Aggravated identity theft under 18 U.S.C. § 1028A is a federal charge that adds a mandatory two-year prison term on top of the sentence for an underlying federal felony, usually a fraud or theft offense. It is charged when someone is accused of knowingly transferring, possessing, or using another person's means of identification during and in relation to one of the felonies the statute lists. Two Supreme Court decisions, Flores-Figueroa and Dubin, have narrowed how far prosecutors can stretch it, and those decisions are where most defenses begin.
If you have been contacted by federal agents, received a target letter, or been indicted with a § 1028A count, read the sections below on the elements and the defenses, then speak to a federal criminal defense attorney before you answer any questions.
TL;DR
- Section 1028A punishes using, possessing, or transferring another person's identifying information during and in relation to a listed federal felony, and it carries a mandatory two-year prison term (five years for the terrorism form).
- The term generally runs consecutively to the underlying sentence, probation is unavailable, and the judge may not shorten the underlying sentence to offset it.
- Under Flores-Figueroa, the government must prove you knew the identification belonged to another real person.
- Under Dubin, the identification must be at the crux of what makes the underlying conduct criminal, not just an incidental part of the transaction.
- Because the count is so punishing, challenging it early, sometimes before charges are filed, can change the whole shape of a federal case.
Table of Contents
- What the statute says
- The elements the government must prove
- The penalty: how the two years work
- How Dubin narrowed "in relation to"
- Defenses that come up in § 1028A cases
- Where § 1028A sits next to other charges
- Our perspective
- What to do if you are under investigation or charged
- How we can help
- FAQ
- Sources
What the statute says
The text of 18 U.S.C. § 1028A is short. Subsection (a)(1) applies to anyone who, during and in relation to a felony listed in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. The punishment is a term of two years in prison, added to the punishment for the underlying felony. Subsection (a)(2) is the terrorism version: five years, when the conduct happens during and in relation to a federal crime of terrorism listed in 18 U.S.C. § 2332b(g)(5)(B).
A "means of identification" borrows its definition from 18 U.S.C. § 1028. According to the Congressional Research Service, it has to be sufficient to identify a specific individual. A name combined with a Social Security number is the classic example. A made-up number that points to no one is a different question, and it matters in practice.
Three features make this statute different from an ordinary fraud enhancement:
- It is a separate offense. It is its own count with its own elements, not a sentencing adjustment a judge can weigh.
- The sentence is fixed. The judge has no discretion to go below two years on this count.
- It stacks. The sentence for the predicate felony is calculated separately, and the two are added together.
If you are mainly worried about how identity misuse interacts with tax filings, the related issue of tax identity theft and IRS filings is a separate problem from the criminal exposure discussed here, and the two can run in parallel.
The elements the government must prove
Because § 1028A is its own offense, prosecutors have to prove each piece beyond a reasonable doubt. Breaking it down shows where cases are won and lost.
A listed predicate felony
The identity conduct has to occur during and in relation to a felony on the subsection (c) list. That list covers theft and embezzlement offenses, false personation, certain firearm-statement offenses, mail, bank, and wire fraud, and a range of nationality, citizenship, passport, visa, immigration, and Social Security offenses. The Congressional Research Service describes it as covering more than 60 federal felonies.
Two practical points follow. First, the predicate must be on the list. If the underlying charge is a federal felony that does not appear in subsection (c), a § 1028A count has nothing to attach to. Second, the same CRS report explains that the government must prove the predicate as an element, but you do not have to be separately charged with or convicted of it. A person can be convicted of the § 1028A count even if the jury acquits on, or the government drops, the underlying count, so the fight over the predicate is never just a side issue.
Another person's means of identification
The identification must belong to someone else. The Flores-Figueroa decision from 2009 addressed what the government must show about the defendant's state of mind. The Supreme Court reasoned that "knowingly" ordinarily carries through to the elements that follow it in a criminal statute. The result: prosecutors must prove that you knew the means of identification belonged to another person.
That sounds technical, but it is a real dividing line. Someone who used a number believing it was invented, or believing it was their own, is in a very different position from someone who knew it was a real person's Social Security number.
