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United States Sentencing CommissionMandatory Minimum Penalties for Federal Identity Theft Offenses (2018)Statutory Mandatory Minimum ProvisionsApplicable to Federal Identity TheftOffendersFederal identity theft offenders areprimarily convicted of offenses under 18U.S.C. §§ 1028A (aggravated identity theft)and 1028 (general identity theft). Only section1028A carries a mandatory minimum penalty.This section provides a brief overview of thesetwo provisions.18 U.S.C. § 1028ASection 1028A of title 18, United StatesCode, provides enhanced punishment foraggravated identity theft, including a two-yearmandatory minimum penalty.5 This provision,which was enacted in the Identity TheftPenalty Enhancement Act of 2004,6 prohibitsknowingly transferring, possessing, or using,a “means of identification” of another personduring and in relation to any enumeratedfelony violation.7 A “means of identification”means “any name or number that may beused, alone or in conjunction with any otherinformation, to identify a specific individual.”8The enumerated felony offenses include theftoffenses,9 offenses involving false statementsand fraud,10 offenses related to nationality andcitizenship,11 offenses related to passports andvisas,12 and immigration offenses.13Section 1028A requires that the mandatoryminimum two-year term of imprisonment beimposed consecutively to “any other term ofimprisonment imposed on the person underany other provision of law, including anyterm of imprisonment imposed for the felony8during which the means of identification wastransferred, possessed, or used.”14 The statutedirects the court not to reduce any sentence forthe underlying felony, assuming the defendantis convicted separately of the underlying felony,to “compensate for, or otherwise take intoaccount, any separate term of imprisonment” tobe imposed for a violation of section 1028A.15The statute allows the court discretion tosentence a defendant convicted of multiplecounts under section 1028A to terms that runconsecutively or concurrently. As describedabove, the sentencing court must impose thetwo-year mandatory minimum penalty forthe first section 1028A count consecutivelyto any sentence imposed for the underlyingfelony offense.16 However, the court may, in itsdiscretion, run the sentence for any additionalsection 1028A counts “concurrently, in wholeor in part, [] with another term of imprisonmentthat is imposed by the court at the same time . . .for an additional violation of [section 1028A].17Thus, section 1028A allows but does not requirethat multiple counts of conviction be servedconsecutively, or “stacked” with one another.This structure differs from 18 U.S.C. § 924(c)(relating to using or possessing firearms infurtherance of drug trafficking or crimes ofviolence), which requires a sentencing courtto impose consecutive sentences for both theunderlying offense and any additional countsunder section 924(c).18

Section Three:Identity Theft Mandatory MinimumsOther Identity Theft StatutesOther statutes penalize conduct that is similarto aggravated identity theft, but these statutesdo not carry mandatory minimum penalties.The general identity theft statute, 18 U.S.C.§ 1028, proscribes a broader range of identitytheft activities than section 1028A.19 Thus, allconduct that violates section 1028A also violatessection 1028,20 but some conduct that violatessection 1028 does not violate section 1028A.21Additionally, in some circumstances, conductcovered by the aggravated identity theft statutemay be punishable under various fraud offensestatutes that do not carry mandatory minimumpenalties.22The exercise of prosecutorial discretion incharging identity theft offenses is limited tosome degree by the differing proof requirementsof the aggravated identity theft offense,compared to other identity theft offenses. InFlores-Figueroa v. United States,23 the SupremeCourt held that to establish the element insection 1028A that the defendant “knowingly”transferred, possessed, or used a means ofidentity of another person, the governmentmust prove that the defendant both knew thathe or she was transferring, possessing, orusing a means of identification and knew thatthe means of identification in fact belongedto another person.24 Although a similar proofrequirement exists under the general identitytheft statute insofar as the government allegesthe defendant violated section 1028(a)(7)(“knowingly transfers, possesses or uses,without lawful authority, a means of identity ofanother person”), other sections of the generalidentity theft offense, other fraud statutes, andthe guidelines’ identity-theft enhancementimpose less stringent proof requirements thansection 1028A.25Guideline ProvisionsThe guideline provision applicable toconvictions of an offense under section 1028A,§2B1.6, reflects the statute’s mandatory penalty,providing that “the guideline sentence is theterm of imprisonment required by statute.”26The guideline also provides a non-exhaustivelist of factors for the court to consider inexercising its discretion when sentencing onmultiple counts under section 1028A. Thefactors are: (1) the nature and seriousnessof the underlying offenses (e.g., whether theunderlying offenses are crimes of violence;(2) whether the underlying offenses are ableto be grouped for guidelines purposes; and (3)whether the purposes of sentencing as specifiedat 18 U.S.C. § 3553(a)(2) “are better achievedby imposing a concurrent or consecutivesentence.”27USSG §2B1.1 applies to identity theftoffenders generally, including non-aggravatedidentity theft, fraud, and other offenses. Itestablishes a 2-level enhancement if theoffense involved “the unauthorized transfer oruse of any means of identification unlawfullyto produce or obtain any other means ofidentification” or “the possession of 5 ormore means of identification that unlawfullywere produced from, or obtained by theuse of, another means of identification.”28Conduct that would trigger the guidelineenhancement is also generally punishableunder section 1028A.29 The guideline also9

