Federal Identity Theft Charges

The 2-Year Sentence That Gets Added to Everything

The 2-year mandatory consecutive sentence for aggravated identity theft isn’t about punishment fitting the crime. It’s a sentencing weapon. Prosecutors add identity theft charges to routine fraud cases specifically because the consecutive requirement removes all judicial discretion and automatically inflates sentences. That 2 years gets ADDED to your underlying sentence, never run concurrently. Commit wire fraud with someone else’s identity? Your 5-year wire fraud sentence becomes 7 years minimum. Multiple victims? Multiple 2-year consecutive terms that stack.

This is why 100% of aggravated identity theft defendants go to federal prison. Not 95%. Not 99%. One hundred percent. The statute was designed to guarantee incarceration regardless of circumstances, regardless of cooperation, regardless of what a judge might otherwise decide. No probation. No house arrest. No judicial discretion whatsoever.

Abraham Yusuff operated a $110 million IRS refund fraud scheme using stolen identities. He received 14 years in federal prison. The identity theft charges added years to what would have been his underlying fraud sentence. His case demonstrates how federal prosecutors use 18 USC 1028A as a multiplier, stacking mandatory consecutive terms onto other charges to build sentences that dwarf the typical punishment for financial crimes alone.

What Actually Constitutes Federal Identity Theft

Before understanding the penalties, you need to understand what the federal government considers identity theft – because the definition is broader than most people realize.

18 USC 1028 covers fraud related to identification documents. This includes:

• producing false identification documents
• transferring identification documents knowing they’ll be used fraudulently
• possessing document-making equipment with intent to produce fakes
• trafficking in authentication features used to make IDs look legitimate

The statute covers driver’s licenses, passports, Social Security cards, and any document used to verify identity.

18 USC 1028A covers aggravated identity theft – the provision with the mandatory consecutive sentence. This applies when someone uses another person’s means of identification during and in relation to certain enumerated felonies. “Means of identification” includes names, Social Security numbers, dates of birth, driver’s license numbers, passport numbers, biometric data, and electronic identification numbers.

The scope is enormous. Using someone’s name and Social Security number to open a fraudulent bank account? Identity theft. Using stolen credit card information to make purchases? Identity theft. Filing a tax return using someone else’s information? Identity theft. Creating fake documents with someone’s real information? Identity theft.

The difference between basic 1028 charges and aggravated 1028A charges often comes down to whether the identity theft occurred during another federal crime. That connection transforms the sentencing entirely – from judicial discretion to mandatory consecutive time.

The 100% Prison Rate Nobody Talks About

Heres the statistic that should stop you cold. 100% of defendants convicted of aggravated identity theft under 18 USC 1028A go to federal prison. Thats not a rounding error. Thats not “almost everyone.” Thats every single person, without exception.

Why? Becuase the statute was written to remove judicial discretion entirely. The 2-year sentence is mandatory. It runs consecutive to – not concurrent with – any other sentence. A judge cannot reduce it. A judge cannot suspend it. A judge cannot give you probation instead. The law says 2 years consecutive, and 2 years consecutive is what happens.

Compare this to other federal crimes were probation is at least theoretically possible. Drug offenses, fraud schemes, even some violent crimes have sentencing ranges were judges can exercise judgment about wheather incarceration is appropriate. Aggravated identity theft has none of that flexibility. Congress removed it deliberately.

The 97.7% conviction rate makes this worse. Federal prosecutors already only bring cases they’re confident they’ll win. When they charge aggravated identity theft, they’re not just charging you with a crime – they’re guaranteeing you prison time if convicted. The charging decision IS the sentencing decision.

And here is where the system really reveals itself. Prosecutors know this. They use aggravated identity theft charges as leverage in plea negotiations. Accept the deal or we’ll add the identity theft charges that guarantee prison. Fight the case and lose, and the mandatory consecutive time gets added automaticaly. This isnt justice – its math designed to maximize sentences and coerce pleas.

