1 (Slip Opinion) OCTOBER TERM, 2022

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

## SUPREME COURT OF THE UNITED STATES

Syllabus

DUBIN v . UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 22–10. Argued February 27, 2023—Decided June 8, 2023

Petitioner David Dubin was convicted of healthcare fraud under 18

U. S. C. §1347 after he overbilled Medicaid for psychological testing performed by the company he helped manage. The question is whether, in defrauding Medicaid, he also committed “[a]ggravated identity theft” under §1028A(a)(1). Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense, such as healthcare fraud], knowingly transf ers, possesses, or uses, without lawful authority, a means of identi fication of another person.” The Government argued below that §1028A(a)(1) was automatically satis

fied because Dubin’s fraudulent Medi caid billing included the patient’s Medicaid reimbursement number—a “mea ns of identification.” Bound by Fifth Circuit precedent, the District Court allowed Dubin’s convic

tion for aggravated identity theft to stand, even though , in the District Court’s view, the crux of the case was fraudulent billing, not identity theft. The Fifth Circuit sitting en banc affirmed in a fractured deci

sion, with five concurring judges acknowledging that under the Gov

ernment’s reading of §1028A(a)(1), “the elements of [the] offense are not captured or even fairly descri bed by the words ‘identity theft.’ ” 27 F. 4th 1021, 1024 (opinion of Richman, C. J.).
Held : Under §1028A(a)(1), a defendant “uses” another person’s means of

identification “in relation to” a pred icate offense when the use is at the crux of what makes the conduct criminal. Pp. 4–21. (a) This case turns on the scope of two of §1028A(a)(1)’s elements: Dubin was convicted under §1028A(a)(1) for “us[ing]” a patient’s means of identification “in relation to” healthcare fraud. On the Gov

ernment’s view, a defendant “uses” a means of identification “in rela

tion to” a predicate offense if th e defendant employs that means of identification to facilitate or further the predicate offense in some way.2 DUBIN v. UNITED STATES

Syllabus

Section 1028A(a)(1) would thus apply automatically any time a name or other means of identification happe ns to be part of the payment or billing method used in the commission of a long list of predicate of

fenses. Dubin’s more targeted readin g requires that the use of a means of identification have “a genuine nexu s” to the predicate offense. When the underlying crime involves fraud or deceit, as many of §1028A’s predicates do, this entails using a me ans of identification specifically in a fraudulent or deceitful manner, not as a mere ancillary feature of a payment or billing method. A care ful examination of §1028A(a)(1)’s text and structure points to a narrower reading. Pp. 4–5.

(b) The terms “uses” and “in relati on to” have been singled out by this Court as being particularly sens itive to context. The “various def

initions of ‘use’ imply acti on and implementation.” Bailey v. United States , 516 U. S. 137, 145. Beyond th at general concept, however, “ ‘use’ takes on different meanings depending on context.” Id., at 143. This requires looking “not only to th e word itself, but also to the statute and the [surrounding] scheme, to determine the meaning Congress in

tended.” Ibid. “In relation to” is similarly context sensitive. If ex

tended to its furthest reach, “relate to” would be practically limitless. The phrase clearly refers to a relationship or nexus of some kind, but the nature and strength of this rela tionship or nexus will be informed by context. Because the presence of two such contex t-dependent terms renders §1028A(a)(1) doubly attuned to its surroundings, resort to con

text is especially necessary. Pp. 5–7.

(c) Section 1028A(a)(1)’s title and terms both point toward reading the provision to capture the ordinary understanding of identity theft, where misuse of a means of identifi cation is at the crux of the crimi

nality. Pp. 8–15. (1) Section 1028A is a focused, standalone provision, and its title— “Aggravated identity theft”—suggests th at identity theft is at the core of §1028A(a)(1). A statute’s title has long been considered a “ ‘too[l] available for the resolution of a doubt’ about the meaning of a statute.” Almendarez-Torres v. United States , 523 U. S. 224, 234. Section 1028A’s title is especially valuable here because it does not summarize a list of “complicated an d prolific” provisions, Trainmen v. Baltimore & Ohio R. Co. , 331 U. S. 519, 528, and also “reinforces what the text’s nouns and verbs independently suggest,” Yates v. United States , 574 U. S. 528, 552 (A LITO , J., concurring in judgment). The Court has pre

