What are the legal elements and penalties of aggravated identity theft under federal law?
Executive summary
Aggravated identity theft is a federal sentencing enhancement that makes it a separate, mandatory-additional offense when someone knowingly transfers, possesses, or uses another person’s identifying information during and in relation to certain predicate felonies, carrying a mandatory consecutive prison term—generally two years, or five years if tied to specified terrorism-related predicate offenses (18 U.S.C. §1028A) [1] [2] [3]. The law focuses on three core conduct elements plus knowledge and a defined set of qualifying predicate crimes, and federal data show its use in prosecutions has grown over time [2] [3] [4].
1. What the statute requires: the conduct elements defined
The statute criminalizes three specific acts—transferring, possessing, or using—“a means of identification” of another person, and it requires that these acts occur “during and in relation to” an enumerated federal felony (18 U.S.C. §1028A) [1] [2]. The term “means of identification” is drawn from the broader identity-theft definitions in federal law and includes items like Social Security numbers and other identifying data used to distinguish an individual, as clarified in related identity statutes and agency guidance [2] [5].
2. The knowledge requirement: Flores‑Figueroa and proof the ID belonged to another
Supreme Court precedent has tightened the mens rea: the government must prove the defendant knew he was transferring, possessing, or using the identification, knew he had no lawful authority, and knew the identification belonged to another person—so mere negligent misuse is not enough; specific awareness is required (Flores‑Figueroa discussed in Congressional and sentencing materials) [2]. Defense practitioners therefore often raise lack-of-knowledge arguments to contest the aggravated charge [2] [6].
3. Predicate offenses and scope: more than a dozen, practically dozens
Aggravated identity theft only applies when the ID misuse is tied to one of the statute’s enumerated predicate felonies—Congress and DOJ materials reference dozens of qualifying federal felonies (more than 60 predicate offenses are cited in reporting on the statute), and a separate five‑year terrorism-enhanced version relies on the terrorism predicate list in 18 U.S.C. §2332b(g)(B) [2] [5]. That design intentionally links identity enhancement to serious underlying criminal schemes—ranging from frauds to immigration and benefit-theft offenses [5].
4. Mandatory minimums and consecutive sentencing: the harsh mechanics
The hallmark of §1028A is mandatory additional prison time: ordinarily a two‑year mandatory minimum that must be imposed in addition to the sentence for the underlying felony and must run consecutively to any other imprisonment imposed (i.e., the §1028A term is added on rather than concurrent) [1] [3]. If the identity conduct relates to one of the terrorism-specific predicates the mandatory consecutive term is five years [1] [2]. The U.S. Sentencing Commission and Congressional reports repeatedly emphasize the consecutive and mandatory character of the penalty [3] [4].
5. How it plays out in practice: prevalence, prosecutorial incentives, and criticisms
Federal sentencing data show the use of §1028A has grown—its share of identity‑theft convictions roughly doubled in some periods—making it a frequently charged adjunct in fraud and healthcare fraud cases where identifying information is used to bill or obtain benefits [4] [7]. Prosecutors favor it because it guarantees a fixed minimum punishment and increases overall exposure, while defenders highlight that the mandatory consecutive term can produce sentences disproportionate to the defendant’s role, especially when layered on top of long fraud terms; sentencing reports and legal commentaries reflect that tension [4] [2].
6. Defenses, limits, and open questions
Common defenses echo the statute’s elements: lack of knowledge that the ID belonged to another, lawful authority to use the ID for a purpose, or absence of an enumerated predicate felony connection [2] [6]. Secondary sources—defense blogs and law firms—sometimes discuss much longer potential punishments tied to underlying crimes or other provisions (e.g., broad discussions of 18 U.S.C. §1028 penalties), but the statutory text and Sentencing Commission materials clearly identify the §1028A enhancement as the two‑year (or five‑year terrorism) consecutive mandatory term; spellings-out of extremely long maximums generally reflect aggregations with other charges rather than §1028A alone [1] [3] [8].
Limitations of this account: this reporting synthesizes statute language, Congressional and Sentencing Commission analysis, and practice‑oriented commentary supplied in the sources; a complete statutory recital, the current list of every enumerated predicate, and case-by-case outcomes are beyond the excerpts provided here and would require consulting the full code and case law.