Federal Identity Theft
Aggravated identity theft under 18 U.S.C. section 1028A carries a mandatory two-year consecutive sentence. That means two years on top of whatever sentence the defendant receives for the underlying offense. The sentence cannot be probated, cannot run concurrently, and cannot be reduced below two years.
The underlying offense is usually fraud: wire fraud, bank fraud, healthcare fraud, or tax fraud. The identity-theft charge stacks on top.
What the State must prove
The government must prove that the defendant knowingly used, without lawful authority, a means of identification of another person during and in relation to a predicate felony. “Means of identification” includes names, Social Security numbers, dates of birth, driver’s license numbers, and financial account numbers.
The Supreme Court held in Flores-Figueroa v. United States that the government must prove the defendant knew the identification belonged to a real person. Using a fabricated Social Security number that happens to belong to someone is not aggravated identity theft unless the defendant knew it was a real person’s number.
Defense
The knowledge requirement is the primary defense lever. Did the defendant know the identification belonged to a real person? Was the use of the identification authorized? Was the defendant aware that identification was being used at all, or was someone else responsible for the paperwork?
Because the two-year mandatory consecutive sentence makes aggravated identity theft a powerful sentencing enhancer, the government often uses it as leverage in plea negotiations. The decision whether to plead or fight the identity-theft count is a strategic calculation that depends on the strength of the knowledge evidence.
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If you have been convicted and need an appeal, email us at [email protected].