United States Sentencing CommissionMandatory Minimum Penalties for Federal Identity Theft Offenses (2018)provides incremental enhancements based onthe amount of loss incurred in the offense,30 anenhancement of two, four, or six levels basedon the number of victims involved and amountof financial hardship caused,31 and an increasefor sophisticated means.32Statutory and Guideline Relief ProvisionsOffenders may receive relief from theaggravated identity theft mandatory minimumpenalty if the prosecution files a motion basedon the defendant’s “substantial assistance”pursuant to 18 U.S.C. § 3553(e).33 When suchmotion is filed, section 3553(e) authorizes thecourt to impose a sentence below the mandatoryminimum penalty.As directed by Congress, the Commissionincorporated this statutory mechanism forrelief from mandatory minimum penaltiesinto the guidelines. USSG §5K1.1 authorizesa departure from the guideline range if theoffender provided substantial assistance to lawenforcement and the government files a motionto that effect.34 Even where §5K1.1 applies,however, the court can only sentence belowthe mandatory minimum penalty when thegovernment also files a motion pursuant to 18U.S.C. § 3553(e).3510

4DataAnalysis

United States Sentencing CommissionMandatory Minimum Penalties for Federal Identity Theft Offenses (2018)The Commission’s Updated Study ofIdentity Theft Mandatory MinimumPenaltiesIn its 2011 Mandatory Minimum Report, theCommission made several recommendations toCongress regarding the use of, and improvementto, mandatory minimum penalties generallyand with respect to the four major offensetypes. However, the Commission noted thatit was “difficult to issue specific findings andrecommendations regarding the operationof section 1028A” because the offense ofaggravated identity theft was relativelynew, having been established in 2004.36 TheCommission did note, however, that “someof the problems associated with mandatoryminimum penalties for other offenses arenot observed, or are not as pronounced, inidentity theft offenses” because, relative toother mandatory minimum penalties, section1028A provides for a two-year penalty andallows for concurrent sentences of multiplecounts.37 As a result, unlike other mandatoryminimum penalties, sentences imposed undersection 1028A were comparable to sentencesimposed for similar offenses that do not carry amandatory minimum penalty. Additionally, incontrast to other offenses carrying mandatoryminimum penalties, demographic differencesin the application of section 1028A were notobserved at that time. While the Commissionnoted that there appeared to be someinconsistencies in the application of section1028A across judicial districts, these appearedattributable to the new nature of the statute.The Commission thus determined that specificconclusions or recommendations were difficultto make with respect to identity theft mandatoryminimum penalties at that time.38Figure 1. Identity Theft Offenders Convicted Under 18 U.S.C. § 1028AFiscal Year 2016[N 62,251]All Other FederalOffenders97.1%(N 60,420)Identity Theft Offenders2.9%(N 1,831)Not ConvictedUnder18 U.S.C. § 1028A46.6%(N 853)SOURCE: U.S. Sentencing Commission 2016 Datafile, USSCFY2016.12Convicted Under18 U.S.C. § 1028A53.4%(N 978)

