Can you go to prison for 18 USC 1028A

| by Max Soni

Can you go to prison for 18 USC 1028A?

Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek, with over 40 years of combined experience handling federal criminal cases. We’ve represented clients in cases that captivated national attention – like Anna Delvey’s trial that became a Netflix series, the Ghislaine Maxwell juror misconduct case, and countless federal fraud prosecutions. If you’re facing 18 USC 1028A charges, you need to understand what you’re up against.

Yes – you absolutely go to prison for 18 USC 1028A. There’s no probation option, no house arrest alternative, no way around it. The statute requires a mandatory minimum of two years in federal prison, and that sentence runs consecutive to whatever you get for the underlying felony. Consecutive means stacked on top, not merged together. If you’re sentenced to three years for wire fraud and convicted under 1028A, you’re doing five years total. Federal judges have no discretion to reduce this or run the sentences concurrently – Congress wrote the law that way on purpose.

What 18 USC 1028A Actually Punishes

Aggravated identity theft under 18 USC 1028A applies when you use someone else’s identification “during and in relation to” certain predicate felonies. The predicate offenses include wire fraud, bank fraud, tax fraud, immigration fraud, passport fraud, and dozens of other federal crimes listed in the statute. Prosecutors charge this constantly in fraud cases – if you used someone’s Social Security number to file a fraudulent tax return, if you put someone else’s name on loan documents, if you submitted immigration paperwork with stolen identity information.

The “during and in relation to” language matters more than it sounds. The Supreme Court narrowed this in recent years, holding that the identity theft must be central to the underlying crime, not just tangential. But prosecutors still charge it aggressively. In fiscal year 2024, the U.S. Sentencing Commission reported 575 cases involving 1028A out of 61,678 total federal cases. That’s one percent of all federal prosecutions, which tells you how often this charge appears.

Why Prosecutors Love This Statute

Federal prosecutors use 18 USC 1028A as leverage. The mandatory two-year consecutive sentence transforms plea negotiations because defendants know they’re facing automatic additional prison time if convicted at trial. A wire fraud case that might resolve with 18 months suddenly becomes 42 months minimum if the government adds a 1028A count. This isn’t speculation – it’s how the system works. Our managing partner, Todd Spodek, has handled many, many cases where prosecutors added identity theft charges specifically to pressure defendants into pleading guilty to the underlying offense.

The Department of Justice prefers 1028A over the older identity theft statute, 18 USC 1028, because the penalties are dramatically higher and mandatory. Under 1028, maximum sentences range from 5 to 15 years depending on the circumstances, but judges have discretion and probation is possible. Under 1028A, prison is mandatory and consecutive. From the government’s perspective, that’s a massive advantage.

Real Sentencing Outcomes in 2025

Looking at actual sentences imposed, the average defendant convicted under 1028A received 54 months total in fiscal year 2024. When someone was convicted only of 1028A with no other counts, the average was 25 months. When convicted of both 1028A and another offense, the average jumped to 57 months. Multiple counts of 1028A? Average 74 months. And 99% of convicted defendants went to prison – probation was granted in less than 1% of cases.

The numbers have been climbing. Average guideline minimums increased from 56 months in 2020 to 68 months in 2024. Average sentences imposed rose from 44 months to 54 months in that same period. Federal judges are taking these cases more seriously, and the Sentencing Commission data shows that clearly.

For terrorism-related predicate offenses under 1028A, the mandatory minimum jumps to five years instead of two. These cases are rare but exist – typically involving passport fraud or immigration document fraud connected to material support charges or similar offenses.

What You Can Fight and What You Can’t

If you’re convicted under 18 USC 1028A, you’re going to prison for at least two years consecutive to any other sentence. That’s not negotiable. But conviction isn’t guaranteed. The government must prove you knowingly used another person’s identification during and in relation to a predicate felony. “Knowingly” is an element prosecutors must establish – you had to know the identification belonged to someone else, you had to know you lacked authority to use it.

The “in relation to” element has defenses. The identity theft must be at the crux of what makes the underlying offense criminal, according to Supreme Court precedent. If using someone’s ID was incidental rather than central to the fraud scheme, 1028A might not apply. This doesn’t come up in obvious cases – stealing someone’s Social Security number to file fake tax returns is clearly covered. But in more complex fraud prosecutions where identity information was used peripherally, there’s room to argue the charge doesn’t fit.

Another issue that comes up: multiple 1028A counts. If you’re charged with three separate counts of aggravated identity theft, those sentences can run concurrently with each other at the judge’s discretion. They still run consecutive to the underlying felony, but the judge can merge the 1028A counts together. So three counts doesn’t automatically mean six years – it could still be two years total for the identity theft component, plus whatever the predicate offense adds.

What Spodek Law Group Does in These Cases

Our criminal defense attorneys challenge 1028A charges from multiple angles. We scrutinize whether the government can prove the “during and in relation to” element. We examine whether the identification actually belonged to a real person – the statute requires using another person’s means of identification, not just a fake ID with made-up information. We negotiate with prosecutors to remove 1028A counts in exchange for plea agreements on underlying offenses. And when cases go to trial, we force the government to prove every element beyond reasonable doubt.

Todd Spodek built this firm on the principle that we only take cases where we can make a real difference. Unlike other law firms that accept every client who walks through the door, we’re selective. If we’re working with you, it’s because we believe we can achieve a better outcome than you’d get elsewhere. Our team includes former federal prosecutors who understand exactly how the government builds these cases and where the vulnerabilities are.

We’ve been featured in major media outlets – NY Post, Newsweek, Bloomberg, Business Insider – not because we seek publicity but because we handle cases that matter. The Anna Delvey case wasn’t just about a Netflix series. It was about a young woman facing serious federal charges, and Todd Spodek’s creative defense strategy resulted in acquittals on some of the most serious counts. That’s the approach we bring to every case, including 18 USC 1028A prosecutions.

Don’t Wait Until Indictment

If federal agents have contacted you about identity theft allegations, if you’ve been subpoenaed to a grand jury, if you know an investigation involves your use of identification documents – reach out now, not after you’re indicted. Pre-indictment is when experienced defense counsel can make the most impact. We can communicate with prosecutors, present evidence that undermines the government’s theory, negotiate to prevent charges from being filed in the first place.

Once you’re indicted, your options narrow. The mandatory minimum becomes a hammer hanging over the entire case. Prosecutors know you’re facing automatic prison time, and they negotiate accordingly. Getting ahead of charges, when possible, changes the entire dynamic.

We’re available 24/7 because federal investigations don’t operate on business hours. You might get a call from the FBI at 6 AM or find agents at your door on a Saturday. We’re prepared to respond immediately – that’s what we do at Spodek Law Group. Our goal is to provide you with the aggressive representation you need at every stage of your case.

18 USC 1028A is one of the most serious sentencing enhancements in federal criminal law. Prison is mandatory, sentences are increasing, and prosecutors use this charge strategically. You need attorneys who understand the statute inside and out, who have experience defending these cases, and who aren’t intimidated by federal prosecutors. That’s what we offer.