The Hidden Mandatory Sentence in Federal Identity Theft Cases
Federal identity theft cases are rarely just identity theft cases. In the Southern District of Florida, § 1028A is the charge prosecutors add to wire fraud indictments, healthcare fraud cases, immigration prosecutions, and access device fraud conspiracies. It is the mechanism by which a case that might otherwise resolve at 24 months becomes a 26-month sentence — or a case resolving at 5 years becomes 7, or 10 years becomes 12.
The mandatory consecutive nature of § 1028A has no parallel in federal sentencing. Every other sentence can be varied, reduced by cooperation, or addressed through the guidelines — but the § 1028A mandatory two years runs after everything else, cannot be suspended, and cannot be avoided without defeating the charge outright. This is why the fight against § 1028A must happen at the charging stage or at trial, not at sentencing.
How § 1028A Is Charged in SDFL
Healthcare fraud cases are the most common vehicle. When a physician, billing company, or clinic submits false Medicare or Medicaid claims using real patient identifying information, prosecutors add § 1028A counts based on each patient whose information appeared on a fraudulent claim. A single healthcare fraud scheme involving 50 patients could generate 50 § 1028A counts — 100 mandatory years stacked on top of the fraud sentence.
BEC and wire fraud cases frequently involve spoofed email addresses, fabricated executive identities, and vendor impersonation using real employees' names. Each email or financial transaction using a real person's identifying information is a potential § 1028A count.
Immigration cases involving unauthorized workers using borrowed or purchased Social Security numbers. Post-2024, SDFL prosecutions have specifically targeted employers who knowingly benefited from workforce identity fraud.
Access device fraud involving credit card skimming, dark web card trading, and account takeover schemes — all federal felonies that trigger § 1028A when a real cardholder's account information is used.
Our Defense Strategy
Dubin analysis first. The Supreme Court's 2023 decision in Dubin v. United States is the most significant narrowing of § 1028A in the statute's history. We evaluate every § 1028A count against the Dubin standard: was the use of the victim's identity truly at the crux of the crime, or was it merely incidental to the predicate offense? When Dubin applies, entire batteries of counts fall away — and with them, years of mandatory consecutive time.
Challenging the predicate offense. If the underlying felony is defeated, § 1028A cannot stand. We pursue full acquittal on predicate charges — wire fraud, healthcare fraud, access device fraud — which eliminates the aggravated identity theft counts entirely.
Contesting the "real person" element. Section 1028A requires that the means of identification belong to another actual person. Synthetic identities, fabricated composites, and deceased individuals' information raise genuine legal questions about whether this element is satisfied. We litigate these issues aggressively.
Negotiating § 1028A dismissal in plea agreements. Even when the predicate case will resolve through a plea, we negotiate specifically for the dismissal of § 1028A counts as part of the agreement. Avoiding even one § 1028A count saves two mandatory years. In cases with multiple counts, the difference can be a decade.