Aggravated Identity Theft: Federal Crimes and Mandatory Punishments

The basic federal felony criminal statute defining “identity theft” has been on the books for over twenty-five years, but it didn’t take long for lawmakers to decide it wasn’t enough.  A new and more serious criminal charge was argued as necessary within six years of its passage.  The result was Congress enacting the 2004 Identity Theft Penalty Enhancement Act, which amends 18 USC § 1028 by creating a new federal crime of “aggravated identity theft,” as defined in 18 USC § 1028A.

From a criminal defense lawyer’s standpoint, this means that people can be charged for “general identity theft” or the enhanced “aggravated identity theft” as two separate crimes in federal court.  (In reality, most cases come under the newer statute today.)  And these allegations will both be independent of any identity theft charges that might be brought under state law.  Texas, for instance, has its own series of identity theft criminal laws with their own felony punishments upon conviction.  Read, Fraudulent Use or Possession Charges in Texas: Identity Theft and Fake Credit Cards.

What is Identity Theft?

Essentially, identity theft involves the illegal use of someone else’s personal information, such as their name; birthdate; Social Security number; driver’s license number; passwords; bank account numbers; or credit card numbers.

Congress has officially provided a definition of “identity theft” in 18 USC § 1028(a)(7).  According to federal law, “identity theft” involves someone who:

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….

In sum, it is a federal crime to use the identifying information of another in connection with (1) any federal crime or (2) any state or local felony.  This means that the federal prosecutor is not going to pursue the identity theft charge unless there is also sufficient evidence of other crimes that can be brought against the defendant.  In legalese, identity theft needs a “predicate offense.”

Accordingly, criminal defense lawyers who are representing people facing federal identity theft charges are dealing with cases that are complex because there is going to be a prosecutorial dance involving as many different criminal charges as the law enforcement investigation can support.

Predicate Offenses

Lots of serious felonies can be included in these cases, from theft of public money or property, or from employee benefit plans; embezzlement by a bank officer or employee; making false statements to acquire a weapon/firearm; and fraud involving all sorts of things, from Social Security benefits or customer information, to wire fraud; mail fraud; or bank fraud; as well as violating laws pertaining to nationality, passports, visas, citizenship, deportation; and other immigration offenses.

Specifically, under 18 USC § 1028(c) these are statutorily identified to involve:

(1) section 641 (relating to theft of public money, property, or rewards [1]), section 656 (relating to theft, embezzlement, or misapplication by bank officer or employee), or section 664 (relating to theft from employee benefit plans);

(2) section 911 (relating to false personation of citizenship);

(3) section 922(a)(6) (relating to false statements in connection with the acquisition of a firearm);

(4) any provision contained in this chapter (relating to fraud and false statements), other than this section or section 1028(a)(7);

(5) any provision contained in chapter 63 (relating to mail, bank, and wire fraud);

(6) any provision contained in chapter 69 (relating to nationality and citizenship);

(7) any provision contained in chapter 75 (relating to passports and visas);

(8) section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. 6823) (relating to obtaining customer information by false pretenses);

(9) section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. 1253 and 1306) (relating to willfully failing to leave the United States after deportation and creating a counterfeit alien registration card);

(10) any provision contained in chapter 8 of title II of the Immigration and Nationality Act (8 U.S.C. 1321 et seq.) (relating to various immigration offenses); or

(11) section 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act (42 U.S.C. 408, 1011, 1307(b), 1320a–7b(a), and 1383a) (relating to false statements relating to programs under the Act). 

SCOTUS 2023 in Dubin: Defense Wins Limited Reading of the Statute

Last year, things changed for both prosecutors and federal criminal defense attorneys regarding “aggravated identity theft” charges when the Supreme Court of the United States (SCOTUS) released its opinion in Dubin v. United States, 599 U.S. 110, 143 S. Ct. 1557, 216 L. Ed. 2d 136 (2023) (“Dubin”).

Prosecutors had been reading the aggravated identity theft statute as broadly allowing them to add two years of prison to sentences under its provisions.  SCOTUS unanimously ruled this was wrong, and that the government’s interpretation of the federal law was overly broad.  Read, “Supreme Court Narrows the Reach of an Aggravated Identity Theft Law,” written by Charlie Savage and published by The New York Times on June 8, 2023.

Dubin details: Medicaid health care fraud charges combined with aggravated identity theft

Dubin is a health care fraud case where David Dubin and his father ran a psychological services company.  The company billed Medicaid for testing done by a licensed psychologist, but the claim that was filed “…overstated the qualifications of the employee who actually performed the testing and who was only a licensed psychological associate. This falsehood inflated the amount of reimbursement. Petitioner also changed the date on which the examination occurred. Even with the inflation, the total reimbursement was only $338. App. 49. Petitioner was accordingly charged with healthcare fraud, a federal offense under 18 U.S.C. § 1347. According to the Government, however, petitioner’s conduct also constituted “[a]ggravated identity theft” under § 1028A(a)(1).” Dubin at 1563.

