Aggravated Identity Theft – 18 U.S.C. § 1028A
Identity theft can be scary and frustrating. Getting accused of aggravated identity theft is even worse. But there are defenses and options, even though the charges are serious. This article will break it down in simple terms so you can understand the law and your rights.
What is Aggravated Identity Theft?
Aggravated identity theft is when someone steals and uses another person’s identity information like their name, social security number, or credit card number as part of committing a serious crime.
The specific law is 18 U.S.C. § 1028A. It says if you knowingly transfer, possess, or use someone else’s means of identification without permission during and in relation to a bunch of felonies, you can be charged with aggravated identity theft.
Some examples of felonies where aggravated identity theft can be charged are:
- Fraud, like mortgage fraud or tax fraud
- Bank fraud
- Credit card fraud
- Computer fraud
- Drug crimes
- Human trafficking
- Money laundering
- Immigration violations
So if you’re accused of doing any of those crimes using someone else’s identity, you could face aggravated identity theft charges too.
Penalties for Aggravated Identity Theft
The penalties for aggravated ID theft are harsh:
- Mandatory minimum 2 years in prison – The judge can’t give you less than 2 years if you’re convicted. It must be at least 2 years.
- Consecutive sentence – The 2+ years must be served consecutively (back-to-back) with any other sentences you get for the connected felony. So if the connected crime has a 5 year sentence, you’d serve 5 years plus the 2 years for aggravated ID theft, for a total of 7 years.
Some key things about the mandatory minimum 2 year sentence:
- No early release – The law prohibits early release, parole, or probation for aggravated ID theft convictions, so you must serve the full 2 years.
- Per count – The mandatory 2 years is required for each aggravated ID theft count. If you’re convicted of 3 counts, that’s 6 years added consecutively.
- Harsher than guidelines – The mandatory minimum trumps federal sentencing guidelines, so even if the guidelines recommend less time, the judge must impose 2+ years per count.
So in summary, aggravated identity theft convictions add a guaranteed 2+ years per count that must be served consecutively on top of time for any connected felony. That’s why defending against these charges is so important.
Defenses Against Aggravated Identity Theft Charges
The best defense is attacking the mandatory minimum 2 year consecutive sentence. If that sentence goes away, the aggravated ID theft charge loses its teeth.
Here are some ways good criminal defense lawyers fight the mandatory minimum:
- Argue the felony wasn’t “in relation to” the identity theft – The law requires that the identity theft happened “in relation to” one of the predicate felonies. If the defense can show the ID theft wasn’t actually related to the other felony, then the mandatory minimum might not apply.
- Challenge if the identity “means” were actually used – The law requires that the defendant used the victim’s identity “means”, like their name, SSN, or credit card number. If the defense can show the defendant never actually used those means, the mandatory minimum might not apply.
- Dispute if the defendant knew the identity was stolen – The law requires the defendant knew the identity belonged to a real person. If there’s a viable argument the defendant didn’t know the ID was stolen from a real person, the mandatory minimum might not apply.
- Allege unconstitutional vagueness – The defense may claim the statute is too vague on what “in relation to” means, arguing the mandatory minimum is unconstitutional. Some courts have agreed, some not.
- Prove factual innocence – If the defense can show factual innocence on the charges, both the connected felony and aggravated ID theft, then there is no conviction and no mandatory minimum sentence.
In addition to fighting the mandatory minimum, other standard criminal defense strategies apply to aggravated identity theft charges, like:
- File motions to suppress evidence or statements
- Challenge the credibility of witnesses
- Raise reasonable doubt about intent
- Claim mistaken identity
- Allege entrapment by police
- Negotiate a plea deal
A skilled criminal defense lawyer thoroughly investigates the case facts and looks for every viable defense angle. Their goal is getting charges dismissed or beating the mandatory minimum if possible.
What to Do if Charged with Aggravated Identity Theft
Finding out you’re charged with aggravated identity theft is scary. But don’t panic. Here are some tips if it happens:
- Don’t talk to police – Invoke your right to remain silent and ask for a lawyer immediately. Anything you say can be used against you.
- Hire an experienced federal criminal defense lawyer – These are complex charges that call for an attorney well-versed in federal law and procedure.
- Follow your lawyer’s advice – They know how to build the best defense strategy for your unique situation. Trust their guidance.
- Understand your options – There may be ways to get charges reduced or dismissed through motions or negotiating with the prosecution.
- Consider the risks of trial – Your lawyer can advise if the risks of losing at trial outweigh the benefits of a plea offer.
- Get character references – Upstanding people vouching for your good character can help at sentencing if convicted.
- Stay positive – It’s a scary situation but try to stay hopeful. With an aggressive defense, the outcome may be better than you fear.
Dealing with aggravated identity theft charges is daunting. But an experienced federal criminal defense lawyer can thoroughly analyze the case and build the strongest defense to either beat the charges or mitigate the penalties. Don’t go it alone. The stakes are high, but skilled representation maximizes the chance of the best resolution.
Frequently Asked Questions
Q: What if police want me to answer questions or confess?
A: Respectfully decline and ask for your lawyer. Anything you say can hurt your case, so it’s best to stay silent until your lawyer is present.
Q: How can I afford a good lawyer for federal charges?
A: Don’t worry about money up front. Many lawyers offer payment plans or flexible pricing. Some may accept credit cards too. Find the best lawyer you can and negotiate affordable rates.
Q: What if they offer me a plea deal?
A: Discuss any plea offers thoroughly with your lawyer. They’ll advise if the deal is favorable or risky compared to going to trial. Make sure you understand all the terms before deciding.
Q: Can I negotiate the charges or sentence?
A: Possibly, yes. An experienced lawyer knows how to approach the prosecution and negotiate effectively. Charges or sentencing often can be reduced with skilled negotiation.
Q: Should I just plead guilty and get it over with?
A: Almost never a good idea. Pleading guilty means giving up all defenses and leverage. An aggressive lawyer can often get charges dropped or reduced through negotiation.
The Bottom Line
Being accused of aggravated identity theft can be scary. But skilled defense lawyers know how to attack the charges and fight the harsh mandatory minimum sentence. Don’t go it alone. Hire the best lawyer you can right away to maximize the chance of the best outcome. It won’t be easy, but strong legal advocacy gives you the fighting chance you deserve.