The 2-Year Mandatory Consecutive Sentence Under 18 U.S.C. § 1028A, How These Cases Are Charged in the Southern District, and Where the Defense Fights
You are charged with wire fraud. The sentence for that alone would be significant. Then the prosecutor adds a count of aggravated identity theft under 18 U.S.C. § 1028A. That single additional count carries a mandatory 2 years in federal prison consecutive, not concurrent. It cannot be reduced. The judge cannot lower it. No matter what else happens in the case, those 2 years are fixed. This is how identity theft is weaponized in the Southern District.
Aggravated identity theft under 18 U.S.C. § 1028A is one of the most tactically significant charges in the federal prosecutor's toolkit. It is not primarily charged to punish identity theft on its own it is charged as a sentence enhancement vehicle, stacked on top of underlying fraud, immigration, or financial crimes to guarantee additional prison time that no judge can touch. In San Diego, where fraud prosecutions, immigration cases, and financial crimes are a daily feature of the Southern District docket, § 1028A appears in a remarkable percentage of federal indictments.
The Bulldog Law tracks identity theft prosecution trends in the Southern District on defense blog. This article explains exactly how § 1028A works, why it is so dangerous, and the specific defense strategies that have succeeded in challenging these charges.
How 18 U.S.C. § 1028A Works The Statute That Judges Cannot Override
Section 1028A makes it a federal crime to knowingly transfer, possess, or use, without lawful authority, a means of identification of another person during and in relation to any felony listed in the statute. The critical feature is what happens at sentencing.
THE MANDATORY CONSECUTIVE RULE: A § 1028A conviction carries a mandatory 2-year sentence that must run consecutively to any other sentence imposed. The judge has zero discretion. Even if the judge believes 2 additional years is unjust, even if the defendant has no criminal history, even if the conduct was minor — the 2 years are mandatory and consecutive. Multiple counts of § 1028A can be stacked, each adding another consecutive 2 years.
What ‘Means of Identification' Covers
The statute defines “means of identification” broadly to include any name, Social Security number, date of birth, official government-issued identification number, unique biometric data, unique electronic identification number, or telecommunication identifying information of another person. Using a real person's Social Security number on a fraudulent tax return, submitting a mortgage application with another person's name and date of birth, or using someone else's immigration documents all qualify.
The Underlying Felony Requirement
Section 1028A only applies when the identity theft occurs “during and in relation to” a predicate felony listed in the statute. The list includes wire fraud, mail fraud, bank fraud, tax fraud, immigration offenses, Social Security fraud, and dozens of other federal crimes. This predicate requirement means § 1028A is almost always charged alongside the underlying offense not alone. In the Southern District, the most common predicates are wire fraud, immigration document fraud, and tax fraud.
18 U.S.C. § 1028: Basic Identity Fraud
The base identity fraud statute § 1028 covers production, transfer, and use of false identification documents and is a felony carrying up to 15 years depending on the circumstances. It is distinct from § 1028A's aggravated version and does not carry the mandatory consecutive sentence. Southern District prosecutors charge both statutes when the facts support them, using § 1028 for document fraud and § 1028A for use of a real person's identity information.
How Identity Theft Cases Are Charged in San Diego's Southern District
Tax Fraud and IRS Identity Theft
San Diego's large military, bilingual, and immigrant communities make it a frequent target for tax-related identity theft schemes — using real Social Security numbers to file fraudulent refund claims. IRS Criminal Investigation and the U.S. Attorney's Office prosecute these cases as wire fraud plus § 1028A, with each fraudulent return generating a potential separate § 1028A count. We challenge the attribution of specific returns to our client, the sufficiency of evidence establishing knowing use of another's identity, and the count calculation used to build the cumulative mandatory sentence.
Immigration Document Cases
San Diego's border location generates a significant volume of federal identity theft cases arising from the use of another person's immigration documents a green card, a visa, or a work authorization card to cross the border or obtain employment. These cases are prosecuted under both immigration fraud statutes and § 1028A. The Supreme Court's decision in Flores-Figueroa v. United States (2009) established that the government must prove the defendant knew the identification belonged to a real person not just that the document was false. This knowledge requirement is the central defense battleground in San Diego immigration identity theft cases.
Credit and Financial Fraud
Identity theft in the context of credit card fraud, mortgage fraud, and bank account takeover is prosecuted in San Diego as wire fraud or bank fraud plus § 1028A. These cases frequently involve data breaches, skimming operations, and purchased identity information sold on dark web marketplaces. We challenge the chain of evidence connecting our client to specific uses of identity information, the attribution of online activity to a specific person, and the reliability of digital forensic analysis used to establish identity.
