Federal Identity Theft

If you or a family member has been charged with federal identity theft, the most important thing to understand is that there are two different laws. Identity theft under 18 U.S.C. § 1028 carries a range of possible sentences. Aggravated identity theft under 18 U.S.C. § 1028A carries a mandatory two-year prison term added on top of any other sentence. Here is how each law works and what a conviction can mean.

Federal prosecutors have brought more identity theft cases in recent years. One reason is that it has become easy for people and criminal groups to get other people's personal data and misuse it for their own gain; the internet and smartphones make these cases more common than ever. Because the government is taking a strong stance, take any identity theft charge against you or a family member very seriously, and talk with a federal criminal defense lawyer early.

What counts as federal identity theft?

Most people think of identity theft as getting and misusing another person's personal or financial information to make money. For example, someone might get credit card numbers by fraud and use them to make purchases the cardholder never approved. Or someone might use another person's Social Security number to open a line of credit and borrow money in that person's name.

A federal prosecutor is more likely to take the case when a large amount of money is involved. The victim of identity theft is usually not hurt physically, but the financial harm can be serious enough that the government treats these crimes as a priority.

What does the main identity theft law, 18 U.S.C. § 1028, say?

Congress passed the Identity Theft and Assumption Deterrence Act in 1998. The law is now found at 18 U.S.C. § 1028(a)(7). It makes it a crime when a person "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law."

A "means of identification" is any name or number that can be used to identify a specific person. The law lists examples like a name, Social Security number, date of birth, and driver's license number (18 U.S.C. § 1028(d)(7)).

The maximum sentence under § 1028 depends on the facts. Common examples under 18 U.S.C. § 1028(b):

• Up to 5 years in most cases.
• Up to 15 years if the person got $1,000 or more in value in any one-year period.
• Up to 20 years if it was connected to drug trafficking or a violent crime, or the person had a prior conviction under this law.
• Up to 30 years if it was connected to terrorism.

These are maximums, not automatic sentences. The actual sentence usually depends heavily on the federal sentencing guidelines and the facts of the case.

What is aggravated identity theft?

Congress passed a second identity theft law in 2004. Found at 18 U.S.C. § 1028A, it covers the crime of aggravated identity theft, and it is the identity theft law federal prosecutors cite most often.

Aggravated identity theft happens when a person "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" during and in relation to another crime. It does not apply to every federal crime, though. It applies only to the felonies listed in 18 U.S.C. § 1028A(c), a list that includes mail fraud, wire fraud, bank fraud, and many others. A separate part of the law covers terrorism-related felonies (18 U.S.C. § 1028A(a)(2)).

This law is harsher than the 1998 law. A conviction carries a mandatory two-year prison term, or five years if it is tied to terrorism. "Mandatory" means the judge has no choice. The judge also cannot give probation. And the two years must run consecutively, meaning they are added on after the sentence for the other crime, not served at the same time (18 U.S.C. § 1028A(b)).

Why is an aggravated identity theft charge so serious?

Two points are key. First, aggravated identity theft is tied to another crime, called the underlying or "predicate" offense, which must be one of the listed felonies. Second, the government must show you used the other person's identifying information during and in relation to that crime.

That structure is what makes the add-on sentence so hard on people who are convicted. In a typical case, the person gets a sentence for the predicate crime, and then the extra two years for aggravated identity theft are stacked on top of it.

The law also says the judge cannot shorten the sentence for the predicate crime to make up for the extra two years (18 U.S.C. § 1028A(b)(3)). So there is very little room to argue for a lower total sentence once you are convicted. That is why the defense strategy before trial or a plea matters so much.

There is one area where the judge has some flexibility. If you are convicted of more than one § 1028A count at the same time, the judge may let those § 1028A terms run together with each other. They still cannot run together with any other sentence (18 U.S.C. § 1028A(b)(4)).

It is also why prosecutors often add a § 1028A count: it can put pressure on you to plead guilty.

Has the Supreme Court limited aggravated identity theft?

Yes. In Dubin v. United States (2023), the Supreme Court held that § 1028A applies only when the use of the other person's identity is at the crux of what makes the conduct criminal. It is not enough that a name or ID number simply appeared somewhere in a billing or payment process.

If you face a § 1028A count, whether your case fits that rule is one of the first questions to ask your lawyer.

Read Dubin v. United States (2023)

What else can happen after a conviction?

Identity theft is usually charged together with a fraud crime. In most fraud cases, the judge must order restitution, which means paying back the victims' losses (18 U.S.C. § 3663A).

Why talk with a lawyer early?

Federal identity theft charges are serious, especially when they include aggravated identity theft, and a conviction can change your life. Start preparing a defense right away. If you have already been convicted, a lawyer can look at whether you have grounds for an appeal.

What should you do next?

Book a consultation to talk it through with Brandon Sample.

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