The Consecutive Sentence Trap – How 2 Years Becomes 22

OK so lets talk about what “consecutive” actualy means in practice, becuase this is were people get destroyed.

A concurrent sentence runs at the same time as another sentence. If you get 10 years for fraud and 2 years for something else concurrent, you serve 10 years total. The sentences overlap.

A consecutive sentence runs AFTER another sentence. If you get 10 years for fraud and 2 years for something else consecutive, you serve 12 years total. The sentences stack.

The aggravated identity theft statute mandates consecutive sentencing. This isn’t a judges choice. This isn’t a prosecutors recommendation. Its statutory requirement. Your 2 years gets added to whatever else your sentenced for.

Now think about how this plays out in real cases:

• Wire fraud carries up to 20 years.
• Bank fraud carries up to 30 years.
• Healthcare fraud carries up to 10 years per count.

Add aggravated identity theft to any of these, and your looking at the underlying sentence PLUS 2 years mandatory consecutive.

But it gets worse. The statute says 2 years per count. If you used multiple peoples identities, thats multiple counts. Each count adds 2 years consecutive. Used 5 different identities? Thats potentialy 10 years of mandatory consecutive time before your underlying fraud sentence even begins.

This is how relatively routine fraud cases become decades-long sentences. The identity theft charges aren’t punishing a seperate crime – they’re multiplying the punishment for the same conduct. Prosecutors add them specificaly to inflate sentences beyond what the fraud alone would justify.

I’ve seen cases where the identity theft sentences exceeded the underlying fraud sentences. Defendants sentenced to 5 years for fraud plus 6 years consecutive for identity theft. The tail wagging the dog. The enhancement bigger then the crime it enhances.

Aggravated Identity Theft – The Word “Aggravated” Dosent Mean What You Think

Heres something that catches everyone off guard. “Aggravated” identity theft dosent mean more serious or more harmful identity theft. It means identity theft committed during one of about 50 federal felonies.

Basic identity theft under 18 USC 1028 involves producing, trafficking, or possessing false identification documents. The penalties are serious but flexible – up to 15 years for the worst offenses, but judges have discretion about sentencing.

Aggravated identity theft under 18 USC 1028A is triggered when you use anothers identification during certain predicate felonies. The list includes:

• wire fraud
• bank fraud
• mail fraud
• healthcare fraud
• tax fraud
• immigration crimes
• and dozens of others

If you committed any of these crimes AND used someone elses identity in the process, your facing the mandatory 2-year consecutive sentence.

Think about what this means. The same identity theft – using the same persons information in exactly the same way – becomes “aggravated” simply becuase it occured alongside another federal crime. The identity theft itself dosent have to be more serious. It just has to be connected to a broader scheme.

This design is intentional. Congress wanted to create a sentencing enhancement that would automaticaly attach to fraud cases. The “aggravated” label makes it sound like worse conduct, but the legal reality is about connection to predicate offenses, not severity of the identity theft itself.

Prosecutors love this becuase it gives them charging flexibility. Prove the underlying fraud, prove identity was used, and the 2-year consecutive sentence follows automaticaly. No seperate proof of harm required. No showing that the identity theft was somehow “aggravated” in the normal sense of the word.

The Flores-Figueroa Defense and Its Limits

OK so here is where there is some good news – but its limited good news with significant catches.

In Flores-Figueroa v. United States, the Supreme Court held that to convict someone of aggravated identity theft, prosecutors must prove the defendant knew that the identification belonged to another actual person. This sounds obvious but has real implications.

Flores-Figueroa himself used fake Social Security and immigration documents that happened to match real peoples numbers. He didnt know the numbers belonged to real people – he thought they were fabricated. The Supreme Court said thats not aggravated identity theft becuase he didnt knowingly use anothers identity.

