If your federal indictment or information includes 18 U.S.C. § 1028A, have defense counsel review the § 1028A count together with its alleged underlying felony before making a plea decision. For the usual § 1028A(a)(1) charge, the government must connect the knowing, unauthorized transfer, possession or use of another person’s means of identification to a felony on the statute’s specific list. The law also carries a separate prison term if there is a conviction. A name or number appearing in case records does not, by itself, resolve whether the charged elements are met.
Compare the identity-theft count with the alleged felony
Bring counsel every page of the charging document, including the counts it references. Federal Rule of Criminal Procedure 7(c) requires an indictment or information to state each count’s essential facts and cite the alleged offense. The citation and the underlying facts both matter; a citation error alone is not an automatic dismissal.
| What to locate | What counsel needs to test |
|---|---|
| The charged subsection | § 1028A(a)(1) is the general aggravated-identity-theft route. The distinct § 1028A(a)(2) route involves an enumerated terrorism felony and reaches another person’s means of identification or a false identification document, with a different term. Do not assume the terrorism provision applies just because it appears in the same statute. |
| The alleged underlying felony | Subsection (a)(1) requires a felony from the particular list in § 1028A(c). That list includes specified fraud, false-statement and other offenses; it does not include every federal felony. Compare the actual count and cited provision rather than treating any accompanying charge as a qualifying predicate. |
| Whose identity, and what the accused knew | § 1028(d)(7) defines a means of identification broadly, including a name or number that can identify a specific individual. For subsection (a)(1), Flores-Figueroa v. United States requires proof that the accused knew the identifier belonged to another real person. An identifier later matching someone is not, alone, proof of that knowledge. |
| What the identifier allegedly did in the felony | Section 1028A(a)(1) requires the transfer, possession or use to occur during and in relation to the listed felony, without lawful authority. For a charged use of another’s identifier, Dubin v. United States rejects treating a name that is merely incidental to billing or payment as enough: the misuse must be central to what makes the underlying conduct criminal. That holding does not automatically clear all billing cases or decide every transfer, possession or authority question. |
The record may dispute who supplied an identifier, what the person believed about it, or whether its use was part of the alleged deception rather than ordinary paperwork. Preserve the original applications, messages, account and transaction records, identity documents, and any corrections already made. Mark dates and sources for counsel; do not alter records or ask someone else to change an account. Counsel can compare those materials with the count and the government’s evidence without assuming an accusation or a legal label proves guilt.
Understand the separate sentence before discussing a plea
For a conviction under § 1028A(a)(1), the statute specifies two years of imprisonment in addition to punishment for the underlying felony; subsection (a)(2) specifies five years for its separate terrorism route. § 1028A(b) bars probation on a § 1028A conviction and generally makes its prison term consecutive to other imprisonment, including the underlying felony. It also forbids shortening the underlying felony sentence merely to offset that separate term. There is a limited exception: if the court imposes additional § 1028A terms at the same time, it may run those terms together, in whole or part, under applicable sentencing guidance. None of these sentencing rules proves the charge or predicts an individual’s outcome.
If a plea offer addresses several counts, ask counsel to identify exactly which § 1028A subsection and predicate remain, what facts would be admitted, and how the separate statutory term would operate. A disputed predicate, identity-knowledge issue or Dubin use question needs analysis of the actual indictment and evidence; it is not a reason to rely on a generic “identity theft” label.
If you face a federal § 1028A charge connected to California, the Law Offices of David S. Chesley can discuss the charging papers and identity records with you. Call (800) 755-5174.