Federal Aggravated Identity Theft: The 2-Year Sentence That Gets Stacked on Other Charges

Among the federal charges that clients encounter, 18 U.S.C. §1028A — aggravated identity theft — may be the most misunderstood and the most dangerous. It does not carry the longest potential sentence. It does not make headlines the way drug trafficking or fraud charges do. But it carries a feature that makes it one of the most powerful tools in the federal prosecutor’s arsenal: a mandatory 2-year consecutive sentence that is stacked on top of whatever sentence the defendant receives for the underlying federal felony.

This means the 2 years cannot run concurrently with other sentences. They cannot be reduced by good behavior to the same extent as other sentences. And they are added automatically upon conviction — the judge has no discretion to impose a shorter sentence. For defendants facing complex federal charges, understanding how §1028A works and how it can be challenged is critical.

How Aggravated Identity Theft Works

Section 1028A applies when a person knowingly transfers, possesses, or uses the means of identification of another person during and in relation to a specified federal felony. The list of specified felonies is broad: wire fraud, mail fraud, healthcare fraud, immigration offenses, drug trafficking, bank fraud, tax fraud, Social Security fraud, computer fraud, and many others.

The mandatory 2-year sentence is consecutive — served after the sentence for the underlying offense is completed. A defendant sentenced to 5 years for wire fraud and convicted of one count of aggravated identity theft will serve 7 years. Multiple counts of §1028A can be stacked: two counts means 4 additional years; three counts means 6 additional years.

How Prosecutors Use §1028A as Leverage

The real power of §1028A is not at trial. It is in plea negotiations. Federal prosecutors routinely add aggravated identity theft counts to indictments as a bargaining chip. The threat of an additional 2 to 6 years of mandatory consecutive imprisonment creates enormous pressure on defendants to accept plea agreements. In exchange for a guilty plea on the underlying charges, the government may offer to dismiss the §1028A counts. This leverage dynamic is well understood by experienced federal defense attorneys and navigating it effectively requires someone who has been through the process many times.

Attorney James Lee Bright has more than 25 years of federal trial and negotiation experience. He understands how prosecutors deploy §1028A and develops defense strategies that address the leverage imbalance — including challenging the legal sufficiency of the charge itself.

The Dubin Decision: A Major Narrowing

In Dubin v. United States (2023), the Supreme Court significantly narrowed the scope of §1028A. Before Dubin, federal prosecutors applied the statute broadly — charging aggravated identity theft whenever another person’s identifying information appeared anywhere in the course of a federal crime, even incidentally.

The Supreme Court rejected this broad interpretation. The Court held that to sustain a §1028A charge, the use of another person’s means of identification must be “at the crux of what makes the conduct criminal.” In other words, the identity theft must be central to the underlying offense, not merely incidental to it.

Examples of how Dubin changes the analysis:

• Before Dubin: A healthcare provider who overbilled Medicare using a patient’s Medicare number could be charged with aggravated identity theft because the patient’s identifying information was used in the fraudulent billing.
• After Dubin: The use of the patient’s Medicare number was incidental to the fraud (overbilling), not at the crux of what made the conduct criminal. The provider was not pretending to be the patient. The §1028A charge would likely not survive.

Lee evaluates every aggravated identity theft charge against the Dubin standard and challenges charges that do not meet the “at the crux” requirement. In cases where existing convictions predated Dubin, the decision may provide grounds for post-conviction relief.

Defending Against Aggravated Identity Theft

• The knowledge requirement. The defendant must have knowingly used the means of identification of another real person. Using a fabricated identity does not trigger §1028A. Using a real person’s information without knowing it belonged to a real person is also a defense.
• The Dubin challenge. Was the use of another’s identity “at the crux” of the criminal conduct? If not, the charge should be dismissed.
• Challenging the underlying felony. If the specified federal felony is dismissed or results in acquittal, the §1028A charge falls with it.
• Negotiation strategy. In plea negotiations, the strength of the §1028A defense directly affects the government’s leverage. A strong defense on the identity theft count reduces the pressure to accept an unfavorable plea agreement.

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Contact Deandra Grant Law

If you are under investigation or have been charged with a federal offense, contact Deandra Grant Law for a free, confidential consultation with Attorney James Lee Bright. Lee has more than 25 years of federal trial experience and is admitted to practice in all four federal districts in Texas, the District of Columbia, the Fifth Circuit Court of Appeals, and the United States Supreme Court.

Call us at (214) 225-7117 or schedule a free consultation at texasdwisite.com/schedule-an-appointment/. Se habla español: (972) 347-8833.

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