Healthcare Identity Fraud
Using another person's Medicare or Medicaid information to bill for medical services not rendered is a common Southern District prosecution combining healthcare fraud under 18 U.S.C. § 1347 with § 1028A identity theft. San Diego's large healthcare sector and significant military healthcare system make this a recurring prosecution category. The mandatory consecutive sentence from § 1028A turns what might otherwise be a manageable healthcare fraud sentence into a significantly longer prison term.
Where Federal Identity Theft Cases Are Prosecuted in San Diego
Federal identity theft charges are prosecuted in the United States District Court for the Southern District of California:
U.S. District Court Southern District of California
333 West Broadway, San Diego, CA 92101
U.S. Attorney's Office: 880 Front Street, San Diego, CA 92101
Identity theft cases in the Southern District are handled by the Financial Crimes and Cyber section in coordination with IRS Criminal Investigation, the Secret Service, and the FBI's cyber division. Because § 1028A is almost always a companion charge to another offense, the prosecution team handling the underlying fraud or immigration case handles the identity theft count as well.
Defense Strategies for § 1028A Identity Theft Charges in San Diego
The Bulldog Law's federal white collar defense practice attacks § 1028A charges on multiple fronts — challenging the knowledge element, contesting the predicate felony, and fighting the count multiplication that creates cumulative mandatory consecutive exposure:
The Flores-Figueroa Knowledge Defense
The Supreme Court's 2009 decision in Flores-Figueroa v. United States held that § 1028A requires the government to prove the defendant knew the means of identification belonged to a real, actual person not just that the identification information was real. In immigration cases where a defendant used documents they believed were fabricated, in fraud cases where a defendant used data they believed was synthetic, and in any case where the defendant lacked specific knowledge that the identity information belonged to a living person, this knowledge element is genuinely contestable. We build Flores-Figueroa defenses through evidence of the defendant's actual understanding of the identification's origin.
Attacking the Predicate Felony
Because § 1028A requires the identity theft to occur “during and in relation to” a listed predicate felony, defeating the predicate eliminates the § 1028A charge entirely. If we successfully challenge the wire fraud charge, the bank fraud charge, or the immigration offense that underlies the identity theft count, the § 1028A count falls with it. We evaluate the predicate felony and the identity theft charge as a unified defense target.
Challenging Count Multiplication
Federal prosecutors in the Southern District sometimes charge multiple § 1028A counts based on a single scheme arguing that each use of identity information constitutes a separate offense. We challenge count multiplication through unit of prosecution arguments, presenting evidence that what the government has charged as multiple offenses was in reality a single continuous course of conduct that should be treated as one count. Reducing the count total directly reduces the cumulative mandatory consecutive sentence.
Plea Negotiation Eliminating the § 1028A Count
Because the mandatory consecutive sentence of § 1028A is non-negotiable once a conviction occurs, the most significant plea negotiation objective in any case where § 1028A is charged is to eliminate that count entirely in exchange for a plea to the underlying offense alone. Southern District prosecutors have varying willingness to drop § 1028A counts depending on the strength of their evidence, the severity of the underlying conduct, and the defendant's cooperation potential. We evaluate this option in every case and pursue it aggressively when dismissal of the § 1028A count is achievable.
Facing Federal Identity Theft Charges in San Diego? Key Steps Now
- Do not make any statement to IRS Criminal Investigation, the Secret Service, FBI agents, or any federal law enforcement personnel without retaining federal defense counsel. The knowledge element in § 1028A cases is often built almost entirely from statements the defendant made voluntarily to investigators. Invoke your right to silence immediately.
- Do not destroy any records, documents, or digital files. Federal identity theft investigations involve electronic records that have typically already been captured by the government before any arrest or interview request. Evidence destruction serves no purpose and creates obstruction liability.
- If you used another person's identification information in an immigration or employment context, understand that your awareness of whether that information belonged to a real person is critical to your defense. Document everything you knew about the origin of the documents or information you used.
- If you are charged with both an underlying fraud offense and § 1028A, understand that the identity theft count is the most important count from a sentencing perspective. Every defense dollar and every negotiating chip should be directed first at eliminating the § 1028A count.
- If you have received a target letter or grand jury subpoena related to a fraud investigation that involved any use of personal identification information, contact The Bulldog Law immediately. Pre-indictment intervention gives us the opportunity to prevent the § 1028A charge from being filed at all.
- Call The Bulldog Law at (888) 928-1609. The mandatory consecutive sentence structure of § 1028A makes early, aggressive defense representation the single most important investment you can make in your case.
