Aggravated Identity Theft Defense

By Elizabeth Franklin-Best, Esq., and Christopher Zoukis, JD, MBA

Aggravated identity theft is one of the most feared charges in a federal fraud case — not because it stands alone, but because of what it adds. A conviction under 18 U.S.C. § 1028A carries a mandatory two-year prison term that the judge must stack on top of the sentence for the underlying offense. That makes it a powerful tool for prosecutors and a serious problem for defendants. If you are facing a § 1028A count, an identity theft lawyer should examine whether the charge legally fits at all.

Elizabeth Franklin-Best, P.C. defends § 1028A and the fraud charges it rides on in federal courts throughout the country — and because the statute’s limits were redrawn by the Supreme Court in 2023, this is an area where appellate-level analysis pays off at the trial table. That orientation is the firm’s core strength. Our principal attorney, Elizabeth Franklin-Best, is a federal-only practitioner who has appeared in more than 330 federal proceedings, including over 100 appeals across the circuits, and who holds Best Lawyers in America’s 2026 “Best Lawyer” recognition in Appellate Practice. Section 1028A has real limits, and we defend it by enforcing every one of them.

This guide explains what aggravated identity theft is, what prosecutors must prove, the mandatory sentence it carries, and how a defense is built. It is general legal information, not legal advice. If a § 1028A count appears in your indictment or seems likely, the first step is a paid, one-hour initial consultation with our firm. This guide sits within our white-collar crime defense practice.

Quick Answer

Question	Answer
What is aggravated identity theft?	Knowingly using, possessing, or transferring another real person’s means of identification, without lawful authority, during and in relation to an enumerated federal felony.
Is it a separate crime?	No. Section 1028A attaches to a predicate felony — it cannot be charged on its own.
What sentence does it carry?	A mandatory two-year prison term that must run consecutive to the sentence for the underlying felony — five years for terrorism-related predicates.
What must the government prove?	That the defendant knew the identification belonged to a real person and that its misuse was central to the underlying offense.
What does an initial consultation cost?	It is paid and runs one hour — we use it to test whether the § 1028A count actually fits your conduct after Dubin.

Key Takeaways

• Aggravated identity theft is a sentencing enhancement in the form of a charge — it adds a fixed, mandatory two years to a federal sentence.
• It is never a stand-alone offense; it must be tied to a predicate felony from a specific statutory list.
• The two-year term is mandatory and consecutive — a judge cannot reduce it, suspend it, or run it concurrently with the underlying sentence.
• The government must prove the defendant knew the means of identification belonged to a real, actual person.
• The Supreme Court has narrowed the statute: the misuse of the identity must be at the crux of the criminal conduct, not merely incidental to it.
• Because the count carries automatic prison time, whether § 1028A legally applies is one of the most important questions in the entire case.

What Is Aggravated Identity Theft?

Aggravated identity theft, defined in 18 U.S.C. § 1028A, punishes the misuse of another person’s identity in connection with certain other federal crimes. The statute applies when a person knowingly transfers, possesses, or uses, without lawful authority, a “means of identification” of another person during and in relation to an enumerated felony. A means of identification is broad — a name, a Social Security number, a date of birth, a driver’s license or passport number, or similar identifying data.

What makes § 1028A unusual is its structure. It is not a freestanding crime. It functions as an add-on: it attaches to a predicate felony — most often a federal fraud offense — and, on conviction, forces the court to impose an additional, fixed prison term. Because that add-on is automatic and cannot be softened, the central battleground in a § 1028A case is usually not punishment but applicability: whether the charge legally fits the conduct at all.

The Section 1028A Statute

Section 1028A can only be charged alongside a predicate felony that Congress specifically listed. Those predicates include a range of federal offenses, such as:

• Mail fraud, wire fraud, and bank fraud.
• Theft of public money, property, or rewards, and theft from employee benefit plans.
• False personation of a citizen or officer of the United States.
• Fraud and false statements in connection with identification documents.
• Specified immigration offenses and Social Security-related fraud.

