18 U.S.C. § 1028A — Aggravated Identity Theft

Section 1028A is a sentencing weapon. It is not charged for its own sake — it is added to a fraud count to guarantee two extra years that the judge cannot reduce, suspend, or run concurrently.

For years the government read it very broadly, attaching it to any fraud that touched a name or number. The Supreme Court put a stop to that.

What the statute says

18 U.S.C. § 1028A(a)(1) provides that whoever, during and in relation to any felony violation enumerated in subsection (c), "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person" shall be sentenced to a term of two years, in addition to the punishment for the underlying felony. Where the predicate is a terrorism offense, the term is five years.

In plain English

If you commit one of the listed felonies — most federal fraud offenses are on the list — and in doing so you used someone else's identifying information, you get an extra two years that must be served after and in addition to whatever else you receive.

The elements

1. The defendant knowingly transferred, possessed, or used a means of identification;
2. The means of identification belonged to another actual person;
3. The defendant knew it belonged to another actual person;
4. The defendant acted without lawful authority; and
5. The conduct occurred during and in relation to an enumerated predicate felony.

Flores-Figueroa: you must know it was a real person

In Flores-Figueroa v. United States, 556 U.S. 646 (2009), the Supreme Court held that "knowingly" modifies the phrase "of another person" — so the government must prove the defendant knew the identification belonged to a real, identifiable individual. Using a fabricated number that happens to belong to someone does not satisfy the statute.

Dubin: the 2023 decision that narrowed the statute

In Dubin v. United States, 599 U.S. 110 (2023), the Court rejected the government's expansive reading. Dubin had overbilled Medicaid for psychological testing, and the patient's name appeared on the fraudulent claim. The government argued that was enough.

The Court disagreed. It held that a defendant "uses" a means of identification under § 1028A only when the misuse of that identification is at the crux of what makes the conduct criminal — that is, when the identity itself is the means by which the fraud is committed. Where the identification is merely ancillary to a fraud about something else, such as the nature or quality of services actually provided to a real patient, § 1028A does not apply.

The practical consequence is large. A great many healthcare billing, over-billing, and services-not-rendered cases that previously carried an automatic two-year add-on no longer support the charge. If § 1028A was charged in your case, whether the identity was central or incidental to the fraud is now a threshold question worth litigating.

The consecutive-sentence requirement

The two years cannot run concurrently with the sentence for the predicate offense, and the court may not reduce the predicate sentence to compensate. Multiple § 1028A counts may run concurrently with each other at the court's discretion, but the block of § 1028A time sits on top of everything else.

Probation is unavailable on a § 1028A count. This is precisely why the charge is used as negotiating leverage — and why getting it dismissed in a plea agreement is often worth more than any Guidelines concession.

How it shows up in real cases

Common predicates include wire fraud, bank fraud, mail fraud, healthcare fraud, and immigration document offenses. Typical fact patterns are tax refund fraud using stolen Social Security numbers, synthetic identity credit fraud, and unemployment or pandemic-relief fraud filed in other people's names — cases where the identity genuinely is the mechanism of the fraud and Dubin offers no refuge.

Related statutes and pages

18 U.S.C. § 1028 — identity fraud · Federal identity theft · Healthcare fraud · Wire fraud