David Dubin was arrested, charged, and convicted of federal health care fraud as the managing partner of that company.  He was also charged and convicted of aggravated identity theft.  This came with an independent punishment of 2 years imprisonment.  Dubin appealed, and the case went to the Fifth Circuit Court of Appeals and then to SCOTUS for legal determinations of the government’s reading of the aggravated identity theft sentencing provisions.

The AUSA argued that since managing partner David Dubin used the patient’s identity in committing the fraud on Medicaid, then he also violated 18 USC § 1028A which includes the language that anyone who, “during and in relation to” certain predicate offenses, “knowingly transfers, possesses, or uses without lawful authority, a means of identification of another person.”  The government’s reading was that “[a] defendant uses a means of identification ‘in relation to’ a predicate offense if the use of that means of identification ‘facilitates or furthers’ the predicate offense in some way.”

Dubin countered by stating that the law only “covers misrepresenting who received a certain service,” … “not fraudulent claims regarding how or when a service was performed.”

SCOTUS Unanimous Decision

Justice Sotomayor wrote the unanimous opinion.  SCOTUS ruled for the defense in strong words (citations omitted)(emphasis added), Dubin at 1564:

This type of prosecution is not uncommon. The Government has, by its own admission, wielded § 1028A(a)(1) well beyond ordinary understandings of identity theft. … One prosecution targeted a defendant who “made a counterfeit handgun permit” for another person, using that person’s real name and at that person’s request.  Another involved unlicensed doctors who violated the law by “issu[ing] prescriptions that their [actual] patients would then fill at… pharmacies.”  There was also a prosecution involving an ambulance service inflating its reimbursement rates by “mischaracteriz[ing] the nature of the transports, saying that the patients had required stretchers when they had not.” Yet another prosecution involved a defendant who “provided massage services to patients to treat their pain,” but improperly billed this “as a Medicare-eligible physical therapy service.” 

Many lower courts have responded to such prosecutions with more restrained readings of the aggravated identity theft statute. The Fifth Circuit did not. To resolve the conflict in the courts below, this Court granted certiorari, 598 U. S. ___, 143 S.Ct. 416, 214 L.Ed.2d 231 (2022), and now vacates the judgment of the Fifth Circuit and remands.

Of note, Justice Gorsuch notes that the viewpoint of the prosecution to the language of the criminal statute turns us all into criminals, starting his concurrence with the sentence, “Whoever among you is not an “aggravated identity thief,” let him cast the first stone.”  Dubin at 1574.

Defenses Against Charges

Today, federal criminal defense lawyers advocating for people charged with aggravated identity theft will also be dealing with other charges that may involve serious federal felonies such as violations of credit card fraud (18 U.S.C. § 1029); computer fraud (18 U.S.C. § 1030); mail fraud (18 U.S.C. § 1341); wire fraud (18 U.S.C. § 1343); or financial institution fraud (18 U.S.C. § 1344).  These cases, upon conviction and application of the federal sentencing guidelines, can carry serious punishments involving not only fines and forfeiture of property but decades of life in prison (as much as 30 years).

• For details, read: Things to Know about Wire Fraud Today: It’s a Big Deal; 10 Things to Know About Mail Fraud Prosecutions; 5 Things to Know About Money Laundering in Texas; Arrested for Bank Fraud in Texas; and Federal Financial Instrument Fraud: Felony Credit Card Crimes.

The defense attorney will be building defense strategies involving every single count of the indictment.  Defenses must include both a factual investigation as well as a legal analysis, with possible defense arguments against the aggravated identity theft charges to include:

• Government’s Burden: each piece of evidence in the federal case must be evaluated meticulously. How was it found, how was it collected, and how is it being presented as part of the government’s case?  Are there hearsay issues?  Was there an improper search and seizure? And is the government following current law – are they abiding by the SCOTUS ruling in Dubin?
• Connecting the Offenses: Since there must be a predicate offense in order to the aggravated identity theft charge to stand, then there may be defense arguments that there is no relationship to the other felonies in the indictment.
• Lack of intent: the statute mandates that the person “knowingly use” the other person’s identifying information.  The burden is upon the AUSA to do so.  Has this been done?  Has it been done with authenticated and admissible evidence, or can some/all of it be excluded in violation of due process protections, etc.?  And is there a defense argument here:  Can the defense prove up that the defendant was not aware that the information belonged to someone else?
• Alibi or Mistaken Identity: Is there evidence that the person charged with this crime has been wrongfully accused, and was not the person who used the personal information of another?