If there is no qualifying predicate, there can be no § 1028A conviction. And because the enhancement rises or falls with the underlying offense, a defense that defeats or weakens the predicate also undermines the aggravated identity theft count built on top of it.

What the Government Must Prove

To convict under § 1028A, the government must prove the following beyond a reasonable doubt:

• A predicate felony. The defendant committed one of the enumerated felonies that § 1028A lists.
• Use of a means of identification. The defendant knowingly transferred, possessed, or used a means of identification.
• Of another real person. The identification belonged to another actual person — and the defendant knew that.
• Without lawful authority. The defendant had no lawful authority to use the identification.
• During and in relation to the felony. The misuse of the identity was at the crux of the criminal conduct.

Two Supreme Court decisions give that list real teeth. In Flores-Figueroa v. United States, 556 U.S. 646 (2009), the Court held that the word “knowingly” extends all the way through the statute — the government must prove the defendant actually knew the means of identification belonged to another real person, not a fabricated one. And in Dubin v. United States, 599 U.S. 110 (2023), the Court rejected the government’s sweeping reading of the statute. Section 1028A does not reach every fraud that happens to involve someone’s name or number. The defendant’s use of the identity must be at the crux of what makes the conduct criminal — the identity must be the means of the fraud, not an incidental detail of a billing record or paperwork. Dubin is important enough that we give it its own section below.

Applied insight. The Dubin decision changed the landscape. Prosecutors had used § 1028A whenever another person’s name or number appeared anywhere in a fraud. After Dubin, that is not enough — and many § 1028A counts that would once have gone unchallenged now deserve a hard look at whether the identity was genuinely central to the crime.

Dubin v. United States: The Crux-of-Criminality Limit

For nearly two decades, prosecutors read § 1028A to cover almost any fraud whose paperwork contained a real person’s name or number. Dubin v. United States, 599 U.S. 110 (2023), ended that. The defendant there helped run a psychological-services practice that overbilled Medicaid for a patient’s evaluation — the claim misrepresented the qualifications of the employee who performed the testing. Because the reimbursement form naturally carried the patient’s Medicaid ID, the government added an aggravated identity theft count and argued that submitting the claim “used” the patient’s identity. A unanimous Supreme Court rejected that theory.

The Court held that a defendant “uses” another person’s means of identification “in relation to” a predicate offense only when that use is at the crux of what makes the conduct criminal. The identity must play a key role in the deception itself — the lie must be about who is involved, as when a person passes himself off as someone else or bills for services in another person’s name. Where the fraud is about how or when a service was performed, and the patient’s or customer’s identifier is just a routine billing detail, § 1028A does not apply. In Dubin itself, the deception concerned the provider’s qualifications, not the patient’s identity, so the mandatory two-year add-on could not stand.

The decision matters in practice in three ways. First, it gives the defense a legal challenge that can be raised before trial, at trial under Rule 29, and on appeal: was the identity genuinely the instrument of the fraud, or incidental to it? That question is now actively litigated in healthcare-fraud, tax-refund, and pandemic-relief prosecutions across the circuits. Second, it has changed plea dynamics — a § 1028A count that may not survive a Dubin challenge is worth far less as leverage, a point we press in negotiations during the federal criminal process. Third, for people already convicted on the broad pre-2023 theory, Dubin may open appellate or post-conviction doors, depending on the procedural posture of the case — timing rules are strict, so that assessment should happen quickly. The Ninth Circuit’s decision in United States v. Ovsepian, 113 F.4th 1193 (9th Cir. 2024), shows how far that reasoning can reach: applying Dubin, the court vacated an aggravated identity theft conviction on collateral review because the defendant’s possession of a patient file was merely ancillary to the healthcare fraud rather than the crux of it, and it held that a petitioner challenging a divisible statute under 28 U.S.C. § 2255 need establish innocence only as to the prong actually charged.

The Mandatory Two-Year Sentence

The defining feature of § 1028A is its sentence. A conviction requires the court to impose a two-year term of imprisonment — five years for predicates related to terrorism — and that term must run consecutive to any sentence imposed for the underlying felony. The judge cannot reduce it, cannot suspend it, and cannot allow it to overlap with the predicate sentence. It is, in practical effect, a mandatory minimum bolted onto whatever else the case produces.

