Federal Credit Card Fraud Sentencing Guidelines

Federal Credit Card Fraud Sentencing Guidelines: What the 26-Month Average Doesn’t Tell You

The average federal credit card fraud sentence is 26 months. That number appears everywhere. Defense attorneys cite it. Prosecutors reference it during plea negotiations. Defendants cling to it like a life raft. But that number is a lie by omission – and understanding why could mean the difference between coming home in two years and coming home in five.

Welcome to Spodek Law Group. Our goal is to explain what actually happens in federal credit card fraud cases – not the sanitized version, but the reality we see when clients walk through our door after getting charged under 18 U.S.C. § 1029. The 26-month average hides the most important variable in your sentencing: whether prosecutors stack identity theft charges on top of your credit card fraud charges. In fiscal year 2024, 40.9% of defendants got hit with this add-on. And when they did, their sentences didn’t double – they more than doubled.

That’s the insight that changes everything. Federal credit card fraud isn’t prosecuted as a credit card crime anymore. It’s become a delivery mechanism for aggravated identity theft charges under 18 U.S.C. § 1028A. The credit card charge might average 26 months. But the identity theft add-on carries a MANDATORY 2-year consecutive sentence that cannot be reduced, cannot be probationed, and cannot run concurrent with anything else. Once you understand this, you understand why the average sentence statistic tells you almost nothing useful.

The 26-Month Average Hides Everything

Heres the thing about averages. They flatten reality into something managable but misleading. The U.S. Sentencing Commission reports that the average sentence for credit card fraud in fiscal year 2024 was 26 months. The average guideline minimum was 35 months. That 9-month gap represents the wiggle room where defense attorneys operate – variances, departures, and negotiations that bring sentences below the guidelines.

But those numbers dont include the consecutive time from aggravated identity theft. When prosecutors charge 18 USC 1028A alongside your credit card fraud, they add 24 months that runs AFTER your credit card sentence ends. Not concurrent. Not overlapping. After. So the person who got 26 months on credit card fraud and 24 months consecutive on identity theft actually served 50 months. But the Sentencing Commission only reports the 26.

This isnt hypothetical. Look at the numbers. 40.9% of credit card fraud defendants had “unauthorized identification use” as an aggravating factor. Thats the marker for identity theft stacking. Almost half of everyone charged. And the people who make it through without that add-on? There doing something right that most defendants dont understand until its to late.

Why 15 Cards Changes Everything

OK so heres were the federal system gets truly wierd. Possessing 15 or more unauthorized access devices triggers automatic federal jurisdiction. Fourteen cards might be a state case – potentially a misdemeanor depending on your jurisdiction. Fifteen cards is a federal felony with up to 10 years on the table.

The number isnt based on loss. Its not based on how many you used. Its pure quantity. And prosecutors count aggressively. Every card in your wallet. Every account number in your phone. Every PIN written on a sticky note. Each one counts as a seperate “access device” under 18 USC 1029.

Heres the kicker. Courts assume $500 in loss PER DEVICE even if you never used it. Fifteen cards you never swiped equals $7,500 in calculated loss that increases your offense level. The crime is possession with intent. The actual fraud is just evidence of the intent.

Think about what that means. Your arrested with a wallet full of cards that wernt yours. Your phone gets searched incident to arrest. Investigators find more numbers stored in notes. Each number counts. Each PIN counts. Before anyone calculates what you actualy stole, there already building a federal case based on what you had.

The Identity Theft Add-On Nobody Warns You About

This is were it gets dangerous. The single biggest sentencing trap in federal credit card fraud isnt the credit card charge – its the aggravated identity theft charge that gets attached to it.

18 USC 1028A is called “aggravated identity theft” but the name is misleading. You dont have to steal someones identity in the traditional sense. You just have to “transfer, possess, or use” a “means of identification” of another person during certain predicate offenses – including credit card fraud. Someones name on a card? Thats means of identification. There account number? Means of identification. There date of birth linked to an account? Means of identification.

And heres the part that destroys people. The 2-year mandatory sentence under 1028A is CONSECUTIVE. Federal judges have no discretion. Even if the judge thinks your guideline range is to harsh. Even if you have zero criminal history. Even if you cooperated completly. That 24 months runs after everything else.

Ive seen cases were clients come in expecting there 26-month average and walk out with 50. The credit card fraud guidelines calculated to 26. The identity theft add-on added 24 more. And becuase its mandatory consecutive, there was nothing the judge could do about it.

Todd Spodek has handled hundreds of these federal cases, and he says the same thing every time: the identity theft add-on is were cases blow up. Prosecutors know this. They use 1028A as leverage. Plead to credit card fraud and we drop the identity theft count. Fight the credit card fraud and we stack everything we can.

First Offense Doesn’t Mean What You Think

Let that sink in. 55.5% of defendants sentenced for credit card fraud in fiscal year 2024 had minimal criminal history – Category I under the federal sentencing guidelines. These werent career criminals. Many had never been arrested before. And 92.7% of them still went to prison.