Contact The Bulldog Law From Your San Diego County Community
The Bulldog Law defends clients facing federal identity theft and related fraud charges throughout San Diego County and the Southern District. Reach us from your community:
Solana Beach: North Coastal clients in Solana Beach, Del Mar, and Encinitas can contact The Bulldog Law through our Solana Beach office page. Federal cases from North County are prosecuted at 333 West Broadway, San Diego.
Oceanside: North County clients in Oceanside, Carlsbad, and Camp Pendleton area can reach us through our Oceanside office page. Military-connected identity theft cases from this area are a particular area of focus for our federal defense team.
Chula Vista: South Bay clients in Chula Vista, National City, and Imperial Beach can contact us through our Chula Vista office page. Immigration-related identity theft cases from the South Bay corridor are among the most common § 1028A prosecutions we defend.
We also serve clients in El Cajon, La Mesa, Santee, Escondido, Vista, San Marcos, Poway, Coronado, Lemon Grove, and all surrounding San Diego County communities.
View our complete San Diego office or contact our San Diego office directly:
San Diego Office
501 West Broadway, Suite 800 San Diego, CA 92101 Phone: (888) 928-1609
Frequently Asked Questions: 18 U.S.C. § 1028A in San Diego
Why does the 2-year sentence under § 1028A matter so much if I am already facing a longer sentence?
Because it runs consecutively on top of, not instead of, any other sentence. If you are convicted of wire fraud and sentenced to 3 years, and you also have a § 1028A conviction, the judge must impose the 2-year identity theft sentence consecutively, bringing your total to 5 years minimum. The judge cannot merge the sentences, reduce the identity theft term, or run them concurrently regardless of any other factor. When multiple § 1028A counts are charged, each one adds another mandatory consecutive 2 years. This stacking effect is why eliminating the § 1028A count is the highest-priority defense objective in any case where it is charged.
What did Flores-Figueroa v. United States decide and why does it matter?
In Flores-Figueroa v. United States (2009), the Supreme Court held that the government must prove the defendant knew the means of identification they used belonged to a real, actual other person. Prior to this decision, some courts held that the government only needed to show the defendant knew the identification information was real not that it belonged to someone. After Flores-Figueroa, defendants who used identification information without knowing it belonged to a living person including many immigrants who used documents they were told were fabricated have a genuine defense to the § 1028A charge even when the underlying immigration or fraud offense cannot be contested.
Can I be charged with § 1028A for using a fake name rather than a real person's identity?
No. Section 1028A specifically requires use of a means of identification of another actual person. Using a completely fabricated name, Social Security number, or identification number that does not belong to any real person does not satisfy the statute. However, the government frequently argues that any identification information that matches a real person's data even if the defendant used it not knowing it was real satisfies the element. We challenge this argument through evidence that the defendant had no knowledge the information corresponded to a real person.
How does § 1028A apply in immigration cases in San Diego?
San Diego's border location makes it one of the most active districts for immigration-related § 1028A prosecutions. When someone uses another person's Social Security card, green card, or work authorization document to enter the country or obtain employment, federal prosecutors charge the immigration offense plus § 1028A. The Flores-Figueroa defense is particularly powerful in these cases because many defendants obtained their documents from brokers and had no knowledge that the documents contained a real person's identifying information. We present evidence of the defendant's understanding of the documents' origin and challenge the government's proof of knowing use of a real person's identity.
What is the difference between § 1028 and § 1028A?
Section 1028 covers the production, transfer, and use of false identification documents forged driver's licenses, fake passports, counterfeit Social Security cards. It carries up to 15 years depending on the circumstances and does not require use of a real person's information. Section 1028A the aggravated version covers using a real person's actual identity information during the commission of a listed predicate felony and carries the mandatory 2-year consecutive sentence. The key practical difference is that § 1028 is subject to judicial discretion at sentencing while § 1028A is completely mandatory and consecutive regardless of any mitigating factor.
Can the mandatory consecutive sentence under § 1028A ever be avoided after conviction?
After conviction, the mandatory consecutive sentence under § 1028A cannot be reduced by the sentencing judge under any circumstances it is one of the most rigid sentencing provisions in the entire federal criminal code. The only ways to avoid it are: (1) win an acquittal at trial on the § 1028A count; (2) have the § 1028A count dismissed before trial through a successful motion; or (3) negotiate a plea agreement in which the government agrees to drop the § 1028A count. Once the count goes to a guilty verdict or a guilty plea, the 2-year consecutive sentence is automatic. This is why we fight § 1028A harder than any other count in any indictment where it appears.