Federal Aggravated Identity Theft Defense: Fighting the Mandatory Two-Year Add-On Under 18 U.S.C. § 1028A
Federal prosecutors have a reliable tool for turning a manageable fraud case into a multi-year prison sentence: aggravated identity theft.
Under 18 U.S.C. § 1028A, any defendant convicted of a qualifying predicate offense who is found to have used another person's means of identification in that offense receives a mandatory consecutive two-year prison term.
Not discretionary. Not subject to judicial balancing. Mandatory, and served on top of whatever sentence the underlying offense already carries.
A defendant convicted of wire fraud facing 18 months might walk away with 42. A tax fraud defendant expecting probation may serve a minimum of 2 years.
The charge is routinely added to federal indictments precisely because it removes the judge's ability to show leniency and dramatically increases plea pressure.
For anyone facing a § 1028A count, the defense strategy cannot treat it as an afterthought. It has to be the center of the case.
Eisner Gorin LLP is here to help you. Schedule your consultation by calling (818) 781-1570 or using the contact form here.
What Is Aggravated Identity Theft Under 18 U.S.C. § 1028A?
Under 18 U.S.C. § 1028A, it is a federal offense to intentionally transfer, possess, or use someone else's means of identification without proper legal authority, in connection with any felony specified in the law.
The government must prove four elements beyond a reasonable doubt:
- The defendant knowingly transferred, possessed, or used a means of identification.
- The identification belonged to another actual person.
- The defendant acted without lawful authority.
- The conduct occurred during and in relation to a qualifying predicate felony.
The mandatory two-year sentence runs consecutively to any other sentence imposed. The court has no discretion to run it concurrently, reduce it to less than two years, or suspend it.
A second or subsequent conviction under § 1028A carries a mandatory five-year consecutive sentence.
What Qualifies as a Predicate Offense?
The statute applies only when the identity theft occurs during and in relation to a specific list of predicate felonies enumerated in 18 U.S.C. § 1028A(c). The list is extensive and covers most white-collar and fraud offenses commonly charged in federal court.
Qualifying predicates include:
- Wire fraud under 18 U.S.C. § 1343
- Mail fraud under 18 U.S.C. § 1341
- Bank fraud under 18 U.S.C. § 1344
- Healthcare fraud under 18 U.S.C. § 1347
- Tax fraud and false returns under 26 U.S.C. § 7206
- Social Security fraud under 42 U.S.C. § 408
- Immigration document fraud under 18 U.S.C. § 1546
- Theft of public money under 18 U.S.C. § 641
Because § 1028A attaches to so many commonly charged offenses, it appears in a wide range of federal indictments, from healthcare billing fraud to pandemic relief fraud to tax evasion schemes.
What Does “During and In Relation To” Mean?
The phrase "during and in relation to" is one of the most litigated aspects of § 1028A and one of the most fertile areas for defense challenges.
The Supreme Court addressed this directly in Flores-Figueroa v. United States, 556 U.S. 646 (2009), holding that the government must prove the defendant knew the means of identification belonged to a real, actual person, not merely that a name or number was used.
The "in relation to" requirement means the identity use must have some connection to the predicate offense. Courts have held that incidental or tangential use of identifying information, not integral to the scheme itself, may not satisfy the standard.
Defense counsel can challenge whether the specific use of identification alleged by the government was sufficiently connected to the predicate offense to trigger the mandatory enhancement.
Related Federal Crimes and Sentencing Enhancements
18 U.S.C. § 1343 – Wire Fraud
Federal wire fraud involves using interstate electronic communications, such as email, phone, text, or wire transfers, to carry out a fraudulent scheme. Wire fraud is one of the most common predicate offenses used to support aggravated identity theft charges under 18 U.S.C. § 1028A.
18 U.S.C. § 1341 – Mail Fraud
Federal mail fraud prohibits using the United States mail system or commercial carriers to further fraudulent activity. Prosecutors frequently pair mail fraud allegations with aggravated identity theft charges when identifying information is used during fraudulent schemes.
18 U.S.C. § 1344 – Bank Fraud
Federal bank fraud involves schemes designed to defraud financial institutions or obtain money under false pretenses. Using another person's identifying information during bank fraud investigations may trigger mandatory sentencing enhancements under § 1028A.
18 U.S.C. § 1347 – Healthcare Fraud
Healthcare fraud involves submitting false medical claims, fraudulent billing, kickbacks, or misuse of provider information involving healthcare benefit programs. Federal prosecutors frequently add aggravated identity theft charges when provider numbers, patient information, or Medicare identifiers are involved.
26 U.S.C. § 7206 – Filing False Tax Returns
Federal tax fraud laws prohibit filing false tax returns or submitting fraudulent tax documents. Identity theft enhancements often arise in cases involving stolen taxpayer information, false dependents, or fraudulent refund claims.
18 U.S.C. § 641 – Theft of Government Funds
Federal law prohibits theft or conversion of public money, property, or government benefits. Pandemic relief, unemployment, and government benefits fraud investigations often involve both § 641 and aggravated identity theft allegations.
Frequently Asked Questions
What is aggravated identity theft under 18 U.S.C. § 1028A?
Federal aggravated identity theft occurs when someone knowingly uses, transfers, or possesses another person's means of identification during and in relation to certain qualifying federal felony offenses.
Is the two-year sentence under § 1028A mandatory?
