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Last Updated on: 19th October 2023, 12:29 pm
Identity theft can be a scary crime that leaves victims feeling violated and exposed. In its most basic form, identity theft involves using someone else’s personal information without their consent to commit fraud or other crimes. The United States government takes identity theft very seriously and has passed laws to address it at the federal level.
One of the most serious identity theft crimes is known as aggravated identity theft. This article will take an in-depth look at federal aggravated identity theft – what it is, how it works, penalties, defenses, and more.
Aggravated identity theft is defined in 18 U.S. Code § 1028A. In summary, it occurs when someone knowingly transfers, possesses, or uses the means of identification of another person without lawful authority during and in relation to the commission of certain felony crimes.
There are a few key aspects of aggravated identity theft:
The underlying felonies that can trigger an aggravated identity theft charge include crimes like theft, fraud, immigration violations, firearm offenses, and many others. There is a specific list of qualifying predicate felonies in the statute.
For example, if someone commits mail fraud and uses another person’s name and Social Security number on fraudulent documents furthering the mail fraud scheme, they may be charged with aggravated identity theft on top of mail fraud charges.
Aggravated identity theft carries strict mandatory minimum penalties. Under 18 U.S. Code § 1028A(a)(1), the mandatory minimum sentence is 2 years in prison. The mandatory minimum is increased to 5 years in prison if the aggravated identity theft relates to a terrorism offense.
These mandatory minimums are significant because there is no possibility of reducing the sentence – judges have no discretion to lower the sentence below the mandatory minimum. The two or five year sentence also cannot run concurrently with any other sentence imposed for the predicate felony.
For example, if someone is convicted of bank fraud (with a sentencing range of 0-30 years) and aggravated identity theft related to that bank fraud, the judge must sentence them to at least two years in prison for the aggravated identity theft consecutive to (in addition to) whatever sentence is imposed for the bank fraud.
The mandatory nature of aggravated identity theft sentencing has been challenged but generally upheld by courts, including the Supreme Court.
Fighting aggravated identity theft charges involves attacking the specific elements the government must prove:
Some potential defenses include:
The Supreme Court recently limited the scope of aggravated identity theft charges in Dubin v. United States. The court ruled that the identity theft must be central to carrying out the underlying felony, not just an incidental method of committing it. This raises the bar for prosecutors to prove the identity theft was sufficiently tied to the predicate felony.
Here are some real-world examples of aggravated identity theft charges and prosecutions:
These cases illustrate how aggravated identity theft charges often arise in connection with broader fraud schemes exploiting stolen personal information.
For individuals, some tips to help prevent identity theft include:
For policymakers, potential ways to combat aggravated identity theft include:
A combination of public vigilance, private sector safeguards, and government policy has the best chance at reducing aggravated identity theft and its impacts.
Aggravated identity theft is a serious federal crime that occurs when someone knowingly uses another person’s identity without authorization during and in relation to a predicate felony offense. It carries strict mandatory minimum sentences of 2-5 years in prison on top of penalties for the underlying felony. Defending against aggravated identity theft charges requires attacking the specific elements the government must prove. Prevention is key to reducing the prevalence of aggravated identity theft through a combination of individual vigilance, private sector data security measures, and public policy focused on deterrence, enforcement, and education.
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