Criminal Defense Lawyers

18 USC 1028 Identity Theft Federal

The defendant thought his exposure was two years. That’s what he’d read online about aggravated identity theft—a two-year mandatory minimum. What he didn’t understand was that those two years would be added to the twenty years he faced for wire fraud, not served instead of them. And because he’d used multiple people’s identities in the scheme, prosecutors charged him with multiple counts of aggravated identity theft, each carrying its own mandatory two-year consecutive sentence. His two-year problem became a fourteen-year sentence. This is how federal identity theft law actually works—and why 18 USC 1028 and its companion statute 1028A are among the most dangerous charges in the federal criminal code.

Federal identity theft encompasses far more than stealing someone’s Social Security number to open credit cards. The statute covers producing false identification documents, transferring stolen documents, possessing documents with unlawful intent, and using another person’s identification in connection with any federal crime. Each category carries different penalties, ranging from five years to thirty years depending on the circumstances. But the real danger lies in Section 1028A—aggravated identity theft—which adds a mandatory minimum sentence on top of whatever punishment the underlying crime carries.

This article explains how federal identity theft charges work, why the aggravated identity theft enhancement transforms minor fraud into major prison time, and what defenses actually exist against these charges. Two recent Supreme Court cases—Flores-Figueroa and Dubin—have significantly changed the legal landscape, creating genuine defense opportunities that didn’t exist before. Understanding these developments could mean the difference between a decade in prison and charges being dismissed entirely.

The structure of federal identity theft law is designed to maximize prosecutorial leverage. Prosecutors can charge the underlying crime (fraud, theft, immigration violations) and then add aggravated identity theft charges on top. Each identity theft count adds mandatory consecutive prison time. The defendant faces enormous pressure to plead guilty because the alternative is potentially decades of additional imprisonment. This is why identity theft charges appear in virtually every federal fraud prosecution—they’re a pressure point that makes plea negotiations heavily favor the government.

What makes these charges particularly dangerous is the mandatory minimum aspect. Federal judges have no discretion to reduce or eliminate the two-year aggravated identity theft sentence. They can’t make it concurrent with other charges. They can’t reduce it for good behavior or acceptance of responsibility. Once you’re convicted under Section 1028A, those two years (or more, if multiple counts) are locked in. This rigid sentencing structure removes any possibility of judicial mercy and gives prosecutors enormous power over plea negotiations.

The Consecutive Sentence Trap: Why 2 Years Becomes 12 Years

Heres what most people dont understand about aggravated identity theft under 18 USC 1028A: the two-year mandatory minimum is consecutive, not concurrent. This distinction is everything. Concurrent sentences run at the same time—a two-year sentence concurrent with a ten-year sentence means you serve ten years total. Consecutive sentences run one after another—two years consecutive to ten years means you serve twelve years total.

The statute is explicit: aggravated identity theft sentences “shall… be in addition to the punishment provided for” the underlying felony. There judges have no discretion. They cant make it concurrent even if they want to. They cant reduce it for cooperation or acceptance of responsability. The mandatory minimum is absolutley mandatory—two years added to whatever else your sentenced to receive.

Consider a typical federal fraud case. Defendant commits wire fraud, faces zero to twenty years under the sentencing guidelines depending on loss amount and other factors. Lets say the guidelines recommend five years. The defendant used a victims Social Security number in the scheme—one count of aggravated identity theft. Now the minimum sentence is seven years (five plus mandatory two). If the defendant used five different victims identitys, prosecutors can charge five counts of aggravated identity theft—adding up to ten years of mandatory consecutive time to the fraud sentence.

Warning: Each use of someone’s identity can be charged as a separate count, each adding another mandatory two years. Prosecutors routinley stack aggravated identity theft counts to maximize sentencing exposure. A defendant who used twenty different peoples information faces forty years of mandatory minimums before the underlying crime is even considered. This is how relativley minor fraud schemes become life-destroying prison sentences.