Yes. A conviction under 18 U.S.C. § 1028A carries a mandatory consecutive two-year federal prison sentence that must be served in addition to any sentence imposed for the underlying offense.
Can a federal judge reduce the mandatory sentence?
Generally, no. Federal judges do not have discretion to shorten the mandatory two-year sentence, suspend it, or run it concurrently with the sentence for the underlying offense.
What happens if someone faces multiple aggravated identity theft counts?
Multiple aggravated identity theft charges can dramatically increase sentencing exposure. Second or subsequent convictions under § 1028A may trigger mandatory five-year consecutive prison sentences.
What crimes qualify as predicate offenses under § 1028A?
Qualifying predicate offenses commonly include wire fraud, mail fraud, bank fraud, healthcare fraud, tax fraud, Social Security fraud, immigration document fraud, and theft of government funds.
Does the government have to prove the identification belonged to a real person?
Yes. Under Flores-Figueroa v. United States, prosecutors must prove the defendant knew the means of identification belonged to an actual real person rather than a fabricated identity.
What does “during and in relation to” mean?
The government must prove the alleged use of identification was connected to and furthered the underlying predicate felony offense.
Can incidental use of identifying information trigger § 1028A?
Not necessarily. Defense counsel may argue that the identifying information was only incidental or tangential to the alleged fraud scheme rather than integral to it.
Can aggravated identity theft charges be dismissed?
Potentially. Defense attorneys may challenge the government's evidence regarding knowledge, the predicate offense, unlawful searches, or whether the identity use was sufficiently connected to the underlying crime.
Key Defense Strategies
Challenging Knowledge That the ID Belonged to a Real Person
Under Flores-Figueroa, the government must prove the defendant knew the means of identification belonged to an actual person.
In cases involving fabricated or randomly generated numbers that happen to match a real individual's information, this element is genuinely contestable.
Defendants who purchased data from third parties, used information obtained through intermediaries, or operated in contexts where the origin of identifying information was unclear may have viable knowledge challenges.
Contesting the "During and In Relation To" Element
If the identification was used in a way that was incidental to the predicate offense rather than integral to it, the enhancement may not apply.
Defense counsel should analyze whether the specific act of identity use was a necessary component of the fraud or merely peripheral to it. Stripping the § 1028A count from the indictment removes the mandatory consecutive sentence entirely.
Attacking the Predicate Offense
Because § 1028A requires a conviction on the underlying predicate, defeating or reducing the predicate charge eliminates the enhancement.
A successful challenge to the wire fraud, healthcare fraud, or tax offense count on which the § 1028A charge is built collapses the mandatory sentence along with it. Defense strategy must evaluate both charges together, not in isolation.
Plea Negotiation Leverage
Federal prosecutors frequently use § 1028A counts as bargaining chips. The mandatory nature of the sentence creates significant pressure to plead, but that same pressure can be redirected in plea negotiations.
Experienced defense counsel can leverage the government's interest in avoiding trial to negotiate the dismissal of the § 1028A count in exchange for a plea to the predicate offense, eliminating the mandatory add-on while resolving the underlying charge.
Defeating the § 1028A Enhancement in a Healthcare Fraud Case
A billing manager at a Southern California medical practice was indicted on six counts of healthcare fraud under 18 U.S.C. § 1347 and two counts of aggravated identity theft under § 1028A.
The government alleged that the defendant had submitted false claims to Medicare using the provider identification numbers of physicians who had left the practice, without their knowledge or authorization.
The § 1028A counts carried a mandatory two-year consecutive sentence on top of the healthcare fraud exposure. Defense counsel focused the challenge on two elements:
- Knowledge of real persons: The defendant's role was data entry and billing administration. Counsel presented evidence that the defendant processed claims using identification numbers stored in the practice management system without knowledge of which numbers corresponded to current or former providers. The government could not establish that the defendant knew the numbers belonged to specific real physicians rather than administrative placeholders in the system.
- In relation to analysis: Counsel argued that the use of provider numbers was a technical billing requirement and not a means by which the alleged fraud was carried out. The fraudulent element was the underlying false diagnosis coding, not the identity of the billing provider.
The government agreed to dismiss both § 1028A counts as part of a negotiated resolution. The defendant pleaded to a single reduced healthcare fraud count and received a probationary sentence with no mandatory prison term.
Why the § 1028A Count Changes Everything About Case Strategy
Most federal fraud defendants have some path to a non-custodial or reduced sentence through cooperation, acceptance of responsibility, or Guidelines mitigation.
The § 1028A count closes most of those paths. It removes judicial discretion, stacks on top of any other sentence, and cannot be reduced by good behavior calculations in the same way as discretionary sentences can.
That reality means the defense cannot approach a § 1028A case the way it would approach a standard fraud matter.
Every decision, from whether to cooperate to how to structure a plea to whether to go to trial, is shaped by the mandatory two years that sit behind every other outcome.
Identifying and attacking the enhancement from the earliest stage of representation is not optional. It is the foundation of the entire defense.
Facing Aggravated Identity Theft Charges?
Eisner Gorin LLP represents individuals charged under 18 U.S.C. § 1028A in federal courts nationwide, including complex cases where the aggravated identity theft count is layered onto healthcare fraud, wire fraud, tax offenses, and pandemic relief fraud allegations.
When a two-year mandatory sentence is attached to your case, the defense strategy has to account for it from day one. Contact our offices today for a consultation.