viously observed the contrast between §1028A’s targeted title and the broad title of neighboring provision §1028: “ ‘Fraud and related activity in connection with identification do cuments, authentication features, and information.’ ” Flores-Figueroa v. United States, 556 U. S. 646, 655. That “Congress separated the [identity] fraud crime from the [identity] theft crime in” §1028A suggests that §1028A is focused on3 Cite as: 599 U. S. ____ (2023)

Syllabus

identity theft specifically, rather than all fraud involving means of identification. Ibid.

The Government urges the Court to ignore §1028A’s title, because the Government’s reading of the pr ovision bears little resemblance to ordinary understandings of “identity theft.” This broad reading would, in practice, place garden -variety overbilling at the core of §1028A. In

stead, “identity theft” has a focused meaning: “[T]he fraudulent appro

priation and use of another person’s identifying data or documents,” Webster’s Unabridged Dictionary xi, or “[t]he unlawful taking and use of another person’s identifying info rmation for fraudulent purposes,” Black’s Law Dictionary 894. This understanding of identity theft sup

ports a reading of “in relation to” wh ere use of the means of identifica

tion is at the crux of the underly ing crime. And under these defini

tions, identity theft occurs when a defendant “uses” the means of identification itself to defraud others. Further, the inclusion of “aggra

vated” in §1028A’s title suggests that Congress had in mind a particu

larly serious form of identity thef t, not just all manner of everyday overbilling offenses. Pp. 8–12. (2) Section 1028A(a)(1)’s language points in the same direction as its title. In particular, Congress us ed a trio of verbs that reflect an ordinary understanding of identity theft. Section 1028A(a)(1) applies when a defendant “knowingly transfers

, possesses , or uses , without lawful authority, a means of identifi cation of another person,” “during and in relation to” any predicate offense. (Emphasis added). The two verbs neighboring “uses”—“transfers” and “possesses”—are most nat

urally read in the context of §1028A(a )(1) to connote not only theft, but ordinary understandings of identity theft in particular, i.e., they point to (1) theft of a (2) means of identi fication belonging to (3) another per

son. Because “transfer” and “possess ” channel ordinary identity theft, the interpretative cannon noscitur a sociis (“ ‘a word is known by the company it keeps,’ ” McDonnell v. United States , 579 U. S. 550, 568– 569) indicates that “uses” should be read in a similar manner. In ad

dition, the Court “assume[s] that Congress used [three] terms because it intended each term to a have a particular, nonsuperfluous meaning.” Bailey , 516 U. S., at 146. On a more targeted reading, §1028A(a)(1)’s three verbs capture the complexity of identity theft, which intermin

gles aspects of theft and fraud, mi sappropriation and deceitful use. While “transfer” and “possess” conjure up two steps of theft, “uses” supplies the deceitful use aspect. In contrast, if §1028A(a)(1) is not read in this narrow manner, then the two other verbs risk leaving “uses” without “virtua lly any function.” Ibid . Pp. 12–15.

(d) The list of §1028A(a)(1)’s predicate offenses creates additional problems for the Government’s broad reading. Section 1028A(a)(1)’s enhancement adds a severe 2-year mandatory prison sentence onto4 DUBIN v. UNITED STATES

Syllabus
underlying offenses that do not impo se any mandatory prison sentence at all. The Government’s reading, however, does not meaningfully dis

tinguish between the aggravated id entity theft crime that Congress singled out for heightened punishment and other crimes. Instead, so long as the criteria for the broad pr edicate offenses are met, a defend

ant faces an automatic 2-year sent ence for generic overbilling that happens to use names or other means of identification for routine bill

ing and payment. A far more sensib le conclusion from the statutory structure is that §102 8A(a)(1)’s enhancement ta rgets situations where the means of identification itself is at the crux of the underlying crim

inality, not just an ancilla ry billing feature. Pp. 15–17.

