Stacking Turns Two Years Into Twenty

The count stacking problem is were federal identity theft prosecutions become truly devastating. Each count of aggravated identity theft carrys its own mandatory two-year consecutive sentance. If prosecutors charge five counts – one for each victim whos identity you alledgedly used – thats ten mandatory years before you even get to the underlying fraud charge. Wire fraud can carry 20 years per count. Add five counts of 1028A and your total exposure jumps to 30 years.

Think about what this means for plea negotations. Your lawyer might be able to negotiate a lower sentance on the wire fraud. They might get the prosecutor to agree to recommend a reduced guideline range. But the 1028A counts? Those are untouchable. Even if the prosecutor agrees to drop some fraud counts, the identity theft sentances remain mandatory and consecutive. The judge literaly cannot sentance you to less then two years per count. This gives prosecutors enormous leverage in every negotiation.

According to the U.S. Sentencing Commision, 11.0% of 1028A defendants were convicted of multiple counts in fiscal year 2024. Thats roughly one in nine people facing multiple mandatory consecutive sentances. And 89.0% of people convicted under 1028A were also convicted of another felony offense. These arnt standalone identity theft cases. There part of larger prosecutions were the identity enhancement multiplys the total exposure dramaticly.

The Flores-Figueroa Defense Nobody Mentions

Heres something most defense lawyers know but most defendants dont: the Supreme Court created a major defense oppurtunity in 2009. The case is called Flores-Figueroa v. United States, and it requires prosecutors to prove you actualy KNEW the identity you used belonged to a real person. The word “knowingly” in the statute applys to every element – including the fact that the identification belonged to someone else.

What this means in practice: if you beleived the Social Security number was made up – if you thought you were using a fabricated identity rather then stealing someone elses – you might not be guilty of aggravated identity theft under 1028A. You might still face charges under 1028 for using false documents, but the mandatory two-year consecutive sentance dosent apply. The difference between 22 months and 54 months often comes down to what you knew about the identity you used.

A more recent Supreme Court case – Dubin v. United States (2023) – further limited when 1028A applies. The Court held that the identity theft must be the “crux” of the underlying offense, not just incidental to it. These two cases together have created genuine defense oppurtunities that didnt exist before. Your attorney should be examining wheather Flores-Figueroa or Dubin might apply to your situation.

From Help Desk to 14 Years: Philip Cummings

You dont need to be a sophisticated hacker to face decades in federal prison for identity theft. Philip Cummings worked at a help desk for a software company in Long Island. When he quit in 2001, he took a spreadsheet containing customer login credentials. For the next year, he sold those credentials to scammers for about $30 each. The price of a nice dinner became the price of someones entire financial identity.

The numbers from Cummings’ case are staggering. More then 33,000 victims. Between $50 million and $100 million in total losses. The largest identity theft case in American history at the time. When federal prosecutors in the Southern District of New York announced the arrest, they made clear this wasnt about sophisticated hacking. It was about one employee who decided to monetize access he shouldnt have kept.

Cummings pled guilty and was sentenced to 14 years in federal prison in 2005. Think about that. A help desk employee with no criminal history who sold login credentials for $30 each ended up serving more then a decade in federal prison. The scale of harm – not the sophistication of the crime – determined the sentance. Federal prosecutors dont need you to be a genius to charge you with crimes that carry decade-long sentences.

Why “Aggravated” Became the Default Charge

The aggravated identity theft enhancement was supposed to be reserved for worse offenders – people who used stolen identities in connection with serious felonies. But something happened between 2006 and today. The percentage of federal identity theft cases charged as “aggravated” under 1028A more then doubled, from 21.9% in 2006 to 53.4% by 2016. What was designed as an enhancement became the standard charge.

Why did this happen? Because 1028A gives prosecutors exactly what they want: a mandatory minimum sentance that cant be negotiated away. Once they charge the aggravated enhancement, they have leverage in every plea discussion. The defendant knows the judge has no discretion. The defendant knows those two years per count are locked in. Prosecutors learned that charging 1028A transforms the entire negotiation dynamic in there favor.

