Federal identity theft under 18 U.S.C. § 1028 reaches the production, transfer, or possession of false identification documents — up to 15-20 years. 18 U.S.C. § 1028A (aggravated identity theft) imposes a mandatory consecutive 2-year sentence when another person's actual identity is used during certain felonies. The 2-year mandatory minimum makes § 1028A the single most dangerous count in many federal cases.
Section 1028A is the federal sentencing equivalent of an enhancement on steroids — automatic, consecutive, and not subject to downward departure or variance. Defending federal identity theft cases — particularly fraud cases where § 1028A is alleged — requires aggressive pre-trial litigation and careful plea negotiation.
Section 1028: The Identity Document Statute
18 U.S.C. § 1028 covers a range of identity-document offenses:
- (a)(1) Producing identification documents without authority — 15 years;
- (a)(2) Transferring identification documents without authority — 15 years;
- (a)(3) Possessing five or more false identification documents — 15 years;
- (a)(4) Possessing identification documents to commit fraud — 15 years;
- (a)(5) Producing or transferring document-making implements — 15 years;
- (a)(7) Possessing or using means of identification of another person to commit any unlawful activity — 15 years;
- (a)(8) Trafficking in false authentication features — 15 years.
"Means of identification" under § 1028(d)(7) is broadly defined: name, Social Security number, driver's license number, biometric data, electronic identification number, and many other identifiers.
Section 1028A: Aggravated Identity Theft
§ 1028A imposes a mandatory 2-year consecutive sentence on anyone who, "during and in relation to" any felony enumerated in § 1028A(c), "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person."
Enumerated predicate felonies include:
- Bank fraud (§ 1344);
- Wire fraud (§ 1343);
- Mail fraud (§ 1341);
- Mail theft;
- Healthcare fraud (§ 1347);
- Theft from employee benefit plans;
- Immigration document fraud;
- Most fraud and theft offenses.
The 2 years runs consecutively to any other sentence — and to other § 1028A counts (subject to the limit in United States v. Lyles).
The Dubin Limitation
The Supreme Court in Dubin v. United States, 599 U.S. ___ (2023) significantly narrowed § 1028A. The Court held that § 1028A applies only when the misuse of another's means of identification is "at the crux" of the underlying felony — meaning the use of identity is "central to the means by which the predicate offense is committed," not merely an ancillary feature.
In Dubin, a healthcare provider over-billed Medicare by inflating services rendered to actual patients. The Court rejected § 1028A liability because the patients' identities were not the "crux" of the fraud — they were merely incidental to the over-billing scheme.
Post-Dubin, defense counsel should challenge § 1028A counts in cases where:
- The fraud could have been committed against fictional or general identifiers;
- The use of an actual person's identity was incidental rather than central;
- The defendant did not "personate" the identity-holder.
Common Charging Patterns
Synthetic Identity Fraud
Combining real Social Security numbers (often from children) with fabricated names and addresses to obtain credit. § 1028A applies because the SSN belongs to a real person.
Account Takeover Fraud
Using stolen credentials to access bank, credit card, or e-commerce accounts. Each account-holder's identity supports a § 1028A count.
Tax Refund Fraud
Filing returns using stolen Social Security numbers — the IRS-CI's most common identity theft case type.
PPP and EIDL Fraud
Loan applications using stolen identities (often dead taxpayers or trafficking victims). See our PPP fraud guide.
Defenses
Dubin Defense
Identity not "at the crux" of the underlying offense. Particularly applicable in healthcare fraud, certain bank fraud, and over-billing schemes.
Lack of Knowledge
The defendant must have known the means of identification belonged to a real person. Flores-Figueroa v. United States, 556 U.S. 646 (2009) held that this knowledge is required — defendants who believed identifiers were fabricated cannot be convicted under § 1028A.
Lawful Authority
If the defendant had authority to use the identity (joint account, family use), § 1028A does not apply.
Predicate Offense Defense
If the predicate fraud charge fails, § 1028A fails. Often the most efficient path is defending the underlying fraud.
Sentencing and Plea Strategy
The 2-year mandatory minimum is not subject to:
- Variance under 18 U.S.C. § 3553(a);
- Departure under § 5K1.1 (substantial assistance);
- Acceptance of responsibility reduction;
- Application of the safety valve.
Multiple § 1028A counts can be consecutive to each other but the Sentencing Guidelines limit the total stack. United States v. Vidal-Reyes, 562 F.3d 43 (1st Cir. 2009) and similar circuit decisions limit total mandatory time even for multi-count convictions.
The primary defense strategy in § 1028A cases is to negotiate dismissal of the § 1028A count in exchange for plea to the underlying offense — the difference can be 24 months of mandatory time.
What to Do If You Are Under Investigation or Charged
- Do not speak with federal agents — FBI, DEA, ATF, IRS-CI, HSI, USPS — without an attorney. Even small lies can become independent § 1001 charges.
- Do not destroy or alter records — destruction is obstruction under 18 U.S.C. § 1519, a 20-year felony.
- Preserve all communications — emails, texts, messaging apps, financial records — but do not delete anything.
- Do not contact witnesses or co-defendants — even social contact can become witness tampering.
- Engage federal defense counsel immediately — call (214) 466-1398. We are admitted in TXND and TXED.
Frequently Asked Questions
What is the difference between § 1028 and § 1028A?
§ 1028 is the substantive identity-document offense — possession, production, transfer of false IDs. § 1028A is a sentencing enhancement requiring mandatory 2-year consecutive when another person's identity is used in certain enumerated felonies.
Can the 2-year mandatory minimum be reduced?
Not by variance, departure, or acceptance of responsibility. The only way to avoid the 2 years is acquittal or dismissal. Plea negotiation often focuses on dropping the § 1028A count.
Does § 1028A apply if I used the identity of someone who was deceased?
Yes. § 1028A reaches "another person" — including deceased individuals. The Flores-Figueroa knowledge requirement still applies.
Can multiple § 1028A counts run consecutively?
Yes — each count adds 2 years. But Sentencing Guidelines and circuit case law limit total stacking in multi-count cases.
What is the Dubin v. United States case about?
A 2023 Supreme Court decision narrowing § 1028A to require that misuse of another's identity be "at the crux" of the predicate offense. Significantly limits § 1028A in over-billing and ancillary-use cases.
Speak With a Frisco Criminal Defense Attorney
If you or a loved one is facing federal defense charges in Frisco, Collin County, or anywhere in the Dallas-Fort Worth metroplex, the time to act is now. L and L Law Group attorneys are available 24 hours a day, 7 days a week. Call (214) 466-1398 for a free, confidential consultation, or submit your case online and a licensed attorney will contact you directly.
This article is general information, not legal advice. Texas and federal criminal law are complex and fact-specific — please consult a licensed attorney about your particular situation. Past results do not guarantee future outcomes.