(e) In contrast to the staggering breadth of the Government’s read

ing of §1028A, this Court has “ ‘traditionally exercised restraint in as

sessing the reach of a federal criminal statute,’ ” Marinello v. United States , 584 U. S. ___, ___, and prudentl y avoided reading incongruous breadth into opaque language in criminal statutes. See, e.g., Van Bu

ren v. United States , 593 U. S. ___. The vast sweep of the Govern

ment’s reading—under which ever yday overbilling cases would ac

count for the majority of violations —“underscores the implausibility of the Government’s interpretation.” Id., at ___. While the Government represents that prosecutors will act responsibly in charging defend

ants under its sweeping reading, th is Court “cannot construe a crimi

nal statute on the assumption that the Government will ‘use it respon

sibly.’ ” McDonnell , 579 U. S., at 576. Pp. 17–19. 27 F. 4th 1021, vacated and remanded.

S OTOMAYOR , J., delivered the opinion of the Court, in which R OBERTS , C. J., and T HOMAS , A LITO , K AGAN , K AVANAUGH , B ARRETT , and J ACKSON , JJ., joined. G ORSUCH , J., filed an opinion concurring in the judgment._________________

_________________ 1 Cite as: 599 U. S. ____ (2023)

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the Unit ed States, Washingt on, D. C. 20543, pio@supremecourt.gov , of any typographical or other formal errors. 

## SUPREME COURT OF THE UNITED STATES

No. 22–10

DAVID FOX DUBIN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 8, 2023]

J USTICE S OTOMAYOR delivered the opinion of the Court.There is no dispute that petitioner David Fox Dubin overbilled Medicaid for psychological testing. The question is whether, in defrauding Medicaid, he also committed “[a]ggravated identity theft,” 18 U. S. C. §1028A(a)(1), trig

gering a mandatory 2-year prison sentence. The Fifth Cir

cuit found that he did, based on a reading of the statute that covers defendants who fraudulently inflate the price of a service or good they actually provided. On that sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough. A lawyer who rounds up her hours from 2.9 to 3 and bills her client ele ctronically has committed aggra

vated identity theft. The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method. The text and context of the statute do not support such a boundless interpretation. Instead, §1028A(a)(1) is violated when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method. Here, the crux of petitioner’s overbilling was inflating the value of services actually provided, while2 DUBIN v. UNITED STATES

Opinion of the Court the patient’s means of identification was an ancillary part of the Medicaid billing process.

I David Dubin helped his father manage a psychological services company. This company submitted a claim for re

imbursement to Medicaid for psychological testing by a li

censed psychologist. In fact, however, the claim overstated the qualifications of the employee who actually performed the testing and who was only a licensed psychological asso

ciate. This falsehood inflated the amount of reimburse

ment. Petitioner also changed the date on which the exam

ination occurred. 1 Even with the inflation, the total reimbursement was only $338. App. 49. Petitioner was ac

cordingly charged with health care fraud, a federal offense under 18 U. S. C. §1347. According to the Government, however, petitioner’s condu ct also constituted “[a]ggra

vated identity theft” under §1028A(a)(1). Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense], knowingly trans

fers, possesses, or uses, without lawful authority, a means of identification of another person.” The predicate offenses include, among many others, healthcare fraud. §1028A(c)(4). Section 1028A(a)(1) carries a severe penalty: a mandatory minimum sentence of two years in prison “in addition to the punishment” for the predicate offense. According to the Government, this is a clear aggravated identity theft case. The Government argued at trial that §1028A(a)(1) was automatically satisfied because peti

tioner’s fraudulent billing included the patient’s Medicaid reimbursement number (a “means of identification”). The District Court was less sure. “[T]his doesn’t seem to be an aggravated identity theft case” the court explained, as “the

——————

1 The parties dispute whether changing the date affected the availabil

ity of Medicaid reimbursement. The Court does not reach that question, as the outcome of this case wo uld be the same either way.3 Cite as: 599 U. S. ____ (2023)