The data confirms this pattern. According to the Sentencing Commision, 88.7% of people convicted under 1028A also have concurrent felony convictions. These arent standalone cases where identity theft was the only crime. These are prosecutions where identity theft became an add-on multiplier that dramatically increased the total sentance. The enhancement designed for worst cases now applies to almost everyone.

When Federal Prosecutors Get Involved

Federal law enforcement dosent investigate every identity theft case. The FBI and Secret Service have limited resources, and they focus on cases with significant loss, interstate elements, or connections to larger criminal enterprises. Local identity theft – stealing a neighbors mail and opening a credit card – usually stays in state court. Federal prosecution happens when the scale or complexity justifies federal involvement.

What triggers federal interest? Large dollar amounts – typically hundreds of thousands or millions in losses. Interstate activity – using identities across state lines or operating through the internet. Connection to other federal crimes – identity theft in service of drug trafficking, terrorism, or organized fraud schemes. Sophisticated operations – large-scale fraud rings with multiple participants. Once any of these factors is present, federal prosecutors may take the case.

The irony is that federal attention comes with federal consequences. State identity theft might result in probation and restitution. Federal identity theft means the 99% prison rate, the mandatory consecutive sentences, and the count stacking that can turn a few years into decades. Getting federally charged isnt just bad luck – it fundamentaly changes what your facing.

Why Cooperating Before Understanding Makes Things Worse

When federal agents contact you about an identity theft investigation, your first instinct might be to help. Maybe you think your a witness. Maybe you think explaining your side will make the problem go away. This instinct is dangerous. Defense attorneys have handled cases where identity theft charges got dismissed, but obstruction charges stuck. People who thought they were helping an investigation ended up as defendants.

Heres the trap: when agents first contact you, you dont fully understand the fraud mechanics yet. You dont know exactly HOW your identity was used – or how your actions might be connected. You make statements based on what you think happened. When digital forensics later reveals additional details, prosecutors can frame your evolving explanation as “changing your story.” Your honest confusion becomes evidence of consciousness of guilt.

Filing a police report can actually backfire. If you report identity theft as a victim, then later evidence suggests you were involved, your police report becomes a false statement to federal agents. Five years for lying to investigators under 18 USC 1001. You called the police to report a crime and ended up creating a new crime against yourself. The only safe response when federal agents appear is to say nothing until you have an attorney present.

What Triggers 1028A vs. Just 1028

Understanding the difference between 1028 and 1028A matters enormously for your exposure. Section 1028 is the basic identity document fraud statute – covering production, transfer, and possession of false identification documents. Penalties under 1028 vary dramatically based on conduct, from 1 year for simple possession to 30 years for terrorism-connected offenses. But judges have discretion within those ranges.

Section 1028A – the aggravated enhancement – only applies when you use anothers identity during the commission of a predicate felony. The identity theft has to be connected to a specific list of federal crimes: theft, fraud, immigration violations, terrorism. 1028A cant be charged standing alone. But when it can be charged, the mandatory consecutive sentance removes judicial discretion entirely. The enhancement transforms a negotiable sentance into a floor you cant go below.

This is why charging decisions matter so much. If prosecutors charge only Section 1028, your attorney has room to negotiate and the judge has discretion to consider your circumstances. If prosecutors add Section 1028A, two years per count becomes locked in before any other consideration. The charging decision – made entirely by prosecutors – often determines the sentance more then anything that happens at trial or during plea negotiations.

The Tax Fraud Rings That Draw Maximum Sentences

Some of the longest federal identity theft sentances come from tax refund fraud rings. Keisha Lanier of Montgomery, Alabama ran one of the largest. Between January 2011 and December 2013, her organization filed more then 9,000 false federal income tax returns claiming more than $24 million in fraudulent refunds. The IRS paid out nearly $10 million before the scheme was detected. When sentancing came, the judge imposed 180 months – fifteen years in federal prison.

