Aggravated Identity Theft Defense Lawyers in Texas

Federal identity theft charges are increasingly common in the Northern District of Texas, and they carry consequences that extend far beyond the identity theft offense itself. The most dangerous charge is aggravated identity theft under 18 U.S.C. §1028A, which adds a mandatory 2-year consecutive sentence to any underlying federal felony. This sentence is stacked on top of whatever sentence the defendant receives for the primary offense. It cannot run concurrently, cannot be reduced by any sentencing factor, and cannot be avoided unless the government agrees to drop the count or the charge is successfully challenged.

This sentencing structure makes aggravated identity theft one of the most powerful prosecutorial tools in the federal system. At Deandra Grant Law, Of Counsel James Lee Bright leads our federal identity theft defense. Lee’s 25+ years of federal trial experience give him a deep understanding of how prosecutors use aggravated identity theft as leverage and how to counter that strategy.

Federal Identity Theft Statutes

18 U.S.C. §1028 — Identity Fraud.  Covers production, transfer, or use of false identification documents and means of identification. Penalties range from 5 to 25 years depending on the specific conduct and whether terrorism, drug trafficking, or other aggravating circumstances are involved.

18 U.S.C. §1028A — Aggravated Identity Theft.  Mandatory 2-year consecutive sentence added to the sentence for any specified predicate felony; 5 years if the predicate involves terrorism. The Supreme Court’s decision in Dubin v. United States, 599 U.S. 110 (2023), significantly narrowed this statute by requiring that the use of another’s identity be “at the crux” of what makes the conduct criminal and not merely incidental to it.

18 U.S.C. §1029 — Access Device Fraud.  Credit and debit card fraud, counterfeit or stolen access devices, unauthorized account access. 10 to 20 years depending on the offense.

18 U.S.C. §1030 — Computer Fraud and Abuse Act (CFAA).  Frequently charged alongside identity theft when computer intrusion was used to obtain personal information. Penalties range from 1 to 20 years depending on the type of access and the harm caused.

How Federal Identity Theft Cases Arise

• Financial fraud schemes — using stolen information to open credit accounts, file fraudulent tax returns, obtain loans, or make unauthorized purchases
• Healthcare fraud — using patient identities for fraudulent insurance claims or to obtain controlled substances
• Immigration-related offenses — using another person’s Social Security number for employment authorization
• Data breach cases — obtaining personal information through computer intrusion under the CFAA
• Drug trafficking — using false identities for properties, bank accounts, or communications devices associated with a trafficking operation
• Tax fraud — filing fraudulent returns using stolen Social Security numbers

How We Challenge the Government’s Evidence

The Knowledge Requirement

Both §1028 and §1028A require proof that the defendant knowingly used the means of identification of another real person. A defendant who used a fabricated Social Security number without knowing it belonged to a real person has not committed aggravated identity theft under §1028A. Lee examines the government’s evidence of knowledge carefully particularly in cases where the defendant obtained numbers or account credentials from a third party and had no way of knowing whose information they were using.

Digital Evidence and Device Attribution

Identity theft cases are built on digital evidence. Lee works with forensic experts to evaluate whether devices were properly imaged and the forensic examination followed validated protocols, whether the government can prove the defendant used a specific device or account rather than someone else who had access to it, whether IP address evidence is being misused to identify a person (an IP address identifies a connection, not necessarily an individual), whether malware or unauthorized access by a third party could explain how the information was used, and whether the chain of custody for digital evidence preserves its integrity.

The Dubin Standard: “At the Crux”

In Dubin v. United States, 599 U.S. 110 (2023), the Supreme Court significantly narrowed aggravated identity theft by holding that the use of another’s means of identification must be “at the crux of what makes the conduct criminal” and not merely an incidental aspect of a broader scheme. Before Dubin, prosecutors routinely charged §1028A in any case where a victim’s identifying information appeared anywhere in the alleged fraud. After Dubin, the charge requires a closer connection between the identity use and the criminality.

For example, a healthcare fraud case where the defendant submitted claims using a patient’s Medicare number presents a closer Dubin question than a case where the patient’s name appeared on a document that was only peripherally related to the fraud. Lee evaluates every case against the Dubin standard to determine whether the §1028A charge is legally supported and challenges it when it is not.

Challenging the Underlying Felony

Aggravated identity theft is a derivative charge. It requires a specified predicate felony. If the underlying charge falls through suppression, acquittal, or successful challenge to the evidence, the §1028A charge falls with it. Lee develops defense strategy that addresses both charges as an integrated whole rather than treating the identity theft count as an afterthought to the primary offense.

Federal Sentencing: The Consecutive Sentence Problem

The mandatory 2-year consecutive sentence under §1028A gives prosecutors enormous leverage in plea negotiations. A defendant facing 3 years on a primary fraud count and 2 additional mandatory years on the identity theft count is effectively looking at a combined sentence range that makes trial risk much higher. Prosecutors use this leverage to extract cooperation, guilty pleas on terms favorable to the government, or both.

Lee understands this dynamic and develops defense strategies that address the leverage imbalance directly: challenging the legal sufficiency of the charge under §1028A and the “at the crux” standard from 

Dubin; attacking the underlying predicate offense to eliminate the derivative charge; and (where a plea is the appropriate resolution) negotiating for the government to dismiss or not charge the §1028A count in exchange for a plea on the primary offense.

Lead Attorney: James Lee Bright

Of Counsel James Lee Bright is one of the most experienced federal criminal defense attorneys in Texas, with more than 25 years of practice focused on federal criminal cases.

• J.D., University of Tennessee College of Law (1996)
• LL.M. in International Law, SMU Dedman School of Law (2003) — Phi Delta Phi honor fraternity
• Admitted: Northern, Eastern, Southern, and Western Districts of Texas
• Admitted: U.S. District Court for the District of Columbia
• Admitted: U.S. Court of Appeals for the Fifth Circuit
• Admitted: United States Supreme Court

• Lead defense counsel in the Stewart Rhodes/Oath Keepers seditious conspiracy trial which was a three-month federal trial in Washington, D.C., among the most significant federal conspiracy prosecutions in recent history

• President, Dallas Criminal Defense Lawyers Association (2010–2011)
• Texas Super Lawyers® 2021–2024
• D Magazine Best Lawyers — multiple appearances

If you are facing federal identity theft or aggravated identity theft charges in Texas, call (214) 225-7117 for a free, confidential consultation with James Lee Bright. We serve clients in the Northern, Eastern, Southern, and Western Districts of Texas, the District of Columbia, and the Fifth Circuit Court of Appeals. Or schedule online at texasdwisite.com.