Federal prosecutors charged you with fraud, and they added aggravated identity theft under 18 U.S.C. § 1028A. That second charge adds a mandatory 2 years of prison, consecutive to anything else, not subject to suspension. It is often the single most impactful charge in the case. Beating § 1028A, or the recent Supreme Court decision in Dubin that narrowed it, is often the defense priority. Here is the framework.
Aggravated identity theft under 18 U.S.C. § 1028A is one of the most consequential statutes in modern federal white collar practice. It adds a mandatory 2-year consecutive sentence to certain predicate offenses when the defendant used another person’s identification. Recent Supreme Court jurisprudence has narrowed its reach, providing defense opportunities that did not exist before.
At The Law Offices of Haskell and Dyer, we handle Calvert County federal identity theft defense with attention to § 1028A challenges. Here is what defendants need to understand.
The Statutory Framework
Section 1028A applies when:
- The defendant is convicted of a predicate offense
- The defendant knowingly transferred, possessed, or used
- Without lawful authority
- A means of identification of another person
- During and in relation to the predicate offense
The penalty is 2 years consecutive to the predicate offense sentence. For a second or subsequent § 1028A offense, 5 years consecutive.
For the complete Maryland and federal white collar framework, see our cornerstone: Calvert County White Collar Crime Defense: The Complete Guide.
The Predicate Offenses
Section 1028A applies to specific predicate offenses, including:
- Theft of public money or government property (18 U.S.C. § 641)
- Theft from interstate shipment (§ 659)
- Theft of employee welfare benefit plan funds (§ 664)
- Theft from certain federal health programs (§ 669)
- Mail fraud (§ 1341)
- Wire fraud (§ 1343)
- Bank fraud (§ 1344)
- Identity fraud (§ 1028)
- Credit application fraud (§ 1029)
- Certain offenses against immigration
- Certain passport and visa offenses
- Social Security fraud (§ 408)
- Tax offenses in specific contexts
The Dubin Narrowing
In Dubin v. United States (2023), the Supreme Court narrowed § 1028A’s application. The Court held that § 1028A applies only when the use of another person’s identification is “at the crux” of the underlying crime, not when it is merely ancillary.
Before Dubin, prosecutors charged § 1028A broadly whenever any use of another person’s identification occurred during a predicate offense. After Dubin, the use must be central to the fraud itself. This creates significant defense opportunities in cases where:
- The identification was used only for billing or payment processing
- The identification was incidental to the underlying fraud
- The fraud could have succeeded without the specific identification use
- The identification was not what made the fraud possible
Why Dubin matters: A healthcare fraud defendant who billed using a patient’s real information (not fraudulent) can no longer be automatically charged with § 1028A just because the patient’s name was in the billing. The identity use must be “at the crux” of the fraud. Defense counsel experienced in § 1028A can sometimes eliminate the charge entirely through pretrial litigation or in plea negotiation.
Common Scenarios
Healthcare Fraud Cases
Medical practices that bill using patient information face § 1028A exposure when the billing is fraudulent. Post-Dubin, defense counsel can argue that using real patient names was incidental to the billing fraud rather than at its crux.
Tax Fraud Cases
Preparing false returns using real taxpayer information can produce § 1028A charges. Defense analysis addresses whether the specific use meets the post-Dubin standard.
Unemployment and Benefits Fraud
Fraudulent claims using real identities (either real identity of the claimant or stolen identities) commonly produce § 1028A charges.
Financial Fraud Cases
Bank fraud, wire fraud, and credit card fraud cases involving use of real identities almost always include § 1028A counts.
Employment-Related Fraud
Cases where defendants used another person’s Social Security number or other identification to secure employment, benefits, or tax advantages.
The “Without Lawful Authority” Question
Section 1028A requires use “without lawful authority.” Defense counsel addresses:
- Whether the person whose identity was used actually consented
- Whether the defendant had any authorization for the use
- Whether the specific use fell within or outside any authorization
- Whether the defendant reasonably believed they had authorization
The “Knowingly” Element
Section 1028A requires knowing use of identification. In Flores-Figueroa v. United States (2009), the Supreme Court held this extends to knowledge that the identification belongs to another actual person. Defense counsel can argue the defendant did not know the identification was real, particularly in cases involving:
- Synthetic identities that combine real and fabricated information
- Fictitious identities created by the defendant
- Purchased stolen identities where the defendant did not know if they were real
The Plea Negotiation Reality
Federal prosecutors often use § 1028A as negotiation leverage. They may offer to drop the § 1028A count in exchange for a plea to the underlying predicate offense. Given the 2-year mandatory consecutive sentence, this is often worth serious consideration even when the defendant has defenses to the underlying charge.