Lanier’s case wasnt unique. Tamaica Hoskins of Phoenix City, Alabama led a seperate stolen identity refund scheme that filed over 1,000 false returns claiming more than $4 million in tax refunds. Her sentance: 145 months – over twelve years. These arnt outlier cases. Tax refund fraud using stolen identities is one of the most agressively prosecuted categories of federal identity theft because it directly steals from the federal goverment.

What makes tax fraud cases particularly dangerous is the count stacking potentional. Each false tax return can be a seperate count of wire fraud. Each use of a stolen identity can be a seperate count of 1028A. A scheme with 100 victims could theoreticly expose a defendant to 200 years of mandatory consecutive sentancing. Prosecutors dont charge every possible count, but they have enormous leverage in plea negotations because the maximum exposure is astronomical.

Who Gets Investigated and Prosecuted

The demographics of federal identity theft prosecution reveal who actualy faces these charges. According to U.S. Sentencing Commision data, 79.1% of people convicted under Section 1028A are men. The racial breakdown: 46.9% Black, 30.2% White, 18.4% Hispanic, and 4.5% other races. The average age is 39. This isnt a crime of teenagers making stupid mistakes. Federal identity theft defendants are adults in the prime of there working lives.

Case volume has been declining slightly – down 12.9% from fiscal year 2020 to fiscal year 2024. But sentances have been increasing. The average guidline minimum rose from 56 months to 68 months over the same period. Fewer cases, harsher punishments. Federal prosecutors appear to be focusing on larger schemes with more significant losses, and judges are responding with longer sentances.

Heres what the data tells you about your odds: if your being investigated federaly for identity theft, the goverment beleives your case involves significant loss, interstate activity, or connection to larger criminal activity. Small-scale identity theft stays in state court. Federal prosecution means prosecutors see your case as worth there limited resources – and that means there confident they can win and obtain a substantial sentance.

The Consequences That Last Beyond Prison

A federal identity theft conviction dosent end when you complete your sentance. Your a convicted felon – which means loss of voting rights in many states, loss of firearm rights permanantly, and a criminal record that follows you for life. Federal convictions cant be expunged. The “fresh start” that some state systems offer dosent exist in federal court. Your conviction will appear on every background check forever.

Employment in financial services becomes nearly impossible. Banks, insurance companys, and investment firms conduct thorough background checks and generaly wont hire people with fraud-related convictions. Profesional licenses – accounting, law, medicine, real estate – often require disclosure of felony convictions and may be denied or revoked. The career you built before the charges may never be recoverable.

Restitution orders can haunt you for decades after release. Federal courts frequently order identity theft defendants to repay victims for there losses – and these restitution obligations survive bankruptcy. You cant discharge them. You cant negotiate them down after conviction. The debt follows you, with the federal goverment having extensive power to garnish wages and seize tax refunds until the full amount is paid.

What to Do When Facing Federal Identity Theft Charges

If federal agents contact you about identity theft, stop talking immediately. Exercise your right to remain silent and request an attorney. Every word you say without counsel becomes potential evidence – either of the identity theft itself or of false statements if your explanation changes. The agents already have documents and digital evidence. They arnt asking questions because they need information. There testing whether your story matches what they already know.

Find an attorney with specific experience in federal identity theft defense. This means someone who understands the interplay between 1028 and 1028A, who knows how count stacking works, and who can evaluate whether Flores-Figueroa or Dubin might provide a defense. Federal criminal defense is specialized work. A lawyer who handles state identity theft cases dosent necessarily understand federal sentencing dynamics.

The 99% prison rate for 1028A convictions is real. The mandatory consecutive sentances are real. The count stacking that turns two years into twenty is real. But defenses exist, and early intervention matters. The charging decision – whether to add 1028A or proceed only under 1028 – can sometimes be influenced before indictment. Once charges are filed, options narrow dramatically. Time spent waiting is leverage lost. Get representation immediately.