Last Updated on: 19th October 2023, 02:18 pm

Federal Aggravated Identity Theft: An In-Depth Look

Identity theft can be a scary crime. Having someone steal your personal information and pretend to be you is unsettling and can lead to all sorts of problems. But there is an even more serious form of identity theft under federal law called aggravated identity theft.

Aggravated identity theft is when someone not only steals your identity, but uses it to facilitate another crime. This extra step makes the crime more serious in the eyes of the law, and can lead to strict punishments. Let’s take an in-depth look at federal aggravated identity theft laws, penalties, defenses and more so you can understand exactly what it is and how it works.

What is Aggravated Identity Theft?

Aggravated identity theft is defined in 18 U.S.C. § 1028A. The law says that anyone who knowingly transfers, possesses, or uses the means of identification of another person without legal authority during and in relation to a list of certain felony crimes, has committed aggravated identity theft.

There are a few key elements that make up aggravated identity theft:

• Knowingly using someone else’s means of identification (like name, social security number, credit card number etc.)
• Doing so without lawful authority
• Using the identity during and in relation to another felony crime

It’s the last part that makes it “aggravated.” The identity theft has to facilitate another crime for it to be aggravated identity theft. For example, someone gets your social security number and uses it to open a credit card in your name and make fraudulent purchases. That’s identity theft. But if they use your social security number to get a job, and therefore commit fraud against their employer, that’s aggravated identity theft because it facilitated another crime.

What Crimes Qualify as Predicates?

Not just any crime can serve as the predicate felony for aggravated identity theft. The statute lists out specific felony violations that qualify. Some examples of qualifying predicate felonies include:

• Theft of public money, property or rewards – 18 U.S.C. § 641
• Theft, embezzlement or misapplication by bank officer or employee – 18 U.S.C. § 656
• Theft from employee benefit plans – 18 U.S.C. § 664
• False statements in connection with the acquisition of a firearm – 18 U.S.C. § 922(a)(6)
• Fraud and false statements – Chapter 47 of Title 18
• Mail, bank and wire fraud – Chapter 63 of Title 18

The full list of qualifying predicate felonies is contained in 18 U.S.C. § 1028A(c). Essentially, it covers any felony violation involving theft, fraud, false statements, immigration violations, firearms offenses, and more. The severe penalties for aggravated identity theft serve as a further deterrent when identity theft intersects with these types of serious crimes.

Penalties and Sentencing

Aggravated identity theft carries strict mandatory minimum penalties. Anyone convicted of aggravated identity theft must be sentenced to a term of imprisonment of:

• 2 years, for regular aggravated identity theft, or
• 5 years, if the predicate felony was a federal crime of terrorism

The two or five year sentence is mandatory and must run consecutively to any sentence for the predicate felony crime. So if someone is convicted of bank fraud and aggravated identity theft for using someone’s information to commit that fraud, they will serve their full sentence for bank fraud plus a mandatory consecutive 2 years added on for the aggravated identity theft conviction.

This consecutive mandatory sentencing scheme helps explain why aggravated identity theft is prosecuted aggressively. These long sentences serve as a significant deterrent.

How is it Charged?

For a prosecutor to obtain a conviction for aggravated identity theft, both the predicate felony and the aggravated identity theft must be charged. This is because the aggravated identity theft must attach to a predicate crime, so both must be included in the indictment.

For example, an indictment could charge:

• Bank fraud under 18 U.S.C. § 1344
• Aggravated identity theft under 18 U.S.C. § 1028A

This shows how the aggravated identity theft relates to the predicate felony of bank fraud. Both must be proven by the prosecutor for the aggravated identity theft conviction to stick.

How is it Proven?

To obtain a conviction for aggravated identity theft, the government must prove the following elements beyond a reasonable doubt:

1. The defendant knowingly transferred, possessed, or used a means of identification of another person without legal authority to do so
2. The defendant knew the means of identification belonged to a real person
3. The defendant did so during and in relation to a predicate felony violation

“Means of identification” is defined broadly to include names, social security numbers, credit card numbers, or anything else that can be used alone or in conjunction with other information to identify a specific person. The “knowingly” element means the government must prove the defendant knew the identification belonged to a real person, not that they knew it was illegal.
Proving that the identity theft happened “during and in relation to” the predicate felony can be the trickiest part. The identity theft must be central to the predicate crime, not just incidental. For example, lying about your identity when arrested for bank robbery likely would not qualify. The identity theft has to actually facilitate the predicate felony in some way.

Defenses

Fighting an aggravated identity theft charge revolves around attacking the elements the government must prove. Some potential defenses include:

• No intent – the defendant did not knowingly use someone else’s identification or did not know it belonged to a real person
• No predicate felony – the underlying predicate crime did not occur or cannot be proven
• No nexus – the identity theft was not sufficiently connected to the predicate felony
• Invalid predicate – the predicate felony cited is not on the list of qualifying predicate felonies
• Misidentification – the defendant is not actually the one who committed the identity theft

These defenses focus on the technical elements needed for an aggravated identity theft conviction and try to show the government cannot satisfy their burden of proof.

In addition to these technical defenses, it is critical to thoroughly investigate the facts of the case and interview witnesses. Look for inconsistencies, procedural errors, and other opportunities to undermine the government’s case. Something as simple as a witness giving contradictory statements could create enough reasonable doubt for an acquittal.

Sentencing Considerations

If convicted of aggravated identity theft, the two or five year mandatory minimum sentence must be imposed. However, under the First Step Act passed in 2018, the mandatory minimum sentence can be reduced by up to 15% with earned time credits for good behavior. This means the two year mandatory minimum can be reduced to as little as 1.7 years.

When it comes to the predicate felony conviction that runs alongside the aggravated identity theft conviction, the judge has wide discretion to impose any sentence up to the statutory maximum. The federal sentencing guidelines provide a recommended range based on the offense level and other factors. Judges are not required to follow the guidelines, but can use them as a benchmark.

The probation office will conduct a presentence investigation report prior to sentencing to determine the guidelines range that applies to the predicate felony conviction. The judge will consider this range, along with any other mitigating or aggravating factors, when determining an appropriate sentence for the predicate conviction that will run consecutive to the aggravated identity theft mandatory minimum.

How Common are Prosecutions?

Prosecutions for aggravated identity theft are steadily increasing each year. In fiscal year 2021, there were 1,601 cases filed in federal court that included aggravated identity theft charges. This number has climbed each year since 2015 when there were 1,058 cases.¹

Given the substantial penalties and increase in annual cases, it is clear that aggravated identity theft is considered a high priority for federal prosecutors. The Department of Justice aggressively charges defendants under this statute whenever identity theft intersects with major fraud schemes or other predicate felonies.

What’s the Difference from Regular Identity Theft?

The main difference between aggravated identity theft and regular identity theft comes down to the extra element of a predicate felony. Regular identity theft is when someone knowingly uses the identification of another person to commit any crime, misdemeanor or felony. Aggravated identity theft requires the added step that the identity theft facilitates a predicate felony from the list in 18 U.S.C. § 1028A(c).

This predicate felony is what makes aggravated identity theft more serious in the eyes of the law. A typical case of identity theft may result in state misdemeanor charges. But when that same identity theft facilitates serious federal felonies, now the offender is looking at a mandatory consecutive two year sentence in federal prison. It is this predication on a separate felony that “aggravates” the crime of identity theft.