Defense counsel strategy often involves:
- Attacking § 1028A through pretrial motions (Dubin-based challenges)
- Creating negotiation pressure through strong defense posture
- Negotiating plea agreements that eliminate § 1028A
- Evaluating whether trial exposure on § 1028A outweighs certainty through plea
The Sentencing Structure
If § 1028A survives to conviction:
- The 2-year sentence runs consecutive to the predicate sentence
- It cannot be reduced through guideline calculations or departures
- It cannot run concurrent with other § 1028A counts (multiple § 1028A can be stacked in certain circumstances, but within limits)
- It cannot be suspended
- It applies even to defendants who would otherwise receive probation on the predicate
Defense Strategies
- Pretrial challenges based on Dubin “at the crux” analysis
- “Without lawful authority” challenges
- “Knowingly” challenges, including under Flores-Figueroa
- Challenges to the underlying predicate offense
- Strategic plea negotiation to eliminate § 1028A
- Factual investigation of the specific identification uses
- Coordination with predicate offense defense
The § 1028A priority: Because of the mandatory 2-year consecutive sentence, beating § 1028A or negotiating its dismissal is often the most important objective in the entire case. A predicate fraud conviction with § 1028A produces substantially more prison time than the same predicate without it. Focused defense work on this single charge can transform the case.
Frequently Asked Questions
Real questions Calvert County clients facing § 1028A charges ask us. Call 301-627-5844 if your situation is not covered here.
What is 18 U.S.C. § 1028A and why is it so serious?
Section 1028A is the federal aggravated identity theft statute. It adds a mandatory 2-year prison sentence on top of certain underlying fraud convictions, served consecutively, not concurrently. It cannot be suspended, probated, or reduced through guideline departures. That mandatory consecutive structure makes it one of the most consequential single charges in federal white collar practice.
How did the Supreme Court’s Dubin decision change § 1028A?
In Dubin v. United States (2023), the Court held that § 1028A applies only when the use of another person’s identification is “at the crux” of the underlying crime, not merely incidental to it. Before Dubin, any use of someone’s identifying information during a fraud could trigger the charge. After Dubin, the identity use must be central to what makes the fraud succeed. That has opened real defense ground in healthcare billing, tax preparation, and other cases where names appear in records but are not the engine of the fraud.
Can § 1028A be charged without an underlying fraud conviction?
No. Section 1028A is a sentencing enhancement that requires a predicate conviction from a specific list (mail fraud, wire fraud, bank fraud, healthcare fraud, immigration offenses, and others). If the predicate falls or is reduced to something not on the list, § 1028A goes with it. That linkage is part of what makes defense work on the predicate so important.
Does it matter if I knew the identification belonged to a real person?
Yes. Under Flores-Figueroa v. United States (2009), the government must prove you knew the identification belonged to an actual person, not a fictitious one. This matters in cases involving purchased stolen identities, synthetic identities that mix real and fabricated information, or names the defendant assumed were fake. We test that knowledge element hard whenever the facts allow.
Can prosecutors stack multiple § 1028A counts against me?
Sometimes. Multiple § 1028A counts can apply when the conduct involved separate uses of different people’s identification. But there are limits: the Sentencing Guidelines and DOJ policy both restrict how aggressively multiple counts can be charged or run consecutively. Defense counsel pushes on grouping arguments to limit the total mandatory time when multiple counts survive.
Should I plead to the underlying fraud to get § 1028A dropped?
It is one of the most common and most valuable negotiation outcomes in federal practice. Prosecutors regularly agree to drop § 1028A in exchange for a plea to the predicate, because the 2-year mandatory adder is leverage they prefer to trade rather than litigate. Whether that trade is right for you depends on the strength of your defense to the predicate, the loss amount, and your guideline exposure with and without § 1028A. We work that math case by case.
What does “without lawful authority” mean in § 1028A?
The statute punishes use of another person’s identification “without lawful authority.” That phrase is contested at the edges. We push on whether the person whose identity was used actually consented, whether you reasonably believed you had authorization, and whether the specific use fell inside or outside any authorization you did have. In domestic, business partner, and family member cases, that authorization question can be the whole defense.
Does the 2-year consecutive sentence ever get reduced?
Not through ordinary guideline calculations or § 3553(a) variances. The mandatory minimum is what it is once § 1028A is on the judgment. But there are paths: a successful § 5K1.1 substantial assistance motion can drop below the mandatory; a Rule 35 motion after sentencing can do the same; and a Dubin-based post-conviction challenge can vacate § 1028A entirely in the right case. Beating it on the front end is far easier than vacating it after.
Federal Aggravated Identity Theft Charge?
Post-Dubin defense opportunities exist. We handle these charges with specialist attention. Confidential consultation.
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This article is for general information only and does not constitute legal advice. Contacting our firm does not create an attorney-client relationship until a formal agreement is signed.