Opinion of the Court whole crux of this case is how [petitioner was] billing.” App. 37–38. This overbilling was “criminal,” but it “wasn’t ag

gravated identity theft.” Id. , at 38. Nevertheless, the Dis

trict Court denied petitioner’s po st-trial challenge to his ag

gravated identity theft conviction, explaining that contrary Fifth Circuit precedent tied its hands. The court said that it “hope[d]” it would “get reversed.” Id. , at 39. On appeal, a Fifth Circuit panel affirmed. On rehearing en banc, a fractured court affirmed again. Five judges who agreed with the Government nonetheless acknowledged that under the Government’s reading of §1028A(a)(1), “the elements of [the] offense are not captured or even fairly de

scribed by the words ‘identity theft.’ ” 27 F. 4th 1021, 1024 (2022) (Richman, C. J., concurring). Eight dissenting judges agreed on this point. This type of prosecution is not uncommon. The Govern

ment has, by its own admission, wielded §1028A(a)(1) well beyond ordinary understandings of identity theft. One prosecution targeted a defend ant who “made a counterfeit handgun permit” for another person, using that person’s real name and at that person’s request. United States v. Spears , 729 F. 3d 753, 754 (CA7 2013) (en banc). Another involved unlicensed doctors who violated the law by “issu[ing] prescriptions that their [actual] patients would then fill at . . . pharmacies.” United States v. Berroa , 856 F. 3d 141, 148, 155–156 (CA1 2017). There was also a pros

ecution involving an ambulance service inflating its reim

bursement rates by “mischaracteriz[ing] the nature of the transports, saying that the pa tients had required stretchers when they had not.” United States v. Michael , 882 F. 3d 624, 628 (CA6 2018) (citing United States v. Medlock , 792 F. 3d 700, 705 (CA6 2015)). Yet another prosecution in

volved a defendant who “provi ded massage services to pa

tients to treat their pain,” but improperly billed this “as a Medicare-eligible physical therapy service.” United States

v. Hong , 938 F. 3d 1040, 1051 (CA9 2019).4 DUBIN v. UNITED STATES

Opinion of the Court
Many lower courts have responded to such prosecutions with more restrained readings of the aggravated identity theft statute. 2 The Fifth Circuit did not. To resolve the conflict in the courts below, this Court granted certiorari, 598 U. S. ___ (2022), and now vacates the judgment of the Fifth Circuit and remands. 3

II A This case turns on two of §1028A(a)(1)’s elements. Of the various possible ways to violate §1028A(a)(1), petitioner was convicted for “us[ing]” a patient’s means of identifica

tion “in relation to” healthcare fraud. The parties offer com

peting readings of these two elements. The Government reads the terms broadly and in isola

tion. On the Government’s view, “[a] defendant uses a means of identification ‘in relation to’ a predicate offense if the use of that means of identification ‘facilitates or fur

thers’ the predicate offense in some way.” Brief for United States 10 (quoting Smith v. United States , 508 U. S. 223, 232 (1993)). As to “uses,” the Government seems just to mean “employ[s]” in any sense. Brief for United States 5, 7, 10–11. Section 1028A(a)(1) would thus apply automati

cally any time a name or other means of identification hap

pens to be part of the payment or billing method used in the commission of a long list of predicate offenses. In other words, virtually all of the time. Petitioner, in response, offers a more targeted reading. For petitioner, using a means of identification in relation to

——————

2 See Berroa , 856 F. 3d, at 148, 155–157; Michael , 882 F. 3d, at 628; Spears , 729 F. 3d, at 754; Hong , 938 F. 3d, at 1051.

