Identity Theft Defense Lawyer

Summary of Aggravated Identity Theft Under Federal Law

Federal law has two statutes that address the crime of identity theft. The first is 18 USC 1028. Congress passed this statute as part of the Identity Theft and Assumption Deterrent Act in 1998. This was the first federal statute concerning the crime of identity theft, which is a modern offense.

The definition of identity theft appears in Section 1028(a)(7). That section provides that a person is guilty of identity theft if they use the identifying information of another in connection with any federal crime or any state or local felony.

Thus, the federal crime of identity theft requires a predicate offense. This is to say that a person can only be charged with identity theft if they first commit another crime, and while doing so, use the personal identifiable information of someone else.

Under Section 1028(a)(7), identity theft occurs when a person “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.”

Federal prosecutions for identity theft under 18 USC 1028 are probably rare. The reason is that this statute has been replaced by a more severe statute prohibiting identity theft – the second federal statute, 18 USC 1028A.

18 U.S.C. 1028A

18 USC 1028A establishes the offense of aggravated identity theft. This statute became law in the United States in 2004. It prohibits the use of identifying information belonging to another in two instances – first, in connection with certain federal offenses and second, in relation to terrorism offenses.

The Department of Justice prefers to prosecute offenders under Section 1028A because the penalties far exceed those that are available under the earlier law, Section 1028. For example, aggravated identity theft has a mandatory two-year sentence in the Bureau of Prisons. This sentence must be served consecutively to any other sentence.

Most sentences for various crimes run concurrently. This means that a person found guilty of two or more crimes will serve the sentence imposed on each crime simultaneously. For example, if a person receives a sentence of one year on the first crime and three years on the second, they will only serve a total of three years.

Compare this situation to someone who serves sentences consecutively. A defendant who is sentenced to one year on the first crime and three years on a second crime will serve four years total. Consecutive sentencing means that the sentences run one after the other.

The consecutive nature of sentencing for aggravated identity theft under 18 USC 1028A is important because the case always involves two sentences. Recall that identity theft requires two elements – obtaining the identifying information of another person and using that information during the commission of another crime.

Aggravated Identity Theft Sentencing

18 USC 1028A requires federal courts to sentence the defendant to two years prison to be served after the sentence for the underlying crime. Section 1028(b) provides rules for sentencing in these cases. The statute prohibits the judge from allowing the sentences to run concurrently. Instead, the court must sentence the defendant consecutively. And so, whatever the sentences for the underlying crime, a person charged with aggravated identity theft must serve two years after that.

In addition, federal law prohibits the judge from reducing the sentence on the underlying crime to account for the two-year consecutive add-on. The only situation in which the court may sentence the defendant to concurrent sentences is when there are multiple convictions for aggravated identity theft. In this instance, each two-year consecutive sentence for aggravated identity theft may be served at the same time, but only after completing the sentence for the underlying crime.

That being said, the First Step Act does clear a path for early release after sentencing. For non-violent offenders, it is possible to earn 54 days of credit for each year served on a federal sentence. Though if identity theft involves an underlying crime that was violent – such as terrorism – this early release program is unavailable.

18 USC 1028A provides that aggravated identity theft occurs when a person commits a crime and also “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”

Aggravated Identity Theft Crimes

• 18 USC 641 (theft of public money or property);
• 18 USC 656 (theft, embezzlement, or misapplication by a bank officer or employee);
• 18 USC 664 (theft from employee benefit plans);
• 18 USC 911 (false personation of citizenship);
• 18 USC 922(a)(6) (false statements made in connection with the acquisition of a firearm);
• Any crime from Chapter 47 of the criminal code relating to fraud and false statements (e.g., 18 USC 1001);
• Any crime from Chapter 63 of the criminal code relating to mail, bank, and wire fraud (e.g., 18 USC 1341, 1343, and 1344);
• Any crime in Chapter 69 of the criminal code relating to nationality and citizenship;
• Any offense in Chapter 75 of the criminal code relating to passports and visas;
• 15 USC 6821 relating to obtaining customer information by false pretenses (see penalty provision at 15 USC 6823);
• Violations concerning willfully failing to leave the United States after deportation and creating a counterfeit alien registration card (e.g., see penalty provisions at 8 USC 1253 and 1306);
• Various immigration offenses (e.g., 8 USC 1321-1330); and
• False statements relating to Social Security programs (e.g., 42 USC 408, 1011, 1307(b), 1320a–7b (a), and 1383a).

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