How Prosecutors Stack Counts to Multiply Your Sentence

Federal prosecutors understand the power of 1028A charges, and they use them strategicaly to maximize pressure on defendants. The charging decisions are deliberate: add as many aggravated identity theft counts as the evidence supports, then offer to drop some in exchange for a guilty plea. The defendant faces an impossible calculation—go to trial and risk decades of mandatory minimums, or plead guilty and accept whatever deal the goverment offers.

The stacking happens because each “use” of someone elses identity can be a seperate count. If you submitted ten fraudulent applications using different peoples information, thats potentially ten aggravated identity theft counts—twenty years of mandatory consecutive time. If you submitted one application with five different peoples information on it, prosecutors might argue thats five seperate uses, five counts, ten years mandatory. The counting methodology varies by jurisdiction and by how aggressivley the prosecutor wants to pursue the case.

Plea negotiations in identity theft cases revolve almost entirely around the 1028A counts. The underlying fraud charge may have significant sentencing flexibility—judges can depart downward, consider mitigating factors, and impose sentences below guidelines. But the 1028A mandatory minimums eliminate that flexibility for the identity theft portion. Defendants often plead guilty specifically to avoid the stacking problem, accepting whatever sentence the goverment demands in exchange for dropping additional identity theft counts.

Dubin v. United States: The 2023 Case That Changed Everything

In June 2023, the Supreme Court decided Dubin v. United States and fundamentaly narrowed the scope of aggravated identity theft charges. Before Dubin, prosecutors interpretted 1028A extremley broadly—any use of someone elses identification “in relation to” a predicate felony could trigger the mandatory sentence. After Dubin, the identity theft must be “at the crux” of what makes the conduct criminal, not just incidental to it.

The case involved David Dubin, a healthcare provider who overbilled Medicaid by inflating the services he provided. The bills included patient names and Medicaid ID numbers—technicaly, another persons “means of identification.” Prosecutors charged aggravated identity theft, arguing Dubin “used” the patients identifications in relation to healthcare fraud. The Supreme Court rejected this broad reading unanimously.

The Court held that aggravated identity theft requires more than just using someones identification in the course of commiting a crime. The identity theft must be at “the crux of the criminality”—the use of the identification must be central to what makes the conduct illegal, not just incidental or tangential. In Dubins case, his crime was overbilling, not stealing the patients identitys. Using there names on bills was necessery to submit claims but wasnt the essence of the fraud.

This ruling creates major defense opportunitys. If your charged with aggravated identity theft but the use of someone elses identification wasnt central to the criminal scheme—if it was incidental, tangential, or just a necessery administrative detail—Dubin may provide a complete defense to the 1028A charges. This could eliminate years of mandatory minimum exposure.

The Flores-Figueroa Defense: When You Didn’t Know It Was Real

Before 2009, there was a circuit split over whether prosecutors had to prove you knew the identification you used belonged to an actual person. Some courts said no—if you used an ID that happened to belong to a real person, you were guilty regardless of whether you knew it was real. Other courts required proof of knowledge. The Supreme Court resolved this in Flores-Figueroa v. United States, ruling that the goverment must prove the defendant knew the means of identification belonged to another actual person.

This requirement creates a genuine defense. If you used information that you beleived was completley ficticious—a made-up Social Security number, a fake name, information you thought didnt belong to any real person—you may not be guilty of aggravated identity theft even if the information happened to match a real individual. The question is what you knew and beleived, not the objective reality.

Prosecutors must now prove knowledge beyond a reasonable doubt. They typicaly do this through circumstantial evidence: you obtained the information through means that suggest you knew it was real (data breaches, stolen documents, purchases from identity thieves), you used information that was too specific to be coincidental (exact names with matching addresses and Social Security numbers), or you made statements suggesting you knew the information belonged to real people.

Defense attorneys can challenge this element by showing the defendant beleived the information was fabricated, that the information was obtained in ways consistant with believing it was fake, or that the matchng to real individuals was coincidental. This defense is particulary strong in cases involving randomly generated numbers that happened to match real people.