The federal system dosent work like state court. First offense dosent mean probation. It dosent mean a second chance. It means you start at the bottom of the criminal history category, which affects your guideline range, but your still in the range. The offense characteristics – loss amount, number of victims, sophistication of the scheme – drive your sentence more then your background.

Heres the uncomfortable truth. If your facing federal credit card fraud charges, your probly going to prison. The incarceration rate is 92.7%. Almost nobody walks. The question isnt whether you’ll serve time. The question is how much time and were.

This is why early intervention matters so much. Spodek Law Group gets involved before charges are filed whenever possible. Once your indicted, the leverage shifts dramaticaly. Before indictment, theres room to negotiate, to present mitigating evidence, to prevent the identity theft add-on from ever attaching. After indictment, your fighting uphill.

The Device You Never Used Still Counts

Most people think credit card fraud requires actualy using the cards. Making purchases. Racking up charges. Thats how state cases usually work – they calculate loss from what you spent.

Federal law is diffrent. Under 18 USC 1029(a)(3), its illegal to possess 15 or more counterfeit or unauthorized access devices with intent to defraud. The intent is the crime. The possession is the evidence. You dont have to swipe a single card.

And remeber the $500 assumption? Courts apply a floor of $500 in intended loss per device under the sentencing guidelines. Twenty cards you never used equals $10,000 in calculated loss. That bumps your offense level. That increases your guideline range. That affects were you’ll serve time.

The irony is brutal. Someone who used three cards to steal $15,000 might face the same sentence as someone who possessed 30 cards and never used any of them. The actual harm to victims is completly diffrent. The intended harm – at least as calculated by the guidelines – looks identical.

The Statutory Maximums Are Higher Than You Think

18 USC 1029 has multiple subsections, and each carries diffrent maximum penalties. Understanding which subsection your charged under matters enormously.

Subsections (a)(1), (a)(2), and (a)(3) carry up to 10 years for a first offense. These cover producing, trafficking, and possessing counterfeit or unauthorized access devices. The 15-device threshold lives in (a)(3).

Subsections (a)(4), (a)(5), (a)(8), and (a)(9) carry up to 15 years. These cover possessing device-making equipment, using unauthorized access devices to obtain value, and trafficking in device-making equipment. Owning a credit card skimmer falls under (a)(4) – thats 15 years maximum just for having the equipment.

For repeat offenders, the maximums double. A second conviction under subsections (a)(1) through (a)(3) jumps to 20 years. Second conviction under (a)(4), (a)(5), (a)(8), or (a)(9) jumps to 20 years as well.

And thats before the identity theft add-on. Add 24 months mandatory consecutive for every 1028A count. The statutory exposure in a serious case can reach 25+ years.

Nobody expects to serve the statutory maximum. Guideline ranges are lower. But the maximum creates leverage. Prosecutors use it during plea negotiations. “Your facing 20 years. Take the deal.”

How Loss Amount Drives Everything

The federal sentencing guidelines calculate your offense level based primarily on loss amount. More loss equals higher offense level equals longer sentence. Simple in theory. Complicated in practice.

Heres how the loss table works for fraud offenses. Loss under $6,500 adds zero levels. Loss between $6,500 and $15,000 adds 2 levels. Loss between $15,000 and $40,000 adds 4 levels. It keeps climbing. Loss over $550,000 adds 22 levels. Loss over $25 million adds 30 levels.

Each offense level corresponds to a sentencing range based on your criminal history category. A person with no criminal history (Category I) at offense level 15 faces 18-24 months. At offense level 20, they face 33-41 months. At offense level 25, they face 57-71 months.

The median loss in credit card fraud cases was $154,919 in fiscal year 2024. That puts most defendants in the higher loss categories. But 17.1% of cases involved losses under $15,000 – the feds will still prosecute relativley small cases when other factors warrant federal attention.

The numbers matter. Every dollar of loss affects your guideline range. And the way prosecutors calculate loss can be aggresive. They include intended loss, not just actual loss. They include loss from uncharged conduct. They include the $500-per-device assumption for unused cards.

How Sentences Actually Get Reduced

Alright so after all the bad news, heres were defense strategy actualy matters. The sentencing data shows real opportunities for reduction, but you have to understand how they work.

Substantial Assistance Departures: 16.4% of defendants recieved substantial assistance departures. The average reduction was 64%. Thats massive. A 35-month guideline minimum becomes 12.6 months. But theres a catch – substantial assistance means cooperating with the goverment against others. Providing information. Testifying. Making enemies. This isnt right for everyone.

Downward Variances: 37% recieved downward variances averaging 49.3% below the guideline range. These dont require cooperation. They require demonstrating that the guidelines overstate your culpability, that your personal circumstances warrant mercy, that the proposed sentence is greater then neccesary to achieve the goals of sentencing.

Safety Valve and Other Departures: Various other departures apply in specific circumstances – age, health, family responsibilities, aberrant behavior.

