A conviction under 18 U.S.C. § 1028A carries a mandatory two-year federal prison sentence that runs on top of whatever punishment the court imposes for the underlying felony. The penalties under 18 U.S.C. 1028A are unusually rigid: no probation, no concurrent service with the predicate sentence, and no downward adjustment by the judge. When the underlying crime is a federal terrorism offense, the mandatory add-on becomes five years instead of two.
The Mandatory Two-Year Prison Term
The sentencing structure here is among the most rigid in federal criminal law. A conviction triggers a flat two-year prison term the judge has no power to shorten.1Office of the Law Revision Counsel. 18 USC 1028A – Aggravated Identity Theft Probation is explicitly forbidden. The two years must run consecutively, meaning the defendant serves the sentence for the underlying felony first and then begins the identity theft term.
Judges are also barred from shaving time off the predicate sentence to offset the extra two years. If the guideline range on a wire fraud count would ordinarily produce a 36-month sentence, a 1028A conviction on top of that means 36 months plus 24 months, not 36 months with the 1028A time folded in. The statute functions as a pure add-on.
When the Add-On Becomes Five Years
If the qualifying felony is a federal terrorism offense listed in 18 U.S.C. § 2332b(g)(5)(B), the mandatory consecutive term increases from two years to five.1Office of the Law Revision Counsel. 18 USC 1028A – Aggravated Identity Theft The terrorism enhancement reaches the use of false identification documents as well, not just identifying information tied to a real person.
Multiple Counts and Concurrent Time
There is one narrow flexibility. When a defendant is convicted on more than one count of aggravated identity theft, the court has discretion to run those 1028A sentences concurrently with each other.1Office of the Law Revision Counsel. 18 USC 1028A – Aggravated Identity Theft The Sentencing Commission’s guidelines under § 2B1.6 direct courts to exercise this discretion in line with applicable policy statements.2United States Sentencing Commission. USSG 2B1.6 Aggravated Identity Theft
So a defendant convicted on five separate 1028A counts might serve all five concurrently for a combined two years of identity theft time, rather than ten years stacked end to end. But every one of those terms still runs consecutively to the sentence for the underlying felonies. The concurrent option applies only among the 1028A counts themselves.
The Only Way Below the Minimum
The sole mechanism for getting below the mandatory two years is a government-filed motion for substantial assistance under 18 U.S.C. § 3553(e). If the prosecution certifies that a defendant provided meaningful cooperation, the court gains authority to impose a sentence below the floor. Without that motion, the judge cannot go lower, no matter how sympathetic the circumstances.
This dynamic hands prosecutors significant leverage. Dropping a 1028A count entirely, or agreeing to file a substantial-assistance motion, is a concrete and predictable sentencing benefit a defendant can weigh against the risk of trial.
Fines, Special Assessment, and Restitution
Prison time is the headline consequence, but the financial penalties add up. As a felony conviction, aggravated identity theft exposes an individual defendant to a fine of up to $250,000.3Office of the Law Revision Counsel. 18 USC 3571 – Sentence of Fine If the defendant profited from the crime or the victim suffered financial losses, the fine can climb to twice the gross gain or twice the gross loss, whichever is greater. Each felony count also carries a mandatory $100 special assessment.4Office of the Law Revision Counsel. 18 USC 3013 – Special Assessment on Convicted Persons
Restitution can be the most financially significant piece. For offenses under 18 U.S.C. § 1028A, a court may order the defendant to reimburse the victim for the value of time reasonably spent trying to undo the damage.5Office of the Law Revision Counsel. 18 USC 3663 – Order of Restitution That includes hours spent disputing fraudulent charges, correcting credit reports, replacing documents, and dealing with government agencies. Separately, the Mandatory Victims Restitution Act can require restitution for any identifiable victim who suffered a financial loss from fraud or property offenses, which covers most predicate crimes that lead to aggravated identity theft charges.6Office of the Law Revision Counsel. 18 USC 3663A – Mandatory Restitution to Victims of Certain Crimes
What Triggers These Penalties
The statute functions as a sentencing enhancement rather than a standalone crime. Prosecutors can only bring it alongside one of the qualifying federal felonies the statute lists, which include theft of government property, fraud and false statements under Chapter 47, mail fraud, wire fraud, bank fraud, healthcare fraud, various immigration offenses, Social Security fraud, and financial privacy violations under the Gramm-Leach-Bliley Act.1Office of the Law Revision Counsel. 18 USC 1028A – Aggravated Identity Theft
To convict, the government must prove four things beyond a reasonable doubt. The defendant knowingly transferred, possessed, or used someone else’s identifying information. The defendant did so without authority. The conduct happened during and in relation to one of the qualifying felonies. And the defendant knew the identifying information belonged to a real person.
That last element comes from the Supreme Court’s unanimous decision in Flores-Figueroa v. United States, which held that “knowingly” applies to every element of the offense, including the fact that the identification belongs to another actual human being.7Legal Information Institute. Flores-Figueroa v. United States Someone who used a randomly generated Social Security number that happened to match a real person’s number may have a defense if they had no idea the number belonged to anyone. The Ninth Circuit has separately ruled that “another person” includes deceased individuals, so the government does not need to prove the victim was alive at the time of the offense.8Ninth Circuit District and Bankruptcy Courts. Fraud in Connection with Identification Documents – Aggravated Identity Theft 18 USC 1028A
The “during and in relation to” language also has teeth. Courts require a genuine connection between the identity theft and the predicate felony. A defendant who commits wire fraud and happens to possess an unrelated stolen ID can challenge whether the identity theft actually furthered the fraud.
Why the Charge Drives Plea Deals
The certainty of the two-year mandatory minimum makes 1028A one of the most powerful bargaining chips in federal white-collar cases. Unlike sentencing guidelines, which involve ranges and judicial discretion, the add-on is automatic and unavoidable absent a substantial-assistance motion. Prosecutors routinely charge 1028A counts knowing the defendant faces a guaranteed two extra years, creating strong incentive to cooperate or plead to lesser charges in exchange for dropping the enhancement.
The math sharpens with multiple counts. Even with the possibility that a judge might run the identity theft terms concurrently with each other, a defendant facing several 1028A counts confronts a stark calculation: accept a deal that eliminates the enhancement, or risk trial knowing that a guilty verdict on a single count alone adds two non-negotiable years to whatever the underlying convictions produce.