Elements Prosecutors Must Prove

For basic identity theft under Section 1028, prosecutors must prove you engaged in one of the prohibited acts—producing, transferring, possessing, or using false identification documents or another persons means of identification—with the required mental state and jurisdictional connection. Different subsections have different requirements regarding quantities (some require five or more documents) and intent (some require intent to defraud).

For aggravated identity theft under Section 1028A, the elements are more specific:

1. Commission of Enumerated Predicate Felony: You must have committed one of the felonys listed in Section 1028A(c). This includes dozens of crimes: passport fraud, citizenship fraud, bank fraud, wire fraud, mail fraud, healthcare fraud, tax fraud, social security fraud, and many others. Essentially, any federal fraud or theft crime can serve as a predicate.

2. During and In Relation To: The identity theft must have occured “during and in relation to” the predicate felony. After Dubin, this means the identity theft must be at the crux of the criminal conduct, not just incidental to it.

3. Knowingly: You must have acted knowingly. After Flores-Figueroa, this means you must have known the identification belonged to another actual person.

4. Without Lawful Authority: You must have lacked legal permission to use the identification.

5. Means of Identification of Another Person: The identification must actually belong to a real person (not a ficticious identity) and must qualify as a “means of identification” under the statute—names, Social Security numbers, dates of birth, drivers license numbers, and similar identifying information.

Defenses That Actually Work

Several defenses have proven effective in federal identity theft cases:

Dubin Defense (Post-2023): If the use of someone elses identification wasnt “at the crux” of the criminal conduct—if it was incidental, tangential, or just a necessery administrative component—the aggravated identity theft charge may be dismissed. This defense is particulary strong in fraud cases where the defendant used real information for administrative purposes rather than as the core of the scheme.

Flores-Figueroa Knowledge Defense: If you genuinley beleived the identification was ficticious or didnt belong to a real person, you lacked the required knowledge element. Evidence supporting this defense includes how you obtained the information, whether you made efforts to verify it was fake, and statements suggesting you thought the information was fabricated.

Fourth Amendment Challenges: Identity theft cases often involve extensive digital evidence—computer searches, phone extractions, financial records. If this evidence was obtained through illegal searches, suppression motions can eliminate the goverments case. Warrantless computer searches, overbroad warrants, and improper subpoenas are all potential grounds for suppression.

Challenging the Predicate Felony: Aggravated identity theft requires conviction on an enumerated predicate felony. If you can defeat or get acquitted of the underlying fraud charge, the 1028A charge fails automaticaly. Sometimes the strongest defense to identity theft is attacking the underlying crime rather than the identity theft element itself.

How Prosecutors Build Identity Theft Cases

Understanding how federal prosecutors construct identity theft cases helps defendants and there attorneys identify weaknesses and prepare defenses. The investigation typicaly begins with a report from a victim, a financial institution, or goverment agency that detected suspicious activity. Federal agents—usually the FBI, Secret Service, or Postal Inspection Service—then investigate to determine the scope of the conduct and identify suspects.

Prosecutors rely heavily on digital evidence in identity theft cases. They subpoena records from banks, email providers, internet service companys, and phone carriers. They obtain search warrants for computers, phones, and storage devices. They trace IP addresses, analyze metadata, and reconstruct the defendant’s online activity. This digital evidence often provides the clearest picture of what happend and who was responsable.

The charging decision in identity theft cases is often strategic rather then purely factual. Prosecutors decide how many counts to charge, whether to include aggravated identity theft, and which predicate felonys to allege. These decisions dramaticaly affect the defendants sentencing exposure. A prosecutor who charges conservativley might file one count of wire fraud with one count of aggravated identity theft. A prosecutor who charges agressivley might file twenty counts of each, creating exposure of decades in mandatory minimums.

