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 Aggravated Identify Theft 

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Michael Santos

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Identity theft, under the statute below, can complicate sentencing strategies for people charged in federal court.

The statute became law in the United States in 2004.

Identity theft under Section 1028 requires a mandatory two-year sentence in the Bureau of Prisons. The law requires a federal judge to impose this sentence in a manner that will run consecutive to any other sentence.

I have some familiarity with this kind of “consecutive” sentence. It applied to me. When a jury convicted me in 1987, I faced sentences for all of the jury’s counts. Most of those sentences ran concurrently to a 35-year sentence my judge imposed. Then I got a 10-year consecutive sentence, which stretched my total sentence out to 45-years.

In federal court, most sentences run concurrently—meaning they run at the same time. For example, let’s say authorities charged a person with an indictment that had three counts. Let’s say that the person pleaded guilty, and each count carried a statutory maximum of five years. With three counts, the judge might sentence the person to three five-year sentences. Yet since the judge would impose “concurrent” sentences, in reality, the person would serve one five-year term.

Compare this situation to someone who serves sentences consecutively. If authorities convicted the person of a statute that carried a five-year penalty and a separate count of Aggravated Identity Theft, the person would have to serve the five-year term. After completing the five-year term, the person would begin to serve the consecutive two-year term for identity theft.

The consecutive nature of sentencing for aggravated identity theft under 18 USC 1028A is important. As far as our team knows, identity theft cases always require consecutive two-year sentences. According to the statute, identity theft requires two elements:

  • Obtaining the identifying information of another person, and
  • using that information during the commission of another crime.

Aggravated Identity Theft Sentencing

18 USC 1028A requires federal courts to sentence the defendant to two years prison to be served after the sentence for the underlying crime. Section 1028(b) provides rules for sentencing in these cases. The statute prohibits the judge from allowing the sentences to run concurrently. Instead, the court must sentence the defendant consecutively. Regardless of the underlying crime, a person charged with aggravated identity theft must serve two years after completing the first term.

In addition, federal law prohibits the judge from reducing the sentence on the underlying crime to account for the two-year consecutive add-on. The only situation in which the court may sentence the defendant to concurrent sentences is when there are multiple convictions for aggravated identity theft. In this instance, each two-year consecutive sentence for aggravated identity theft may be served at the same time, but only after completing the sentence for the underlying crime.

Mitigation for Sentencing

If a person faces sentencing in federal court, that person had better begin thinking about mitigation strategies. The person should think about mitigation strategies at the earliest possible time. We recommend people learn as much about the system as possible—and not go forward without knowing what strategies have worked for others.

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