3 The Government argued below that because petitioner did not properly raise certain challenges to his §1028A conviction, he cannot ob

tain relief without meeting the higher bar for plain-error review. The Fifth Circuit below did not decide that question, which this Court leaves for remand.5 Cite as: 599 U. S. ____ (2023)

Opinion of the Court a predicate offense requires “a genuine nexus to the predi

cate offense.” Brief for Petition er 15. On this reading, the means of identification is at the crux of what makes the predicate offense criminal, rather than merely an ancillary feature of a payment method. When the underlying crime involves fraud or deceit, as m any of §1028A’s predicates do, this entails using a means of identification specifically in a fraudulent or deceitful manner. To illustrate, petitioner borrows a heuristic from the Sixth Circuit. See Michael , 882 F. 3d, at 628. The relevant language in §1028A(a)(1) “covers misrepresenting who re

ceived a certain service,” but not “fraudulent claims regard

ing how or when a service was performed.” Brief for Peti

tioner 15. In other words, fraud going to identity, not misrepresentation about services actually provided. Take an ambulance service that actually transported patients but inflated the number of miles driven. The crux of this fraud was “how” services were rendered; the patients’ names were part of the billing process, but ancillary to what made the conduct fraudulent. See Michael , 882 F. 3d, at 628–629. In contrast, take the pharmacist who swipes in

formation from the pharmacy’s files and uses it to open a bank account in a patient’s name. That “misuse of th[e] means of identification” would be “integral to” what made the conduct fraudulent, bec ause misrepresentation about who was involved was at the crux of the fraud. Id. , at 629. In deciding between the parties’ readings, one limited and one near limitless, precedent and prudence require a careful examination of §1028A(a)(1)’s text and structure. While “uses” and “in relation to” are, in isolation, indeter

minate, the statutory context, taken as a whole, points to a narrower reading.

B In interpreting the scope of “u ses” and “in relation to,” the Court begins with those terms themselves. Both terms6 DUBIN v. UNITED STATES

Opinion of the Court
have been singled out by this Court as particularly sensitive to context, and they do not, standing alone, conclusively re

solve this case. Start with “uses.” As the Court has observed more than once, “the word ‘use’ poses some interpretational difficulties because of the different me anings attributable to it.” Bailey

v. United States , 516 U. S. 137, 143 (1995); see also Leocal

v. Ashcroft , 543 U. S. 1, 9 (2004). The “ ‘ordinary or natural meaning’ ” of “ ‘use’ ” is “variously defined as ‘[t]o convert to one’s service,’ ‘to employ,’ ‘to avail oneself of,’ and ‘to carry out a purpose or action by means of.’ ” Bailey , 516 U. S., at 145. “These various definitions of ‘use’ imply action and im

plementation.” Ibid. Beyond that general concept, how

ever, “ ‘use’ takes on different meanings depending on con

text,” and because it “draws meaning from its context, . . . we will look not only to the word itself, but also to the stat

ute and the [surrounding] scheme, to determine the mean

ing Congress intended.” Id.

, at 143; see also Leocal , 543 U. S., at 9 (“Particularly when interpreting a statute that features as elastic a word as ‘use,’ we construe language in its context and in light of the terms surrounding it”). For example, the federal arson statute only applies to buildings “ ‘used in’ commerce or commerce-affecting activ

ity.” Jones v. United States , 529 U. S. 848, 850–851 (2000). In that statutory context, the Court distinguished between uses of a building as “the locus of any commercial undertak

ing,” and noncovered “passive,” “passing,” or ancillary uses of a building “as collateral to obtain and secure a mortgage” or to obtain an insurance policy. Id. , at 855–856. It is stat

utory context, therefore, that determines what kind of ac

tive employment or conversion to one’s service triggers §1028A(a)(1)’s harsh penalty. “In relation to” is similarl y context sensitive. If “ ‘relate to’ were taken to extend to th e furthest stretch of its inde

terminacy, then for all practi cal purposes” there would be7 Cite as: 599 U. S. ____ (2023)

