Federal Identity Theft Charges Under 18 USC 1028 and 1028A
So your probably facing federal identity theft charges and your confused because you didn’t steal anyone’s identity or commit fraud. Maybe you used someone else’s social security number on a job application. Maybe there’s allegations you possessed fake IDs. Or maybe your charged with “aggravated identity theft” for conduct you thought was minor. Look, we get it. Your ABSOLUTELY OVERWHELMED by the charges. And you should be TERRIFIED! Because aggravated identity theft under 18 USC 1028A carries MANDATORY 2-YEAR prison sentence that MUST run consecutive to any other sentence!
What Is Federal Identity Theft Under 18 USC 1028?
Let me explain the identity document fraud trap. Section 1028 criminalizes production, transfer, possession, and use of false identification documents and authentication features – incredibly broad statute covering everything from fake driver’s licenses to stolen credit cards!
The statute lists EIGHT prohibited acts! Production or transfer of false IDs, possession of document-making equipment, trafficking in false authentication features, possession with intent to defraud, using another person’s identification! Each is separate offense!
Here’s what’s really scary – “means of identification” is BROADLY defined! Name, Social Security number, date of birth, driver’s license number, bank account, credit card, biometric data, email address, unique ID! Virtually ANYTHING that identifies someone!
“Identification document” includes government-issued IDs! Driver’s licenses, passports, birth certificates, immigration documents, military IDs! Even non-government IDs like employee badges or student IDs can qualify! We’ve seen prosecutions for college ID cards!
What’s the Difference Between 1028 and 1028A?
Two statutes with DRASTICALLY different penalties!
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(212) 300-5196Section 1028 is general identity document fraud – penalties range from 1 to 30 years depending on circumstances! Section 1028A is “aggravated identity theft” – MANDATORY 2 years (or 5 for terrorism) added to underlying offense!
Regular 1028 violations have tiered penalties! Simple possession? Up to 1 year! Production or transfer of IDs? Up to 15 years! If involves drug trafficking or violence? Up to 20 years! Terrorism? 30 years!
But 1028A is different animal! Requires commission of predicate felony PLUS use of another’s means of identification! The 2-year sentence is MANDATORY MINIMUM and runs CONSECUTIVE not concurrent!
Todd Spodek
Lead Attorney & Founder
Featured on Netflix's "Inventing Anna," Todd Spodek brings decades of high-stakes criminal defense experience. His aggressive approach has secured dismissals and acquittals in cases others deemed unwinnable.
You used a former coworker's Social Security number on a job application after losing your work authorization, and now federal agents have shown up at your door with an arrest warrant. The charges include both 18 USC 1028 (fraud related to identification documents) and 18 USC 1028A (aggravated identity theft), and you're being told you face a mandatory minimum sentence.
How can I be charged with aggravated identity theft when I never tried to steal anyone's identity or take money from them?
Under 18 USC 1028A, aggravated identity theft carries a mandatory consecutive 2-year prison sentence that gets added on top of whatever sentence you receive for the underlying offense — and the government doesn't have to prove you intended to harm the other person. All prosecutors need to show is that you knowingly used another real person's identifying information during or in relation to a felony. We've handled numerous cases where we've successfully argued for dismissal of the 1028A charge by demonstrating our client didn't know the credentials belonged to an actual living person, which the Supreme Court ruled in Flores-Figueroa v. United States is a required element the government must prove.
This is general information only. Contact us for advice specific to your situation.
This means: convicted of fraud carrying 5 years PLUS aggravated identity theft? That’s 7 years MINIMUM! Can’t reduce it, can’t run concurrent, can’t get safety valve! Judge HAS NO DISCRETION!
Predicate offenses for 1028A include fraud, immigration violations, firearms offenses, theft of government property! Over 30 listed predicate offenses! Virtually every federal fraud case now includes aggravated identity theft charge!