That rigidity is exactly why prosecutors value the charge and why the defense must take it seriously from the first day. A § 1028A count converts a case that might have resolved with probation or a short sentence into one with guaranteed prison time. It also becomes a central feature of any plea negotiation: agreeing to dismiss a § 1028A count is one of the most significant concessions a prosecutor can make. Our federal sentencing practice addresses how the consecutive term interacts with the rest of a sentence.

A few Guidelines mechanics are worth knowing. The guideline for § 1028A, U.S.S.G. § 2B1.6, simply directs that the sentence is the statutory term — there is no offense-level calculation to argue about on that count. The commentary also bars double counting: when the § 2B1.6 term is imposed, the separate two-level enhancement for use of a means of identification in the underlying fraud guideline generally cannot be applied as well. And where a defendant faces multiple § 1028A counts, the statute requires each term to run consecutive to the predicate sentence but gives the court discretion to run the § 1028A terms concurrently with one another — a distinction that can be worth years.

Identity-theft allegations rarely travel alone. The same conduct often draws false statements or conspiracy counts, and the predicate fraud carries its own loss-driven guideline range. Sequencing the defense across all of those moving parts — rather than treating the § 1028A count in isolation — is where the case is usually won or lost.

Applied insight. Because the two added years are fixed, the most valuable work in a § 1028A case happens before sentencing — at the charging and negotiation stage. Whether the count survives a Dubin challenge, and whether it can be bargained away, often matters more to the outcome than anything that happens at a sentencing hearing.

Defending an Aggravated Identity Theft Case

An aggravated identity theft defense focuses on the statute’s specific requirements. A central line of defense, after Dubin, is that the use of the identity was not at the crux of the criminal conduct — that another person’s name or number was incidental to the fraud rather than the means of committing it. Another is knowledge: under Flores-Figueroa, if the government cannot prove the defendant knew the identifier belonged to a real, existing person, the count fails.

Other defenses challenge the remaining elements. The defendant may have had lawful authority to use the identification — for example, genuine consent from the person it belongs to. The identifier may have been the defendant’s own, or wholly fabricated, and so not the means of identification “of another person.” And because § 1028A depends entirely on a predicate felony, every defense to the underlying fraud charge is also, in effect, a defense to the aggravated identity theft count. We test the charge against each requirement and against the most recent Supreme Court limits. Results can never be assured in advance — anyone who tells you differently is not being straight with you — but the question we will press relentlessly is whether § 1028A applies to your conduct at all.

Why Work With Elizabeth Franklin-Best, P.C.

A § 1028A defense is statutory-interpretation work, and statutory interpretation is what appellate lawyers do all day. Elizabeth Franklin-Best litigates exclusively in the federal system: she is admitted before the United States Supreme Court and all twelve federal circuits, takes district-court cases nationwide by pro hac vice admission, and authored Reversing Your Criminal Conviction. Her 2026 Chambers USA ranking in Litigation: White-Collar Crime & Government Investigations reflects the white-collar focus this charge demands.

Section 1028A turns on close statutory questions — what counts as the crux of an offense, what the defendant knew, whether a predicate qualifies. Those are precisely the issues appellate-grade analysis is built to handle, and they recur on collateral review as well: as Ovsepian illustrates, a post-Dubin § 1028A challenge can surface on direct appeal or in a § 2255 motion, the kind of post-conviction work that anchors a federal practice spanning more than 100 appeals and dozens of habeas and § 2255 proceedings. In every § 1028A engagement we map the indictment against the statute line by line — which predicate, whose identity, what role it actually played — before deciding where to attack. This guide is part of our broader white-collar crime defense practice.

Talk With an Identity Theft Lawyer

If you are facing a § 1028A count, the question of whether that charge legally applies could be worth two years of your life — and after Dubin, it is a question with real answers. Send us the indictment and we will tell you, candidly, how strong the count looks and what we would do about it. We start with a paid, one-hour initial consultation.

Frequently Asked Questions