Aggravated identity theft under 18 U.S.C. § 1028A carries a mandatory 2-year consecutive sentence that even a federal judge cannot reduce or suspend. This mandatory minimum makes the charge one of the most dangerous in the federal criminal code. D.J. Rivera provides aggressive defense focused on defeating the underlying predicate offense and challenging the "use" element.
18 U.S.C. § 1028 — Identity Theft
Knowingly and without lawful authority producing, transferring, possessing, or using a means of identification of another person with intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law.
18 U.S.C. § 1028A — Aggravated Identity Theft (Mandatory Minimum)
Whoever, during and in relation to any felony violation enumerated in subsection (c), knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years. The court shall not place on probation any person convicted of a violation of this section. No term of imprisonment imposed on a person under this section shall run concurrently with any other term of imprisonment imposed on the person under any other provision of law.
The critical distinction between § 1028 and § 1028A is the mandatory nature of the sentence. Under § 1028A, the 2-year sentence is mandatory, consecutive to any other sentence, and cannot be suspended, reduced, or run concurrently. A defendant convicted of wire fraud and aggravated identity theft, for example, will serve the wire fraud sentence plus an additional mandatory 2 years — regardless of what the judge thinks is appropriate.
| Charge | Maximum Prison | Notes |
|---|---|---|
| § 1028 Identity Theft (basic) | Up to 15 years | Depends on type of ID document |
| § 1028A Aggravated Identity Theft | 2 years mandatory minimum (consecutive) | Cannot be suspended or run concurrently |
| Virginia Identity Theft (§ 18.2-186.3) | Class 4 Felony — up to 10 years | State charge; may be charged alongside federal |
The § 1028A Trap: Prosecutors frequently add aggravated identity theft counts as leverage in plea negotiations. Even if the underlying fraud charge is relatively minor, the mandatory 2-year consecutive sentence under § 1028A dramatically increases the stakes. Defeating the aggravated identity theft count — or the underlying predicate offense — is often the most important strategic goal in these cases.
Aggravated identity theft under § 1028A requires a conviction on a predicate felony offense — typically wire fraud, computer fraud, or another enumerated offense. If the predicate offense is defeated, the § 1028A charge falls with it. D.J. Rivera focuses on defeating the predicate offense as the primary strategy for avoiding the mandatory minimum sentence.
In Flores-Figueroa v. United States (2009), the Supreme Court held that § 1028A requires proof that the defendant knew the means of identification belonged to a real person — not just that they used a means of identification. This "knowledge" requirement is a powerful defense in cases where the defendant used a randomly generated number, a fictitious identity, or a means of identification without knowing it belonged to an actual person.
The prosecution must prove that the defendant personally used the means of identification — not merely that the identification was used by someone in a scheme the defendant participated in. In cases involving multiple defendants or complex fraud schemes, the attribution of specific acts of identity use to a particular defendant is frequently contested.
Identity theft prosecutions depend heavily on digital evidence — computer forensics, financial records, IP logs, and email communications. D.J. Rivera's GCFE certification and D.Eng. in Cybersecurity Analytics give him the technical expertise to challenge this evidence at the same level as the federal forensic examiners who collected it.
Identity theft cases in Northern Virginia are prosecuted in the Eastern District of Virginia — one of the most aggressive federal districts in the country. D.J. Rivera has tried and won federal cases in EDVA, giving him the experience and familiarity with EDVA procedures that is essential for an effective federal defense. His technical background allows him to challenge the digital evidence that forms the backbone of every identity theft prosecution.
The mandatory minimum in § 1028A makes early intervention critical. D.J. Rivera is available 24/7 for a free, confidential consultation.
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