Federal Identity Theft Defense Lawyer Arizona | 18 U.S.C. Â§ 1028A

Federal Copyright Infringement Defense

Defense against federal identity theft and aggravated identity theft charges carrying
mandatory consecutive sentences in the District of Arizona.

Myles A. Schneider

30+ Years Federal Defense

Facing Federal Identity Theft Charges? We Can Help.

You’re facing aggravated identity theft charges and they’re telling you there’s a mandatory two-year sentence on top of everything else.

The federal identity theft statute is brutal. Under 18 U.S.C. 1028A the government can add a mandatory two years to any fraud conviction if they claim you used someone else’s identifying information. That time runs consecutive meaning it gets added on top of whatever other sentence you receive. No parole. No early release.

I know how to challenge aggravated identity theft charges. There are defenses that work. The government has to prove you knew the identifying information belonged to a real person. I’ve gotten these charges dropped in cases where my clients thought they were using fictitious information. Let me review your case.

Knowingly Transferred, Possessed or Used: The defendant must have knowingly transferred, possessed or used a means of identification.

Without Lawful Authority: The use of the identification must have been without the lawful authority of the person to whom it belongs.

Means of Identification of Another Person: The identification must belong to an actual, real person (living or deceased), not a fabricated identity.

During and in Relation to an Enumerated Felony: The identity theft must have occurred during and in relation to one of the specific felony violations listed in the statute (e.g., wire fraud, mail fraud, bank fraud, theft of public money, immigration offenses) [1].

The interpretation of 18 U.S.C. § 1028A has been significantly shaped by recent Supreme Court decisions, which have narrowed its previously broad application by federal prosecutors.

_Flores-Figueroa v. United States_ (2009): The Supreme Court ruled that the government must prove the defendant *knew* the means of identification actually belonged to another real person. If a defendant believed they were using a completely fabricated or fake identity, they cannot be convicted of aggravated identity theft under this statute [2].

Sentencing Guidelines and Mandatory Minimums

The sentencing structure for Aggravated Identity Theft is uniquely punitive and inflexible, making it a powerful tool for federal prosecutors.

The defining feature of 18 U.S.C. § 1028A is its mandatory penalty. A conviction carries a mandatory minimum sentence of **two years in federal prison** [1]. Crucially, this two-year sentence must run *consecutively* (in addition to) any sentence imposed for the underlying predicate felony (e.g., the wire fraud or bank fraud) [4].

No Probation: A judge cannot sentence a defendant to probation for a § 1028A conviction [1].

No Concurrent Time: The two years cannot be served concurrently with the sentence for the underlying crime [1].

Terrorism Enhancement: If the identity theft is committed in relation to a terrorism offense, the mandatory consecutive sentence increases to five years [1].

While § 1028A dictates the mandatory consecutive time, the underlying fraud or theft offense is typically calculated using the United States Sentencing Guidelines (USSG) § 2B1.1.

Base Offense Level: Under § 2B1.1, basic economic offenses like fraud typically start with a base offense level of 6 or 7 [5].

Specific Offense Characteristics: The offense level is then heavily enhanced based on specific characteristics, most notably the **amount of financial loss** caused by the scheme. For example, a loss exceeding $100,000 adds 8 points, while a loss exceeding $1,000,000 adds 14 points [5].

Focus on Organized Schemes: The DOJ increasingly targets large-scale, organized identity theft rings, particularly those operating across state lines or internationally.

Healthcare Fraud Task Forces: Identity theft is frequently prosecuted in connection with healthcare fraud. The DOJ has established specialized strike forces to combat schemes where patient identities are stolen to bill Medicare or Medicaid for unrendered services.

Pandemic Relief Fraud: In recent years, there has been a massive surge in prosecutions related to the theft of identities to fraudulently claim COVID-19 relief funds, such as Paycheck Protection Program (PPP) loans and unemployment benefits.

High Conviction Rates: According to the U.S. Sentencing Commission, 99.0% of individuals convicted under § 1028A are sentenced to federal prison, with an average sentence of 54 months (reflecting the combined sentence of the underlying crime and the mandatory consecutive two years) [4].

Immigration-Related Identity Theft: Given Arizona’s proximity to the border, the U.S. Attorney’s Office for the District of Arizona frequently prosecutes identity theft cases linked to immigration offenses. This includes the use of stolen identities (such as Social Security numbers) by undocumented individuals to secure employment or government benefits.

Cross-Border Financial Crimes: The district sees a high volume of cases involving transnational criminal organizations that utilize identity theft to facilitate money laundering, drug trafficking, and wire fraud schemes.

Aggressive Prosecution: Federal prosecutors in Phoenix and Tucson are known for aggressively utilizing the § 1028A enhancement to secure leverage in plea negotiations, often charging multiple counts to maximize potential prison time.

Primary Agencies: Investigations are usually led by the Federal Bureau of Investigation (FBI), the United States Secret Service (USSS), Homeland Security Investigations (HSI), or IRS Criminal Investigation (IRS-CI), depending on the nature of the underlying fraud.

Triggers: Investigations are often triggered by reports from financial institutions, large-scale data breaches, suspicious activity reports (SARs), or referrals from state and local law enforcement when a case crosses state lines or involves significant financial loss.

Gathering Evidence: Federal agents utilize sophisticated techniques, including:

Subpoenas for bank records, IP addresses, and email communications.

Search warrants for electronic devices and physical premises.

Cooperating witnesses and confidential informants.

Undercover operations and surveillance.

Financial Fraud Rings: Individuals purchasing stolen credit card numbers or Social Security numbers on the dark web to open fraudulent bank accounts, secure loans, or file false tax returns.

Healthcare Fraud: Medical professionals or clinic operators using patient information to bill insurance programs for services that were never provided.