Without lawful authority
The use must be without lawful authority. This is less simple than it looks. According to the CRS discussion of the statute, permission from the identification's owner does not necessarily mean the use was lawful. Cases involving a relative who handed over a number, or an employee who was given access to records, turn on the facts and the case law of the particular federal circuit.
During and in relation to the predicate
This is the element the Supreme Court reshaped in 2023, and it gets its own section below.
The penalty: how the two years work
The statute itself sets the consequences, and they are rigid:
- Two years mandatory for the ordinary offense, five years for the terrorism form.
- Generally consecutive to the sentence for the underlying felony.
- No probation on the § 1028A count.
- No offsetting reduction. A court may not lower the sentence for the underlying felony to compensate for the added term.
Here is a worked example of the arithmetic, using hypothetical numbers only. Suppose a judge calculates a 12-month sentence for a wire fraud count. With a § 1028A conviction, the total becomes at least 36 months, because the two years are added to the 12. Without that count, a person with a clean record might hope for a sentence far below 36 months, or even a probationary outcome on a lower-level fraud case. That gap is why prosecutors add this count and why it is often used as leverage in plea discussions.
The practical consequence is that the § 1028A count is frequently the most important number in the case. Defense work often centers on getting the count dismissed, narrowed, or traded away.
How Dubin narrowed "in relation to"
Before 2023, many prosecutors read the statute very broadly: if you used someone's name or number anywhere in the course of a fraud, the count applied. In Dubin v. United States, 599 U.S. 110 (2023), the Supreme Court rejected that reading. A defendant uses another person's means of identification "in relation to" a predicate offense only when the use is at the crux of what makes the conduct criminal.
The case arose from a billing dispute in which a patient's identifying information appeared on a claim for services. The patient's identity was not what made the billing misleading; the overstated nature of the services was. The Court held that merely using identifying information in a way that facilitates the offense is not automatically enough.
For fraud and deceit offenses, the Court's opinion explains that the identification must be used in a fraudulent or deceptive manner, and cannot be a mere ancillary feature of an otherwise fraudulent transaction. The CRS summary puts it in plain terms: the misuse must be a player rather than a bystander in the predicate offense.
What this means for a real case
The Dubin test pushes the questions toward the facts:
- Was the identity the thing that made the statement false, as when someone applies for credit in another person's name?
- Or was the identity incidental, as when a real person's information appears in a record but the lie lies elsewhere, such as in the description of the service or the amount billed?
- Does the government's own theory of fraud depend on impersonation, or on something else?
Cases built on the second pattern are the ones where the count becomes vulnerable. Indictments drafted before 2023 sometimes rest on the older, broader theory, and those are worth a close reading.
Defenses that come up in § 1028A cases
The CRS report identifies the main legal issues that arise. Here is how they translate into questions a defense lawyer asks on day one.
- Is the predicate on the list? If the underlying felony is not enumerated in subsection (c), the count fails as a matter of law.
- Does the identification belong to a real person? Numbers that do not match any actual individual raise a different analysis from those that do.
- Did you know that? Under Flores-Figueroa, knowledge that the identification belonged to another person is an element, and the government must prove it with evidence, not assume it.
- Was the use without lawful authority? Consent is relevant, but the CRS notes it does not automatically settle the question.
- Was the identity misuse at the crux of the predicate? This is the Dubin question, and it is often the strongest argument in billing, payroll, and records cases.
- How was the evidence obtained? Search warrants for phones, computers, and email accounts are central in identity cases. A constitutional challenge to a search can remove the very records the government needs to show how a number was used.
Notice what is not on the list: arguing that no one was hurt, or that the money was repaid. Those facts can matter for sentencing on the underlying offense, but they do not remove the mandatory two years if the elements are met. That is why the legal elements deserve most of the early attention.
Where § 1028A sits next to other charges
Aggravated identity theft rarely appears alone. It travels with fraud counts, and defense strategy has to treat the counts together. If your case involves electronic communications used in a scheme, the guide on wire fraud defenses covers the predicate that most often accompanies this charge. If it involves access devices, such as stolen card numbers, the federal statute on 18 U.S.C. § 1029 is a frequent companion.