This creates a defense in cases where defendants used information they beleived was fictitious. Random numbers pulled from nowhere that happen to match someone. Made-up names that coincidentally exist. The knowledge requirement means prosecutors must prove you knew the identity was real.

But here is where the defense gets complicated.

First, it only applies to aggravated identity theft under 1028A. Basic identity theft under 1028 dosent require knowledge that the identity belonged to a real person. You can still be convicted of document fraud even if you thought everything was fake.

Second, proving you didnt know something is incrediby difficult. How do you demonstrate the absence of knowledge? Prosecutors will argue that anyone using identification documents should assume they’re real. The burden shifts practically even if it dosent shift legally.

Third, if there is any evidence you obtained the information from a real source – stolen data, hacked databases, purchased lists – the knowledge element becomes easy to prove. The defense works best for truly random fabrication, wich describes very few actual cases.

How Prosecutors Stack Identity Theft Charges

Here is where understanding prosecutorial tactics becomes essential for anyone facing these charges.

Prosecutors dont add identity theft charges becuase the conduct deserves seperate punishment. They add them to inflate sentences and create plea leverage. The mandatory consecutive nature of aggravated identity theft makes it the perfect sentencing enhancer.

Consider how a typical fraud case gets charged. Defendant commits wire fraud scheme causing $500,000 in losses. Guidelines suggest maybe 4-5 years. But the defendant used victim identities to open accounts, process transactions, or receive funds. Each use of each identity is potentialy a seperate count of aggravated identity theft.

Suddenly the 4-5 year fraud case has 10 identity theft counts attached. Thats 20 years of mandatory consecutive time on top of the fraud sentence. The defendant isn’t facing 5 years – they’re facing 25 years.

This is the leverage that produces plea agreements. Accept 7 years total and we’ll drop the identity theft counts. Fight the case and lose, and your looking at decades. Most defendants take the deal. Wouldnt you?

The Dubin v. United States decision in 2023 tried to limit this prosecutorial stacking. The Supreme Court held that identity use must be “at the crux” of the criminal scheme, not incidental. Using someones identity in a minor way during a fraud dosent automaticaly trigger aggravated charges.

But prosecutors adapted. They charge more carefully, focusing on cases were identity theft is central. They add more predicate offenses so each identity use clearly relates to a seperate crime. The statutory weapon got slightly less powerfull but remains extremely effective.

The Investigation Timeline and What Triggers Federal Attention

Here is what most people don’t realize about identity theft investigations. The feds dont get involved in every case. Most identity theft is handeled at the state level. But certain factors trigger federal jurisdiction and federal prosecution.

Interstate activity is the primary trigger. Identity theft that crosses state lines – victims in one state, defendant in another, transactions spanning multiple jurisdictions – becomes federal. This describes most sophisticated identity theft schemes becuase the internet makes everything interstate.

Dollar amounts matter but there is no bright line. Generally, schemes involving hundreds of thousands or millions get federal attention. Smaller schemes stay state. But organization and sophistication can trigger federal jurisdiction even for smaller amounts.

Connection to other federal crimes creates jurisdiction automaticaly. Tax fraud involving identity theft is federal. Healthcare fraud involving identity theft is federal. Bank fraud involving identity theft is federal. The underlying crime brings the identity theft into federal court.

Investigations typicaly start with victim complaints to the FTC, IRS, or financial institutions. Pattern detection identifies connected cases. Law enforcement traces transactions, subpoenas records, builds the case. By the time your contacted by federal agents, substantial investigation has already occured.

The timeline is longer then most people expect. Complex identity theft cases take months to years to investigate. Multiple agencies may be involved – FBI, IRS Criminal Investigation, Secret Service, Postal Inspection. They’re coordinating information, tracing money flows, building evidence.

The Restitution Reality

Beyond prison time, federal identity theft convictions carry mandatory restitution. This isn’t discretionary – judges must order defendants to repay victims for their losses.