Employment Fraud: Undocumented workers using the Social Security numbers of U.S. citizens to pass E-Verify checks and obtain employment.

Corporate Embezzlement: Employees with access to sensitive customer or employee data (like HR or payroll personnel) stealing that information to commit fraud.

Government Benefit Fraud: Using stolen identities to claim unemployment benefits, FEMA assistance, or other government subsidies.

The _Dubin_ Defense (Lack of “Crux”): Following the 2023 Supreme Court ruling, a primary defense is arguing that the use of the identity was merely peripheral to the underlying crime, not the “crux” of the offense. If the identity was used legitimately but the billing was fraudulent, § 1028A may not apply [3].

The _Flores-Figueroa_ Defense (Lack of Knowledge): The defense can argue that the government cannot prove the defendant *knew* the identification belonged to a real person. If the defendant reasonably believed the ID was entirely fabricated, the aggravated charge must be dismissed [2].

Challenging the Predicate Offense: Because § 1028A requires a conviction on an underlying enumerated felony, successfully defending against the primary fraud charge (e.g., wire fraud) automatically defeats the aggravated identity theft charge.

Suppressing Evidence: Filing motions to suppress evidence obtained through illegal search and seizure, such as challenging the validity of warrants used to seize computers or financial records.

Negotiating Count Reductions: In cases where conviction is likely, aggressively negotiating with prosecutors to drop the § 1028A counts in exchange for a plea to the underlying fraud, thereby avoiding the mandatory consecutive sentences.

Restitution: Defendants are almost always ordered to pay full restitution to the victims of the financial fraud, which can amount to hundreds of thousands or millions of dollars. This debt cannot typically be discharged in bankruptcy.

Asset Forfeiture: The government will seize any assets (homes, vehicles, bank accounts) that are traceable to the proceeds of the crime.

Loss of Professional Licenses: Convictions usually result in the automatic revocation of professional licenses (e.g., medical, legal, real estate, financial securities).

Immigration Consequences: For non-citizens, aggravated identity theft is considered an aggravated felony and a crime involving moral turpitude, leading to virtually certain deportation and a permanent bar from re-entering the United States.

Supervised Release: Following prison, defendants face years of restrictive supervised release, which often includes strict limitations on internet access, financial activities, and employment.

Can I get probation for Aggravated Identity Theft under 18 U.S.C. § 1028A?

A: No. Federal law explicitly prohibits judges from sentencing a defendant to probation for a conviction under 18 U.S.C. § 1028A. The statute requires a mandatory minimum sentence of two years in federal prison, which must be served consecutively to any other sentence.

What is the difference between standard identity theft and "aggravated" identity theft?

A: Standard identity theft (18 U.S.C. § 1028) involves the fraudulent use of identification documents and carries varying penalties based on the specifics of the crime. “Aggravated” identity theft (18 U.S.C. § 1028A) is an enhancement charged when the identity theft is committed *during and in relation to* specific serious federal felonies, like wire fraud or bank fraud. It carries a mandatory, consecutive two-year prison sentence.

Does the government have to prove I knew the identity belonged to a real person?

A: Yes. Following the Supreme Court’s decision in _Flores-Figueroa v. United States_, prosecutors must prove beyond a reasonable doubt that you knew the means of identification you used actually belonged to another real person, rather than being a completely fabricated or fake identity.

How does the recent _Dubin_ Supreme Court case affect my charges?

A: The 2023 _Dubin_ decision significantly narrowed the application of § 1028A. The Court ruled that the use of the identity must be at the “crux” of the criminal conduct. If you used someone’s real name legitimately but committed fraud in another way (like overbilling for a legitimate service), you may have a strong defense against the aggravated identity theft charge.

Will I be deported if convicted of federal identity theft?

A: If you are not a U.S. citizen, a conviction for aggravated identity theft will almost certainly lead to deportation. It is generally classified as an aggravated felony and a crime involving moral turpitude under immigration law, which triggers mandatory removal proceedings.

How long do federal agencies investigate before making an arrest?

A: Federal investigations by agencies like the FBI or Secret Service are meticulous and can last for months or even years. They often gather extensive financial records, digital evidence, and witness testimony before ever contacting the target or unsealing an indictment.

Can my lawyer negotiate away the mandatory two-year sentence?

A: A judge cannot reduce or dismiss the mandatory two-year sentence once you are convicted under § 1028A. However, an experienced federal defense attorney can negotiate with prosecutors *before* trial or a plea agreement to have the § 1028A charges dropped entirely in exchange for a plea to the underlying fraud charges, thereby avoiding the mandatory consecutive time. — ### References [1] 18 U.S.C. § 1028A – Aggravated identity theft. Legal Information Institute, Cornell Law School. https://www.law.cornell.edu/uscode/text/18/1028A [2] Flores-Figueroa v. United States, 556 U.S. 646 (2009). [3] Dubin v. United States, 599 U.S. 110 (2023). Oyez. https://www.oyez.org/cases/2022/22-10 [4] 18 USC 1028 Federal Identity Theft: The Consecutive Sentence Trap That Doubles Prison Time. Spodek Law Group. https://www.nyccriminalattorneys.com/18-usc-1028-federal-identity-theft-the-consecutive-sentence-trap-that-doubles-prison-time-2/ [5] Federal Sentencing for White Collar Crimes: USSG 2B1.1. Tim Anderson Law. https://timandersonlaw.com/blog/federal-sentencing-white-collar-crimes-ussg-2b11/

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Myles A. Schneider

30+ Years Federal Defense Experience

U.S. Army Veteran (82nd Airborne)

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Federal Copyright Infringement Defense

Myles A. Schneider

Facing Federal Identity Theft Charges? We Can Help.

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