To learn more, read:

• Why You May Need a Federal Criminal Defense Lawyer in Texas;
• How Arrests Happen: From Investigation to Arraignment, Being Charged for a Federal Crime;
• The Federal Criminal Justice System: After Arrest, From Arraignment to Sentencing; and
• Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview.

Punishment: Mandatory Minimum Sentence Under Federal Law

One of the key considerations with both federal criminal statutes for identity theft is the punishment range they provide.  Convictions for either general or aggravated identity theft come with the same maximum penalties as defined within the law.  This sentence must be served consecutively to any other sentence.

And any federal Aggravated Identity Theft conviction comes with the sentencing whammy of mandatory minimum sentences.  Should the Aggravated Identity Theft offense be found to be connected to an act of terrorism, there is a mandatory minimum sentence of five (5) years imprisonment.  Otherwise, Aggravated Identity Theft convictions come with a mandatory minimum sentence of two (2) years behind bars in a federal facility.

For more on mandatory minimum sentences, read our earlier discussions in Mandatory Minimum Penalties in Federal Sentencing and Less Time for Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.

As for length of sentences upon conviction for Aggravated Identity Theft cases, in August 2024 the United States Sentencing Commission released its Quick Facts Information for Aggravated Identity Theft that revealed for this crime:

• 7% of individuals convicted under section 1028A were also convicted of another offense.
• 1% of individuals convicted under section 1028A were sentenced to prison; their average sentence was 51 months.
• The average sentence for individuals convicted only under section 1028A was 24 months.
• The average sentence for individuals convicted of both a section 1028A offense and another offense was 54 months.
• The average sentence for individuals convicted under multiple counts of section 1028A was 72 months.

Moreover, regarding application of the Sentencing Guidelines, the USSC reports: of all individuals with a conviction only under section 1028A were sentenced under the Guidelines Manual: (1) 93.8% were sentenced within the guideline range; (2) 6.2% received a substantial assistance departure; and (3) their average sentence reduction was 58.3%.

Of importance, the USSC also reveals that things are getting more serious, with USSC data showing that: the average sentence imposed was 47 months in fiscal year 2019 and 51 months in fiscal year 2023.

For more on the USSG (including examples of calculations using the Sentencing Tables), see:

• Money Laundering and Federal Sentencing Guidelines;
• Federal Sentencing Guidelines On Federal Child Pornography Cases;
• Federal Crimes and Sentencing Guidelines: Health Care Fraud; and
• Methamphetamine Trafficking and Federal Sentencing.

Probation can be argued, of course.  A zealous defense lawyer will work to find arguments and facts to support probation in the past criminal history of the defendant as well as the circumstances of the particular case.

There is also the impact of the First Step Act.  For non-violent offenders, the law provides a potential 54 days of credit for each year served in a federal sentence (note that terrorism-related identity theft convictions do not apply here).  For more, read: Time Credits and Freedom from Federal Prison: Is the Justice Department Thwarting Early Release for Inmates Under the First Step Act?

Defense Attorneys for Federal Aggravated Identity Theft Charges

These cases arise out of all sorts of circumstances.  Aggravated identity theft can be based upon government evidence of things like spam e-mail messages or other hacking where lots of personal information is stolen, to someone looking over the shoulder of a person who is shopping online as they input their credit card number.  These charges will be tagged alongside more serious crimes, like wire fraud, mail fraud, etc.

Experienced federal criminal defense lawyers recognize that AUSAs want to charge as Aggravated Identity Theft because the crime comes with more severe penalties.  Convictions come with a mandatory minimum 2 years in a federal prison and this time has to be served consecutively to any other sentence (not concurrently or overlapping).

Having an experienced federal criminal defense lawyer is important in these types of cases.  They are complicated, and negotiations with the AUSA will be vital at every stage.  Plea bargaining may achieve lesser charges; reduced charges; lighter sentences; and more.  Aggressive defense strategies may get some of the evidence (documents or testimony) ruled inadmissible and excluded.  Sentencing hearings can be key here, with defense presentations of mitigating circumstances that can help lessen the severity of punishment.

See:

• USSC Limits (But Does Not End) Use of Acquitted Conduct in Federal Sentencing
• Categorical Approach: Longer Federal Sentences With Past Convictions
• When Someone Becomes a “Career Offender” under Federal Law
• Punishing Defendants for Exercising Their Right to Trial.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article,” Pre-Arrest Criminal Investigations.”