But here’s the thing about identity theft restitution: it includes costs victims incured even beyond direct monetary losses. Time spent dealing with the fraud. Credit monitoring expenses. Attorney fees for identity restoration. The numbers add up fast.

And restitution dosent discharge in bankruptcy. When you complete your prison sentence, you still owe every dollar ordered. Your wages can be garnished. Your assets can be seized. The debt follows you indefinitly.

For large-scale identity theft schemes, restitution can reach into millions of dollars. Defendants who will never earn that much money still owe it. The obligation becomes a lifetime burden that survives prison, survives attempted fresh starts, survives everything.

This creates a trap where defendants face years in prison AND crushing financial obligations. Prison dosent satisfy the debt. The two run parallel – time for the crime, money for the victims. Neither substitutes for the other.

What Prosecutors Need to Prove Against You

Understanding the elements helps identify defense opportunities.

For basic identity theft under 18 USC 1028, prosecutors must prove you knowingly produced, transferred, or possessed false identification documents with intent to defraud.

For aggravated identity theft under 18 USC 1028A, prosecutors must prove:

• you used anothers means of identification
• during and in relation to a predicate felony
• and knew the identification belonged to a real person (the Flores-Figueroa requirement)

The “during and in relation to” language creates Dubin issues. Post-Dubin, the identity use must be “at the crux” of the criminal scheme. Incidental or peripheral use may not satisfy the statute. This is a developing area of law with circuit splits that create defense opportunities.

The knowledge requirement for aggravated charges is genuinly contested in some cases. If you can establish you beleived the information was fabricated, the aggravated charge may fail even if the basic charge succeeds.

Three Mistakes That Destroy Identity Theft Defenses

Mistake number one: talking to investigators without an attorney. Identity theft investigations involve extensive interviews. Agents want to understand how you obtained information, what you knew about its origin, how you used it. Everything you say helps them prove the knowledge element and connect you to predicate offenses.

Mistake number two: thinking state charges mean it’s not serious. Many identity theft cases start as state matters then escalate to federal. The same conduct that seemed managable at the state level can become mandatory consecutive prison time federaly. Don’t assume early state involvement means federal prosecutors won’t get interested later.

Mistake number three: cooperating without a cooperation agreement. Some defendants think helping the investigation will result in leniency. It might – if structured properly through formal cooperation agreements. But volunteering information without protection just builds the case against you while providing no guaranteed benefit.

The Reality You Need to Accept

Federal identity theft charges operate as sentencing multipliers. The 2-year mandatory consecutive for aggravated identity theft exists to inflate sentences beyond what underlying conduct would otherwise justify. 100% incarceration rate means everyone convicted serves prison time. 97.7% conviction rate means cases that get charged almost always result in conviction.

The Flores-Figueroa knowledge requirement provides real but limited protection. The Dubin “at the crux” standard narrows prosecutorial reach. But both defenses require evidence and careful legal work to invoke successfully.

If your facing federal identity theft charges, you need representation that understands both the statutory framework and prosecutorial tactics. The consecutive sentencing trap catches people off guard. The charging leverage that produces coerced pleas is by design. Understanding the system is the first step toward mounting an effective defense.

The statute was written to guarantee prison time. Your defense has to account for that reality from the beginning. 2 years dosent sound like much until you understand it gets added to everything else. Then the math becomes devastating.

100% incarceration rate – that’s not a statistic, that’s a design feature. Congress wanted identity theft prosecutions to result in prison every single time, and they achieved that goal. The mandatory consecutive nature ensures your sentence grows with every identity used, every count charged, every predicate offense connected. Wire fraud plus identity theft. Bank fraud plus identity theft. Tax fraud plus identity theft. The plus sign is were your freedom disappears.

If you’re under investigation or facing charges, the time to understand this system was yesterday. The time to find representation that knows how these prosecutions work is right now. The federal identity theft framework wasnt built for fairness – it was built for leverage, for plea pressure, for guaranteed prison outcomes. Your defense needs to recognize that architecture and work within it.