Section Four:Data AnalysisSince the 2011 Mandatory Minimum Report,the Commission has continued its study of thescope, use, and impact of mandatory minimumpenalties in the federal system, providingregular updates through the issuance of QuickFacts publications, as well as in testimonybefore Congress. The Commission providesthis publication to update the informationand analyses in its 2011 Mandatory MinimumReport and to further inform discussion of theCommission’s recommendations regardingthe use of mandatory minimum penalties foridentity theft offenses.Focusing on offenses carrying an identitytheft mandatory minimum penalty, thispublication analyzes 62,251 cases from theCommission’s fiscal year 2016 datafile,39identifying relevant offender and offensecharacteristics, including demographic dataand basic criminal history information. Thispublication provides comparisons between allidentity theft offenders, offenders convicted ofat least one count of aggravated identity theftunder section 1028A, offenders convicted ofmultiple counts under section 1028A, andoffenders who remained subject to section1028A’s mandatory minimum penalty atsentencing. The Commission also providesdata about sentencing outcomes involvingapplication of the section 1028A mandatoryminimum penalty. Where appropriate, thispublication highlights key changes betweenthe data set forth in the Commission’s 2011Mandatory Minimum Report and the fiscal year2016 sentencing data.The Commission intends that the data inthis publication will further inform the ongoingdiscussion regarding mandatory minimumpenalties among Congress, the Department ofJustice, and others.Recent Trends in Mandatory MinimumPenaltiesAs discussed in the 2017 OverviewPublication, the prevalence of convictions foran offense carrying any mandatory minimumpenalty among all federal offenders decreasedin fiscal year 2016. From fiscal years 1991to 2013, the percentage of federal offendersconvicted of an offense carrying a mandatoryminimum penalty fluctuated between 26.0percent and 31.9 percent. Over the past threeyears, however, the percentage has decreased,to 21.9 percent in fiscal year 2016.While the percentage of offenders convictedof an offense carrying a mandatory minimumpenalty steadily decreased, the percentage ofoffenders subject to a mandatory minimum atsentencing remained relatively stable duringthe same time period, falling only slightly from14.5 percent in fiscal year 2010 to 13.4 percentin fiscal year 2016. This is because offenders inrecent years have been increasingly less likelyto receive relief from a mandatory minimumpenalty through a substantial assistance motionor application of the statutory safety valve.In fiscal year 2016, 38.7 percent offendersconvicted of an offense carrying a mandatoryminimum penalty received relief, down from46.7 percent in 2010.4013

United States Sentencing CommissionMandatory Minimum Penalties for Federal Identity Theft Offenses (2018)Figure 2. Number of Offenders Convicted Under 18 U.S.C. § 1028AFiscal Years 2006 - 20161,500number18 U.S.C. § 1028A1,2501,0007505002500SOURCE: U.S. Sentencing Commission 2006 through 2016 Datafiles, USSCFY2006-USSCFY2016.Overall Prevalence of Identity TheftOffenses and Section 1028A AggravatedIdentity TheftHow Often Are Offenders Convicted Under 18U.S.C. § 1028A?Identity theft offenses continued toconstitute a small percentage of federalcriminal cases overall. In fiscal year 2016, ofthe 62,251 offenders sentenced and includedin this analysis, 2.9 percent (n 1,831) wereidentity theft offenders. Of the 1,831 casesinvolving identity theft offenses, slightly morethan half (53.4%, n 978) were convicted undersection 1028A, while 46.6 percent (n 853)were convicted of an identity theft offense thatdid not carry a mandatory minimum penalty.The 978 offenders convicted under section1028A thus represent only 1.6 percent offederal offenders sentenced in 2016.14As reflected in Figure 2, the numberof section 1028A offenders generally andtheir portion of the federal caseload overallhas remained relatively stable since theCommission’s 2011 Mandatory MinimumReport. After a rapid increase between fiscalyears 2006 (n 286) and 2009 (n 896), thenumber of offenders more gradually increasedto a high of 1,047 offenders in fiscal year 2014(the only year with more than 1,000 offendersconvicted), before decreasing to 978 offendersin fiscal year 2016.The changes in the number of offendersconvicted under the statute correlates withincreased use of the section 1028A mandatoryminimum penalties as a prosecutorial toolagainst identity theft offenders. As shownin Figure 3, the percentage of identity theftoffenders convicted under section 1028A hassteadily increased since shortly after the statutewas enacted, more than doubling from 21.9percent in fiscal year 2006 to 53.4 percent infiscal year 2016. The percentage of identity

Section Four:Data AnalysisFigure 3. Identity Theft Offenders Convicted of an Offense Carrying a Mandatory Minimum PenaltyFiscal Years 2006 - 2016Identity Theft100.0%80.0%60.0%40.0%20.0%0.0%SOURCE: U.S. Sentencing Commission, 2006 through 2016 Datafiles, USSCFY06 – USSCFY16.theft offenders convicted under section 1028Ahas also increased since the Commission’s lastreport on mandatory minimum penalties. Infiscal year 2010, fewer than half of identitytheft offenders (42.6%, n 797) were convictedunder section 1028A. In fiscal year 2016,that percentage has risen to more than half,with 53.4 percent of identity theft offendersconvicted under section 1028A.Section 1028A aggravated identity theftoffenses also increased as a portion of alloffenses carrying mandatory minimumpenalties. Section 1028A offenses accountedfor 7.2 percent of offenses carrying a mandatoryminimum penalty in fiscal year 2016, increasingfrom 4.0 percent in 2010.Figure 4. Offenders Convicted of an Identity Theft Offense Carrying a Mandatory Minimum PenaltyFiscal Year 2016[N 13,604]Offenders Convicted Under18 U.S.C. § 1028A7.2%(N 978)All Other Offenders Convicted of aMandatory Minimum92.8%(N 12,626)SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.15