Cooperation can significanty affect outcomes in identity theft cases. Defendants who provide substansial assistance to the goverment—identifying co-conspirators, explaining schemes, testifying against others—may recieve motions for downward departure that reduce there sentences. However, cooperation dosnt eliminate mandatory minimums for 1028A convictions; it only affects the guideline calculation for other counts. The mandatory two years (or more) remains locked in regardless of cooperaton.

Penalties and Sentencing

Section 1028 penalties vary based on the specific offense:

Basic Offenses: Production, transfer, possession, or use of false identification documents carries up to 15 years imprisonment. This covers the standard identity theft conduct most people imagine—making fake IDs, stealing and selling identity information, using others identitys for fraud.

Enhanced Circumstances: If identity theft is connected to drug trafficking or violent crime, the maximum increases to 20 years. If connected to domestic or international terrorism, the maximum reaches 30 years. These enhancements apply when identity theft facilitates more serious crimes.

Aggravated Identity Theft (1028A): Mandatory 2-year consecutive sentence for most predicate felonys. Mandatory 5-year consecutive sentence for terrorism-related predicate offenses. No good time credit, no concurrent sentencing, no judicial discretion to reduce.

The sentancing guidelines for basic 1028 offenses consider factors like number of victims, total intended loss, and sophistication of the scheme. But the guidelines analysis is often secondary to the mandatory minimums—the 1028A mandatory time becomes the floor regardless of what guidelines would otherwise suggest.

Protecting Yourself: What to Do If Facing Identity Theft Charges

If your under investigation or allready charged with federal identity theft, understanding the legal landscape is critical:

Understand Your Actual Exposure: Count the potential 1028A charges. Each persons identification you used could be a seperate count, each adding two mandatory consecutive years. Your actual exposure may be far higher than you think. An attorney can analyze the charging document and explain realistic sentencing ranges.

Evaluate the Dubin Defense: Was the identity theft “at the crux” of the criminal conduct, or was it incidental? After the 2023 Supreme Court decision, cases involving incidental use of identifications may be vulnerable to dismissal on the 1028A counts. This is a technical legal analysis that requires experienced counsel.

Assess the Knowledge Element: Did you know the identifications belonged to real people? If you beleived you were using ficticious information, the Flores-Figueroa defense may apply. Document anything that supports your beleif the information wasnt real.

Consider the Underlying Charges: Sometimes the best defense to identity theft is defeating the predicate felony. If the fraud charge fails, the aggravated identity theft charge fails with it. An attorney can evaluate whether fighting the underlying crime is more promising then fighting the identity theft element.

Act Quickly on Pre-Indictment Matters: If your aware an investigation is ongoing but you havnt been charged yet, immediate action can dramaticaly affect outcomes. Experienced federal defense counsel can sometimes convince prosecutors not to bring aggravated identity theft charges at all, or to limit the number of counts. Once the indictment is filed, these opportunities largely evaporate. The window for pre-charging advocacy is narrow but extremley valuable—prosecutors are often more flexable before there committed to specific charges in a public document.

Understand the Plea Negotiation Dynamics: Most federal cases resolve through plea bargains, and identity theft cases are no exception. The goverment typicaly offers to dismiss some 1028A counts in exchange for guilty pleas on others. Evaluating these offers requires understanding your realistic trial exposure versus the plea offer, the strength of available defenses, and weather the Dubin or Flores-Figueroa arguments create enough uncertaintey to improve your negotiating position. Your attorney should be able to explain exactly how much manditory consecutive time your facing and how that compares to what the goverment is offering.

Federal identity theft charges are extremley serious, but there not hopeless. Recent Supreme Court decisions have narrowed prosecutorial options. Defenses exist that work. The key is understanding your actual exposure—including the consecutive sentence trap that turns minor charges into major time—and developing a strategy that accounts for both the identity theft charges and the underlying crimes they relate to. For more information on federal identity theft law and penalties, consult the United States Sentencing Commission research or contact qualified federal defense counsel.