Identity theft and aggravated identity theft charges

What does the law make illegal?

Identity theft, 18 U.S.C. § 1028(a)(7)

It is a crime to knowingly transfer, possess or use, without lawful authority, another person's "means of identification" with intent to commit, aid or abet any federal crime or any state felony, or in connection with one (18 U.S.C. § 1028(a)(7)). A means of identification is any name or number that can be used, alone or with other information, to identify a specific person, such as a name, Social Security number, date of birth, driver's license or passport number, or biometric data such as a fingerprint (§ 1028(d)(7)). Section 1028 also covers making, selling and possessing false ID documents.

Aggravated identity theft, 18 U.S.C. § 1028A

To convict under § 1028A(a)(1), the government must prove that the person:

• Knowingly transferred, possessed or used a means of identification of another person.
• Without lawful authority.
• Knowing that it belonged to another real person (Flores-Figueroa v. United States, 556 U.S. 646 (2009)).
• During and in relation to one of the felonies listed in § 1028A(c). The list includes mail, wire, bank and health care fraud, theft of government money, false statements to buy a gun, passport and immigration fraud, and some Social Security crimes.

What Dubin changed

In Dubin's case, the government argued that § 1028A applied automatically because a fraudulent Medicaid bill included a patient's Medicaid number. In Dubin v. United States, 599 U.S. 110 (2023), the Supreme Court held that a person "uses" another's identity "in relation to" a crime only when the use is at the crux of what makes the conduct criminal. In Dubin, the heart of the overbilling was inflating the value of services that were actually provided, while the patient's Medicaid number was only an ancillary part of the billing process, so § 1028A didn't apply. When the deception is about who is involved, such as opening credit in someone else's name, the statute still reaches it.

What are the penalties?

Identity theft (§ 1028(b))

• Up to 15 years if the person got anything of value totaling $1,000 or more in any one-year period, or for certain ID-document offenses.
• Up to 5 years for most other identity theft.
• Up to 20 years if done to facilitate drug trafficking or in connection with a crime of violence, or after a prior § 1028 conviction.
• Up to 30 years if done to facilitate terrorism.
• Forfeiture of personal property used or intended to be used in the offense (§ 1028(b)(5)).

Aggravated identity theft (§ 1028A(b))

• Two years in prison, or 5 years for terrorism-related felonies. The judge has no discretion on the length.
• No probation.
• Consecutive. The 2 years must run after the sentence for the other crime, not at the same time.
• No offset. The judge can't shorten the sentence for the related crime to make up for the 2 years (§ 1028A(b)(3)).
• Multiple § 1028A counts may, in the judge's discretion, run at the same time as each other, but not with any other sentence (§ 1028A(b)(4)).

Identity theft is usually charged with a fraud crime, so restitution to victims is generally required (18 U.S.C. § 3663A), along with the fines, forfeiture and supervised release that come with the fraud count.

How does sentencing work for this charge?

Section 1028 and the related fraud are sentenced under USSG §2B1.1, where the dollar loss drives most of the range (see the loss table on our wire fraud and mail fraud page). Identity-related increases include +2, with a floor of level 12, for using one person's identifying information to obtain other identification, for having 5 or more such unlawfully obtained IDs, or for device-making equipment and counterfeit access devices such as cloned cards (§2B1.1(b)(11)). The number of victims can add 2 to 6 levels (§2B1.1(b)(2)).

Section 1028A is sentenced under USSG §2B1.6: the guideline sentence is the 2-year term the statute requires. Chapters Three and Four (adjustments and criminal history) don't apply to that count. And when a person gets the § 1028A term, the judge must not also apply an identity-related enhancement to the related fraud (§2B1.6, Application Note 2), so the same conduct isn't counted twice.

Pending at the Supreme Court. In Beaird v. United States, No. 25-5343, set for argument on October 13, 2026, the Court agreed to decide whether Stinson v. United States (1993) still states the rule for how much weight courts must give the Guidelines’ commentary, the notes that follow each guideline. The answer could affect rules on this page that come from commentary rather than from the guideline text itself.

Guideline numbers on this page are from the Guidelines Manual in effect since November 1, 2025, which no longer uses “departures”: the judge calculates the range, then weighs the factors in 18 U.S.C. § 3553(a). For more depth, see How the federal Sentencing Guidelines work, at Sentencing.net, a Criminal Center site.