State charges can overlap too. California's identity theft statute is covered on our page about PC 530.5 identity theft. A person can face state and federal exposure from related conduct, and which system takes the case affects everything from bail to sentencing. That is a decision best handled by a lawyer who works in both.
Our perspective
We see the same pattern in federal identity cases: the mandatory two years drives everything. Clients often arrive thinking the fraud count is the main danger. Then they learn that § 1028A can add a fixed prison term that a judge cannot shorten, and the case looks very different.
Our approach rests on being in court often and knowing how local judges and prosecutors actually handle their cases. In an identity case, that means reading the indictment against Dubin and Flores-Figueroa from the first day, asking whether the government can truly prove that the identity was central to the offense and that our client knew it belonged to a real person.
It also means looking at how the evidence was gathered. Constitutional search and seizure challenges are one of our core tools, and in a case built on digital records they can reshape what the prosecution is able to show.
And where a case has not yet been filed, we can act before charging decisions are final. Pre-file intervention gives us a chance to put the legal problems with the § 1028A theory in front of the decision makers, rather than waiting to litigate them after an indictment.
If you think you are under investigation, do not try to explain things to agents on your own. Call us first.
Jake
What to do if you are under investigation or charged
The steps below apply to anyone who learns that federal agents are looking at identity-related conduct.
- Do not give a statement without counsel. Agents may describe an interview as informal. Anything you say can become evidence of knowledge, which is exactly the element Flores-Figueroa makes the government prove.
- Do not delete anything. Destroying records can create separate federal exposure, such as under 18 U.S.C. § 1519.
- Keep paperwork. Gather any letter, subpoena, warrant, or target notice you received, and write down the date and who contacted you.
- Ask for a review of the predicate felony. Your lawyer should identify which listed felony the government relies on and whether the facts fit it.
- Raise the search issues early. Warrants for devices and accounts should be examined before any plea discussion.
How we can help
Rubin Law, P.C. defends clients in Los Angeles who are arrested, charged, or under investigation, including in federal fraud and identity matters. Our work includes courtroom advocacy, constitutional challenges to searches and seizures, and pre-file intervention for people who know an investigation is underway but have not yet been charged. Fee arrangements are discussed in the consultation, and we do not publish a price list.
You can see the range of cases we handle on our criminal defense page, or reach us through the Rubin Law, P.C. website to talk through your situation.
FAQ
Is the two-year sentence under 1028A really mandatory?
Yes, on a conviction for the ordinary offense. The statute sets a two-year term, makes it generally consecutive to the underlying sentence, bars probation on that count, and prevents the court from reducing the underlying sentence to offset it. The main way to avoid it is to defeat or resolve the count itself.
Can I be convicted of 1028A if I am not convicted of the underlying felony?
Possibly. According to the Congressional Research Service, the government must prove the predicate felony as an element, but you need not be separately charged with or convicted of it. That is why the facts behind the predicate still matter in every case.
Does it matter that I did not know the identity belonged to a real person?
It matters a great deal. In Flores-Figueroa v. United States, the Supreme Court held that the government must prove you knew the means of identification belonged to another person. Whether it can prove that depends on the evidence in your particular case.
What did Dubin change?
Dubin limited the "in relation to" element. The use of someone's identification must be at the crux of what makes the underlying conduct criminal, and merely facilitating the offense is not automatically enough. Counts drafted under the older, broader view are often open to challenge.
Is there a five-year version?
Yes. Subsection (a)(2) provides a five-year term when the conduct occurs during and in relation to a federal crime of terrorism listed in 18 U.S.C. § 2332b(g)(5)(B). Most identity cases involve the ordinary two-year form.
Sources
- 18 U.S.C. § 1028A: Aggravated identity theft
- Flores-Figueroa v. United States, 556 U.S. 646 (2009)
- Dubin v. United States, 599 U.S. 110 (2023), slip opinion
- Dubin v. United States, opinion of the Court (U.S. Reports)
- Congressional Research Service: Mandatory Minimum Sentencing, Federal Aggravated Identity Theft