Opinion of the Court
no limits, as “ ‘[r]eally, universally, relations stop no

where.’ ” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co. , 514 U. S. 645, 655 (1995) (quoting H. James, Roderick Hudson xli (New York ed., World’s Classics 1980)). This language thus cannot be “con

sidered in isolation,” Maracich v. Spears , 570 U. S. 48, 59 (2013), and the Court must “go beyond the unhelpful text and the frustrating difficulty of defining [this] key term” and look to statutory context. Travelers , 514 U. S., at 656. That the phrase refers to a relationship or nexus of some kind is clear. See Smith , 508 U. S., at 238 (“ ‘[I]n relation to’ ” requires “some purpose or effect” between two things). Yet the kind of relationship required, its nature and strength, will be informed by context. The presence of two such context-dependent terms ren

ders §1028A(a)(1) doubly attuned to its surroundings. The parties’ competing readings both fall within the range of meanings of “uses” and “in relation to,” taken alone. Resort to context is thus especially necessary here. 4

——————

4 The Government tries to head off any contextual analysis at the pass, urging that “uses” and “during and in relation to” in §1028A(a)(1) must be read identically to Smith and other of this Court’s cases interpreting 18 U. S. C. §924(c)(1)(A). That provis ion applies to “any person who, dur

ing and in relation to any crime of vi olence or drug trafficking crime .

. . uses or carries a firearm.” One need look no further than this Court’s §924(c) case law to see why this argument fails. The teaching of those cases is that because “use” “draws mean ing from its context, . . . we will look not only to the word itself, but also to the statute and the [broader] scheme.” Bailey v. United States , 516 U. S. 137, 143 (1995). Section 1028A(a)(1) differs greatly from §924(c), from the thing that is “used,” to the title, to the nature of the pred icate offenses to which the enhance

ment relates. Words can wound, but names and numbers are not guns. If anything, the ubiquity of names and their vast range of “uses” makes the verb especially indeterminate in th is context. For that same reason, the Court’s decision today does not alter its §924(c) case law.8 DUBIN v. UNITED STATES

Opinion of the Court

C Having found the key terms “u se” and “in relation to” in

determinate, the next step is to look to their surrounding words. After all, “a statute’s meaning does not always turn solely on the broadest imaginable definitions of its compo

nent words.” Epic Systems Corp. v. Lewis , 584 U. S. ___, ___ (2018) (slip op., at 23) (internal quotation marks omit

ted). Instead, “[l]inguistic and statutory context also mat

ter.” Ibid. Even in cases where “the literal language of the statute is neutral” in isolation, reading “the whole phrase” can point to a more targeted reading. Marinello v. United States , 584 U. S. ___, ___–___ (2018) (slip op., at 4–5). Such is the case here. Section 1028A(a)(1)’s title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft. This cuts against the Government’s broad reading, which the Government admits bears little relationship to the common understanding of identity theft. In contrast, a more tar

geted reading accurately captures the ordinary understand

ing of identity theft, where misuse of a means of identifica

tion is at the crux of the criminality.

1 Start at the top, with the words Congress chose for §1028A’s title: “Aggravated identity theft.” 118 Stat. 831. This Court has long considered that “ ‘the title of a statute and the heading of a section’ are ‘tools available for the res

olution of a doubt’ about the meaning of a statute.” Almendarez-Torres v. United States , 523 U. S. 224, 234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co. , 331 U. S. 519, 528–529 (1947)). A title will not, of course, “override the plain words” of a statute. Fulton v. Philadelphia, 593 U. S. ___, ___ (2021) (slip op., at 9). Yet here, the key terms are so “elastic” that they must be construed “in light of the terms surrounding [them],” Leocal , 543 U. S., at 9, and the9 Cite as: 599 U. S. ____ (2023)

Opinion of the Court
title Congress chose is among those terms. Even the Gov

ernment acknowledged that if the terms in §1028A(a)(1) are unclear, “the title is a useful clue.” Tr. of Oral Arg. 80. Two additional points bolster this approach. First, the title here is not serving the unenviable role of pithily sum

marizing a list of “complicated and prolific” provisions. Trainmen , 331 U. S., at 528. Section 1028A is a focused, standalone provision. Second, a title is “especially valuable [where] it reinforces what the text’s nouns and verbs inde

pendently suggest.” Yates v. United States , 574 U. S. 528, 552 (2015) (A LITO , J., concurring in judgment). As ex