The pattern is clear. Sentences get reduced when defense counsel effectively argues for reduction BEFORE sentencing. The judge needs reasons. The probation officer needs documentation. The presentence report needs to reflect your mitigation.

Todd Spodek approaches every case knowing that the sentencing hearing is often were cases are won or lost. The conviction might be inevitable. The sentence isnt.

The Counting Game Prosecutors Play

Federal prosecutors are sophisticated. They understand exactly how to charge cases to maximize there leverage. And credit card fraud cases offer particular opportunities for creative charging.

First, they count devices liberally. Your cards, numbers in your phone, PINs on paper, account information anywhere. Each one counts toward the 15-device threshold.

Second, they identify every person whos information appears. Each person creates a potential 1028A count. Had cards with ten diffrent peoples names? Thats ten potential identity theft charges, each carrying 2 years consecutive.

Third, they negotiate from maximum exposure. The initial indictment might include every possible charge. Then they offer to drop the identity theft counts if you plead to the credit card fraud. It looks generous. It is generous – compared to the maximum. But its still prison.

This is why Spodek Law Group emphasizes pre-indictment intervention when possible. Before charges file, theres room to shape the case. To present evidence that might convince prosecutors to charge less aggressively. To avoid the identity theft add-on entirely if the facts support it.

What the Demographics Tell Us

The Sentencing Commission data reveals something uncomfortable about federal credit card fraud prosecution. 45.3% of defendants were Black. 34.7% were White. 14.0% were Hispanic.

Were not making accusations about any individual case. But the numbers are what they are. And anyone facing these charges should understand that the system produces these outcomes consistantly, year after year.

The average age was 38. Most defendants were U.S. citizens (82.8%). And as mentioned, more then half had minimal criminal history.

This isnt a crime dominated by hardened criminals with lengthy records. Its a crime that catches ordinary people who made terrible decisions – or in some cases, got caught up in schemes they didnt fully understand.

The Restitution Reality

Prison time isnt the only consequence. Federal conviction for credit card fraud carries mandatory restitution to victims, and that obligation follows you forever.

You cant discharge restitution in bankruptcy. Interest accumulates while your incarcerated. Upon release, your wages can be garnished. Your tax refunds can be seized. The financial burden extends years – sometimes decades – past your prison sentence.

And federal convictions dont go away. Theres no expungement. No sealing. No second chance unless you get a presidential pardon, which happens aproximately never. That conviction follows you for employment, housing, professional licensing, everything.

What Happens Before Sentencing Matters Most

If your reading this because your facing federal credit card fraud charges, heres what you need to understand: the most important work happens before sentencing, often before indictment.

Pre-charge intervention can prevent federal prosecution entirely. Sometimes cases can be resolved at the state level. Sometimes prosecutors can be convinced not to charge the identity theft add-on. Sometimes the device count can be challenged.

Post-charge but pre-plea, there opportunities to negotiate. What charges? What enhancements? What recommended sentence? The plea agreement matters enormously.

Post-plea but pre-sentencing, theres the presentence investigation. The defense sentencing memorandum. The variance arguments. The mitigation presentation.

At each stage, defense counsel can affect the outcome. But only if there involved. Only if there preparing.

Call Spodek Law Group at 212-300-5196. The consultation is free. The mistake of waiting isnt.

The Timeline Isnt What You Expect

Federal cases move slower then state cases. Much slower. Investigations can take months or years before charges. Once charged, discovery takes time. Motions take time. Plea negotiations take time.

The average federal case takes 8-12 months from indictment to sentencing. Some take longer. And the entire time, your in limbo. Maybe on pretrial release, maybe detained. Waiting.

This is another reason early counsel matters. When your represented before charges, your attorney can monitor the investigation. Prepare your defense. Position you for the best possible outcome when charges finaly come – or work to prevent them from coming at all.

The 739 Cases You Need to Understand

In fiscal year 2024, only 739 federal cases involved credit card fraud as the primary offense – out of 61,678 total federal cases. Thats 1.2%.

This tells you something important: the feds are selective. They dont take every credit card case. They take cases they want to make examples of. Cases with significant loss. Cases involving sophisticated schemes. Cases crossing state lines. Cases were the victim is a federaly insured financial institution.

If your case is federal, its becuase someone decided it should be federal. The Secret Service investigated instead of local police. The U.S. Attorneys Office took it instead of the district attorney. And that means there taking it seriously. More seriously then a state misdemeanor. More seriously then you probably expected when you got arrested.

The top districts for credit card fraud prosecutions include the Central District of California, the Southern District of New York, the Southern District of Florida, the District of New Jersey, and the Northern District of Ohio. These jurisdictions see the highest volume becuase of there population density, financial sector presence, and prosecutorial priorities.

Treat your case accordingly. Federal prosecution isnt an accident. Its a choice. And once theyve made that choice, they intend to win.

This information is provided for educational purposes. Every case is diffrent, and outcomes depend on specific facts and circumstances. If your facing federal credit card fraud charges, consult with qualified legal counsel immediately.