Congress enacted 18 U.S.C. §1028A to impose stricter penalties on aggravated identity theft, but its ambiguous language has allowed prosecutors to apply it broadly, often leading to disproportionate sentences for crimes not fitting the traditional understanding of identity theft. In their article, Andrew Mancilla and Robert Fantone discuss the Supreme Court’s decision in Dubin v. United States which aimed to curb this overreach.
In 2004, when identity theft emerged as a significant threat to individuals and institutions alike, Congress enacted 18 U.S.C. §1028A, entitled “Aggravated Identity Theft,” to impose stricter penalties on offenders. The statute imposes a non-discretionary two-year prison sentence for offenders who, “during and in relation to any [predicate offense], knowingly transfer, possess, or use, without lawful authority, a means of identification of another person.”
Predicate offenses encompass a wide range of crimes, including healthcare fraud and wire fraud, and the two-year mandatory minimum must run consecutively to the sentences imposed for the predicate and other offenses charged.
While intended to target classic identity theft, the statute’s ambiguous language has allowed prosecutors to apply it expansively, often leading to disproportionate sentences for defendants whose actions fall outside the traditional understanding of identity theft.
The Supreme Court’s June 2023 decision in Dubin v. United States, 599 U.S. 110 (2023), aimed to curb this prosecutorial overreach by narrowing the interpretation of §1028A. However, early indications suggest that the decision’s impact has been limited as the government and lower courts continue to apply the statute broadly.