Aggravated identity theft, 18 U.S.C. § 1028A, is often added to federal fraud indictments. It carries a mandatory two-year prison sentence that must run consecutively to the sentence for the underlying fraud, and the judge cannot shorten the fraud sentence to make up for it.
This guide explains what § 1028A requires, how the Supreme Court has narrowed it, and why it often becomes the central issue in plea negotiations in the Eastern and Western Districts of Missouri.
The charge
What is aggravated identity theft under 1028A?
Using another person’s means of identification during and in relation to certain federal felonies.
Section 1028A applies when a person, during and in relation to a listed felony, knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person. The listed felonies include wire fraud, mail fraud, bank fraud, and many other fraud and false statement offenses.
A “means of identification” is broad. It includes a name, Social Security number, date of birth, driver’s license number, account numbers, and similar identifiers of a real person.
The penalty
What is the sentence for aggravated identity theft?
Two years, mandatory and consecutive.
Mandatory two years
The sentence is a fixed two years in prison, or five years for certain terrorism-related offenses. Probation is not allowed.
Consecutive
The two years must run consecutively to any other sentence, including the sentence for the underlying fraud.
No offset
The judge may not reduce the fraud sentence to compensate for the § 1028A term.
Multiple counts
When there are several § 1028A counts, the court has discretion to run those counts concurrently with each other, though each still runs consecutively to the other offenses.
Narrowed
How has the Supreme Court limited 1028A?
Two decisions set important limits.
- Knowledge that the ID belonged to someone real. In Flores-Figueroa v. United States (2009), the Court held the government must prove the person knew the means of identification belonged to another person.
- The identity use must be at the crux of the crime. In Dubin v. United States (2023), the Court held that § 1028A applies only when the use of another person’s identity is at the crux of what makes the underlying conduct criminal, not when a name or number is merely part of how a fraud was billed or carried out.
Dubin is especially important for fraud cases involving overbilling, false statements about services, or schemes where real people’s information appears in records but the deception was about something else. Whether a § 1028A count survives after Dubin is often the first question to analyze.
Defenses
How do you defend a 1028A charge?
By attacking the predicate, the knowledge, and the connection.
- No predicate felony. If the underlying fraud is not proven, § 1028A falls with it.
- Knowledge. The government must prove the person knew the identifier belonged to a real person.
- Not the crux. Under Dubin, incidental use of a name or number is not enough.
- Negotiation. Because the two years are mandatory and consecutive, dismissal of the § 1028A count is often the most valuable term in a fraud plea.
See federal wire and mail fraud and federal fraud investigations.
FAQ
Aggravated identity theft questions
Is aggravated identity theft a mandatory minimum?
Yes. It carries a mandatory two-year sentence, consecutive to any other sentence, with no probation.
What is the difference between identity theft and aggravated identity theft?
Aggravated identity theft under § 1028A is tied to a listed underlying felony, such as wire or bank fraud, and carries the mandatory consecutive two years. Other identity theft offenses under federal and Missouri law carry different penalties.
Does using a coworker’s login count as aggravated identity theft?
It depends. After Dubin v. United States, the use of another person’s identity must be at the crux of what makes the conduct criminal. The facts of how the information was used decide the question.
Can multiple 1028A counts run at the same time?
The court may run multiple § 1028A counts concurrently with each other, but each must still run consecutively to the sentences for other offenses.
Can the judge reduce my fraud sentence because of the 1028A time?
No. The statute prohibits the court from reducing the sentence for the underlying felony to compensate for the § 1028A term.
See our federal criminal defense page, or call 573-638-8529.
Talk to us
Two years that cannot be shortened.
If a § 1028A count has been charged or threatened in your Missouri federal case, call to talk through whether it holds up.
Attorney advertising. The choice of a lawyer is an important decision and should not be based solely upon advertisements. This article is general information about 18 U.S.C. § 1028A as of October 2026, not legal advice, and it does not create an attorney-client relationship. The outcome of any case depends on its facts.
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