plained below, §1028A(a)(1)’s text independently suggests a focus on identity theft. See infra , at 12–15. Indeed, this Court has already once used §1028A’s title and place in the statutory scheme to shed light on its text. In Flores-Figueroa v. United States , 556 U. S. 646 (2009), this Court pointed out that a neighboring provision, §1028, carries the broad title “ ‘Fraud and related activity in con

nection with identification documents, authentication fea

tures, and information.’ ” Id. , at 655. Section 1028A, in con

trast, is far more targeted, “us[ing] the words ‘identity theft .’ ” Ibid. That “Congress separated the [identity] fraud crime from the [identity] theft crime in” §1028A suggests that §1028A is focused on identity theft specifically, rather than all fraud involving means of identification. Ibid. 5 Given that, it is abundantly clear why the Government urges the Court to ignore the title. The Government’s broad reading, covering any time another person’s means of iden

tification is employed in a way that facilitates a crime,

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5 Flores-Figueroa held that under §1028A(a)(1) a defendant must know “that the ‘means of identification’ he or she unlawfully transferred, pos

sessed, or used, in fact, belonged to ‘another person.’ ” 556 U. S., at 647. The Court not only looked to §1028A(a)(1)’s theft-focused title and role in the statutory structure, but also drew on an understanding that the provision covers “classic identity theft.” Id.

, at 655–656.10 DUBIN v. UNITED STATES

Opinion of the Court bears little resemblance to any ordinary meaning of “iden

tity theft.” Consider again an unlicensed doctor who fills out a prescription actually requested by a patient; no one would call that identity theft. Even judges below who agreed with the Government’s reading of §1028A(a)(1), and ultimately the Government itself, acknowledged that its reading of §1028A(a)(1) does not fairly capture the ordinary meaning of identity theft. Nor is the difference just around the edges; the Government’s reading would, in practice, place garden-variety overbilling at the core of §1028A. Instead, “identity theft” has a focused meaning. One dic

tionary defines identity theft as “the fraudulent appropria

tion and use of another person’s identifying data or docu

ments, as a credit card.” Webster’s Unabridged Dictionary xi (2d ed. 2001) (Webster’s). An other similarly offers “[t]he unlawful taking and use of another person’s identifying in

formation for fraudulent purposes; specif[ically] a crime in which someone steals personal information about and be

longing to another, such as a bank-account number or driver’s-license number, and uses the information to de

ceive others.” Black’s Law Dictionary 894 (11th ed. 2019) (Black’s) (defining “identity theft”). 6 This supports a reading of “in relation to” where use of the means of identification is at the crux of the underlying criminality. These definitions re fer to offenses built around what the defendant does with the means of identification in particular. In other words, the means of identification spe

cifically is a key mover in the criminality. This central role played by the means of identification, which serves to des

ignate a specific person’s identity, explains why we say that the “identity” itself has been stolen. See, e.g. , Spears , 729 F. 3d, at 756 (“identity theft” occurs when someone’s “iden

-

——————

6 “Steal[ing]” can, of course, incl ude situations where something was initially lawfully acquired. S ee Black’s 1710 (defining “steal”).11 Cite as: 599 U. S. ____ (2023)

Opinion of the Court
tity has been stolen or misappropriated”). This helps ex

plain why the examples resulting from the Government’s theory do not sound like identity theft. If a lawyer rounds up her hours from 2.9 to 3 and bills her client using his name, the name itself is not specifically a source of fraud; it only plays an ancillary role in the billing process. The same is true for the waiter who substitutes one cut of meat for another; we might say the filet mignon’s identity was sto

len, perhaps, but not the diner’s. This understanding of identity theft also supports a more targeted definition of “uses.” The word “use” appears in these definitions with a specific meaning: Identity theft en

compasses when a defendant “ uses the information to de

ceive others,” Black’s 894 (emphasis added), and “the fraud

ulent . . . use ” of a means of identification, Webster’s xi (emphasis added). In other words, identity theft is commit

ted when a defendant uses the means of identification itself to defraud or deceive. This tracks the Sixth Circuit’s heu