Statutes covered on this page

Each federal law this page covers, listed by how often it was a statute of conviction in fiscal year 2025 (U.S. Sentencing Commission data). For each one: the official section heading, what the government must prove, the penalties, and the sentencing guideline the Commission's Statutory Index assigns to it. See all statutes by title and section.

• 18 U.S.C. § 1028A
• 18 U.S.C. § 1029
• 18 U.S.C. § 1028

How do these cases usually start and move?

Identity theft cases often begin with victim complaints, bank fraud alerts, or a tax-refund, unemployment or loan-fraud investigation. Agents from the Secret Service, the U.S. Postal Inspection Service, the FBI, IRS Criminal Investigation or an agency's Office of Inspector General trace accounts, devices and IP addresses, and often search phones and computers.

A § 1028A count is often added to a fraud indictment, and because it carries a fixed 2 years, it can weigh heavily in plea talks. Whether the facts still support § 1028A after Dubin is one of the first things to check.

The usual stages of a federal case

1. 1Investigation. Agents gather records and interview witnesses, often using grand jury subpoenas. Someone the prosecutor views as a "target" may get a target letter before an indictment (Justice Manual 9-11.151, 9-11.153).
2. 2Charges. A federal felony is usually charged by indictment: a grand jury decides in private whether there is probable cause (Fed. R. Crim. P. 6, 7). Some cases start with an arrest on a criminal complaint.
3. 3First appearance and detention. After an arrest, the person goes before a magistrate judge without unnecessary delay (Fed. R. Crim. P. 5). The judge decides whether they are released or held until trial (18 U.S.C. § 3142).
4. 4Evidence and motions. The government must turn over certain evidence (Fed. R. Crim. P. 16). The defense can ask the court to suppress evidence or dismiss charges (Fed. R. Crim. P. 12).
5. 5Plea or trial. Many federal cases end in a guilty plea, which the judge must find knowing and voluntary (Fed. R. Crim. P. 11). At trial, the government must prove every element beyond a reasonable doubt, and a jury verdict must be unanimous (Fed. R. Crim. P. 31(a)).
6. 6Sentencing. A probation officer writes a presentence report, and each side can object in writing within 14 days of receiving it (Fed. R. Crim. P. 32). The judge then decides the sentence under 18 U.S.C. § 3553(a).

More on what to do at each stage: Facing federal charges? What to do now.

What defense issues come up in these cases?

• The Dubin question. Was using the other person's identity at the crux of what made the conduct criminal, or only an ancillary part of a billing or payment process for a fraud about something else, such as the value of a service?
• Real person and knowledge. Did the person know the ID belonged to a real person (Flores-Figueroa)? Was the identity synthetic or made up?
• Lawful authority. Did the other person give permission? Whether permission defeats the charge depends on the facts and on the law of the circuit.
• Listed felony. Is the related crime actually on the § 1028A(c) list, and is the proof of it solid?
• Value and dates. For § 1028's 15-year maximum, did the person obtain $1,000 or more within one year?
• Digital evidence. Were devices, accounts and IP records searched and linked to the person properly?
• Loss and victims. At sentencing, how were loss and the number of victims counted?

Every case turns on its own facts. These are issues to look at, not predictions about how any case will turn out.

What happens after a conviction?

People convicted under § 1028A before Dubin sometimes ask whether the decision helps them now. That depends on the facts, whether the issue was raised before, and timing rules for § 2255 motions, so it needs a case-by-case review.

• Appeal. A notice of appeal is usually due within 14 days after the judgment is entered (Fed. R. App. P. 4(b)(1)(A)). Many plea agreements waive the right to appeal, but in Hunter v. United States (2026) the Supreme Court held that a waiver can’t be enforced when doing so would cause a miscarriage of justice, a high bar. See federal appeals at Sentencing.net.
• A § 2255 motion. A motion asking the sentencing court to vacate, set aside or correct the sentence, for example for ineffective assistance of counsel. It is usually due within one year after the conviction becomes final (28 U.S.C. § 2255(f)). See 2255motion.com.
• Compassionate release. A motion asking the judge to reduce a prison sentence for extraordinary and compelling reasons, filed after the person asks the warden and either exhausts BOP appeals or waits 30 days (18 U.S.C. § 3582(c)(1)(A)). It can’t be used to attack the validity of the conviction itself (Fernandez v. United States (2026)). See CompassionateRelease.com.
• Clemency. The President can pardon a federal offense or commute (shorten) a federal sentence (U.S. Const. art. II, § 2). See Clemency.com.