United States Sentencing CommissionMandatory Minimum Penalties for Federal Identity Theft Offenses (2018)Figure 5. Offenders Convicted of Multiple Counts Under 18 U.S.C. § 1028AFiscal Years 2006 - 2016[N 978]Single18 U.S.C. § 1028A Count89.2%(N 872)Multiple18 U.S.C. § 1028A Counts10.8%(N 106)Number of 18 U.S.C. § 1028A Countsfor Multiple Count CasesTotal106100.0%Two Counts4845.3%Three Counts2624.5%Four CountsFive or More (Range: 5 to 16)76.6%2523.6%SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.How Often Are Offenders Convicted ofMultiple Counts Under 18 U.S.C. § 1028A?Of the 978 offenders convicted of aggravatedidentity theft, 872 (89.2%) were convicted of asingle count, and 106 (10.8%) were convictedof multiple counts under the statute. Of the 106offenders convicted of multiple counts undersection 1028A, nearly half were convicted oftwo such counts (45.3%; n 48), while 26 wereconvicted of three such counts, seven wereconvicted of four such counts, and 25 wereconvicted of five or more (with a high of 16counts for a single offender).Figure 6. Offenders Convicted of Multiple Counts Under 18 U.S.C. § 1028AFiscal Years 2006 - 2016Multiple Counts of 18 U.S.C. § 1028A200150100500SOURCE: U.S. Sentencing Commission 2006 through 2016 Datafiles, USSCFY2006-USSCFY2016.16

Section Four:Data AnalysisThe number of offenders convicted ofmultiple counts under section 1028A hasfluctuated but has remained a relativelysmall percentage of all offenders convictedunder the statute. As with the number of alloffenders convicted under section 1028A, thenumber of offenders convicted of multiplecounts has generally increased during the timethe Commission has collected data on theseoffenses, peaking at 164 offenders in fiscal year2014 (from 29 in 2006) and decreasing to 106in fiscal year 2016.Where Were Offenders Convicted ofOffenses Under Section 1028A?Cases involving a conviction undersection 1028A were primarily concentrated inthree circuits. Of the 978 cases in fiscal year2016, the most—slightly more than one-third(34.7%; n 339)—were from district courts inthe Eleventh Circuit. The next largest portionscame from district courts in the Fourth Circuit(14.0%; n 137) and Ninth Circuit (9.8%;n 96). Thus, over half (58.5%; n 572) of the978 cases involving the aggravated identitytheft mandatory minimum penalty were fromdistrict courts in those three circuits. This isconsistent with fiscal year 2010, when 54.3percent (n 433) of the 797 section 1028Acases were from the district courts of thesesame three circuits. However, the percentagethat were from district courts in the EleventhCircuit has increased substantially, from 23.8percent (n 190) in fiscal year 2010. Theother cases were distributed throughout theremaining circuits, with the fewest from thedistrict courts in the First Circuit (2.4%; n 23),and the District of Columbia Circuit, which didnot have any section 1028A cases.Figure 7. Geographic Distribution of Offenders Convicted Under 18 U.S.C. § 1028AFiscal Year 2016Number of Aggravated Identity Theft Cases in Each DistrictNumber ofOffendersZero1-56-9Number of Aggravated Identity Theft Cases in Each DistrictMultiple Counts Under 18 U.S.C. § 1028ANumber ofOffenders10-1920-3940-5980 ormoreZero1-56-910-19*20-39* There were zero districts with 10-19 cases involving multiple counts of conviction under 18 U.S.C. § 1028A.SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.17

United States Sentencing CommissionMandatory Minimum Penalties for Federal Identity Theft Offenses (2018)Cases involving a conviction under section1028A were more geographically dispersedwhen viewed at the district level. Nonetheless,a disproportionately large number of cases camefrom eight districts. The Southern District ofFlorida had substantially more cases involvinga conviction of an offense under section 1028Athan any other district. Of the 978 cases in fiscalyear 2016 involving a conviction under sec

§ 1028 (general identity theft) and 18 U.S.C. § 1028A (aggravated identity theft), as well as any other offense sentenced under the fraud guideline, §2B1.1, that received the 2-level enhancement for identity theft conduct.4 Only the aggravated identity theft statute, 18 U.S.C. § 1028A, carries a mandatory minimum penalty.