18 U.S.C. § 1028: Prison Tiers, Fines, and 1028A Add-On

Penalties under 18 U.S.C. § 1028 for identity and document fraud run from a one-year misdemeanor cap at the low end to 30 years in federal prison at the high end, with fines up to $250,000, mandatory forfeiture of property used in the offense, and court-ordered restitution to victims. A related statute, § 1028A, can bolt an additional mandatory two years onto the sentence, served consecutively, whenever the fraud accompanied certain other federal felonies.

Prison Sentences by Tier

Section 1028 does not use a single maximum. The ceiling depends on what the defendant did, how much they gained, and whether aggravating facts are present. Five tiers cover the full range.

Up to One Year

The catch-all misdemeanor tier applies to any § 1028 offense that doesn’t meet the thresholds for the higher categories. This is where isolated, low-stakes conduct lands.¹

Up to Five Years

A five-year maximum applies to using another person’s means of identification to commit a federal offense or state felony when the gain was under $1,000 during a one-year period. It also covers possessing five or more unauthorized identification documents, along with production and transfer offenses that fall outside the 15-year tier.¹

Up to 15 Years

Fifteen years is the maximum for offenses prosecutors treat as the core of the document fraud trade:

Producing or transferring a fake birth certificate, driver’s license, personal identification card, or any document appearing to be issued by the United States.
Producing or transferring more than five identification documents, false identification documents, or authentication features in a single offense.
Possessing or transferring document-making equipment.
Using another person’s means of identification to obtain anything of value totaling $1,000 or more during any one-year period.

Up to 20 Years

Three situations push the ceiling to 20 years: the offense was committed to facilitate drug trafficking, it was connected to a crime of violence, or the defendant has a prior conviction under § 1028. The prior-conviction trigger is worth pausing on. Any second conviction under this statute moves the case into the 20-year tier, regardless of how minor the new conduct might otherwise appear.¹

Up to 30 Years

The top tier applies when the fraud facilitates an act of domestic or international terrorism. The 30-year maximum reflects Congress treating document fraud as a gateway to larger-scale attacks.¹

The Two-Year Add-On Under Section 1028A

The related aggravated identity theft statute changes the arithmetic of any § 1028 case it accompanies. Section 1028A imposes a mandatory two-year prison sentence on anyone who uses another person’s identifying information during certain enumerated felonies, including mail fraud, wire fraud, bank fraud, immigration fraud, theft of public money, and false statements to obtain firearms. There is no probation option.²

The two years must run consecutively to the sentence for the underlying felony. A judge cannot let the § 1028A term overlap and cannot reduce the underlying sentence to absorb it. A defendant who receives five years for wire fraud and is also convicted under § 1028A does seven years minimum.²

When the identity theft supports a terrorism offense, the mandatory consecutive term rises from two years to five. Prosecutors often add § 1028A to a § 1028 indictment because it locks in prison time that plea negotiations on the other counts cannot erase.

Fines

Every tier of § 1028 allows a fine on top of prison time. For any felony-level conviction under the statute, an individual defendant can be fined up to $250,000. For the one-year misdemeanor tier, the fine ceiling for an individual is $100,000.³

Forfeiture

Forfeiture is not discretionary. Any personal property used or intended to be used in committing the offense is subject to forfeiture. The court must also order the destruction or other disposition of the fraudulent authentication features, identification documents, document-making equipment, and means of identification tied to the conviction.¹ Forfeiture proceedings follow the rules used in federal drug cases, meaning the government can seize property before trial upon a showing of probable cause.

Restitution to Victims

Courts must also order restitution. Under the federal mandatory restitution statute, defendants pay for the full value of damaged or lost property, income the victim lost because of the offense, and expenses the victim incurred while participating in the investigation or prosecution, including child care, transportation, and additional lost income.⁴

The Identity Theft Enforcement and Restitution Act of 2008 expanded this further by allowing courts to include the value of the victim’s time spent recovering from the fraud, such as disputing charges, replacing documents, and repairing credit.⁵ Restitution orders are enforceable as federal judgments.

Supervised Release After Prison

The court’s authority does not end when the prison term does. Supervised release follows incarceration and functions similarly to probation. For § 1028 offenses carrying a maximum of 5 to 15 years, the supervised release term can last up to three years. For the one-year misdemeanor tier, supervised release can last up to one year.⁶ Violating the conditions can send a defendant back to prison.

When These Federal Penalties Apply

Not every fake ID or identity theft case is prosecuted federally. Section 1028 requires a jurisdictional hook: the document appears to be issued by the United States, the offense involves defrauding the United States, or the conduct affects interstate or foreign commerce (including electronic transfers) or moves through the mail.¹

The interstate commerce trigger is easy to satisfy in modern cases. Emailing a scanned fake document, buying identity information from an out-of-state seller, or using a stolen card number online all count. Cases with no interstate element are more often left to state prosecutors, where different penalty structures apply.

1
Office of the Law Revision Counsel. 18 U.S. Code 1028 – Fraud and Related Activity in Connection with Identification Documents, Authentication Features, and Information
2
Office of the Law Revision Counsel. 18 USC 1028A – Aggravated Identity Theft
3
Office of the Law Revision Counsel. 18 U.S. Code 3571 – Sentence of Fine
4
Office of the Law Revision Counsel. 18 U.S. Code 3663A – Mandatory Restitution to Victims of Certain Crimes
5
Office for Victims of Crime. Federal Identity Theft Laws
6
Office of the Law Revision Counsel. 18 USC 3583 – Inclusion of a Term of Supervised Release After Imprisonment