ristic. When a means of identification is used deceptively, this deception goes to “who” is involved, rather than just “how” or “when” services were provided. Use of the means of identification would therefore be at “the locus of [the criminal] undertaking,” rather than merely “passive,” “passing,” or ancillary employment in a crime. Jones, 529 U. S., at 855–856. On top of that, §1028A’s title is not just “identity theft,” but “Aggravated identity theft.” Typically, “[a]n ‘aggra

vated’ offense is one ‘made worse or more serious by circum

stances such as violence, the presence of a deadly weapon, or the intent to commit another crime.’ ” CarachuriRosendo v. Holder , 560 U. S. 563, 574 (2010) (quoting Black’s Law Dictionary 75 (9th ed. 2009)). This suggests that Congress had in mind a particularly serious form of identity theft. Yet the Government’s reading “would applyan ‘aggravated’ . . . label” to all manner of everyday overbilling offenses. Carachuri-Rosendo , 560 U. S., at 574. “Of12 DUBIN v. UNITED STATES

Opinion of the Court course . . . Congress, like ‘Humpty Dumpty,’ has the power to give words unorthodox meanings.” Id. , at 575. Yet where “the Government argues for a result that the English lan

guage tells us not to expect, . . . we must be very wary of the Government’s position.” Ibid. (internal quotation marks omitted). The title suggests identity theft is at the core of §1028A(a)(1). On the Government’s reading, however, eve

ryday overbilling would become the most common trigger for §1028A(a)(1)’s severe penalty. This would turn the core of “worse or more serious” identity theft into something the ordinary user of the English language would not consider identity theft at all.

2 The title is, by definition, ju st the beginning. A title does not supplant the actual text of the provision, as the Govern

ment observes. The problem for the Government is that §1028A(a)(1)’s language points in the same direction as its title. In particular, Congress used a trio of verbs that reflect an ordinary understanding of identity theft. While “uses” is indeterminate in isolation, here it has company. Section 1028A(a)(1) applies when a defendant “knowingly transfers

, possesses , or uses , without lawful au

thority, a means of identification of another person,” “dur

ing and in relation to” any predicate offense. (Emphasis added.) “Under the familiar interpretive canon noscitur a sociis , ‘a word is known by the company it keeps.’ ” McDon

nell v. United States , 579 U. S. 550, 568–569 (2016) (quot

ing Jarecki v. G. D. Searle & Co. , 367 U. S. 303, 307 (1961)). “[T]his canon is often wisely applied where a word is capa

ble of many meanings in order to avoid the giving of unin

tended breadth to the Acts of Congress.” McDonnell , 579 U. S., at 569 (internal quotation marks omitted). The two neighboring verbs here, “transfers” and “pos

sesses,” are most naturally read in the context of13 Cite as: 599 U. S. ____ (2023)

Opinion of the Court §1028A(a)(1) to connote theft. While it is not necessary to determine the precise metes and bounds of these two verbs, their role in the provision points to this targeted reading. Section 1028A(a)(1) covers unlawful possession or transfer of a means of identification be longing to “another person.” Generally, to unlawfully “posse ss” something belonging to another person suggests it has been stolen. And to unlaw

fully “transfer” something belong ing to another person sim

ilarly connotes misappropriating it and passing it along. In Flores-Figueroa , this Court drew a similarly intuitive link between a defendant taking a means of identification he knows belongs to another person and “ ‘theft.’ ” 556 U. S., at 655. The Government, at argument, agreed: these two verbs “refer to circumstances in which the information is stolen.” Tr. of Oral Arg. 90. 7 “Transfer” and “possess” not only connote theft, but iden

tity theft in particular. The verbs point to (1) theft of a (2) means of identification belong ing to (3) another person. That tracks ordinary understandings of identity theft: “a crime in which someone [1] stea ls [2] personal information about and [3] belonging to another.” Black’s 894. Similarly, “the [1] fraudulent appropriation and use of [3] another per

son’s [2] identifying data or documents.” Webster’s xi. If this parallel were not enough, §1028A(a)(1)’s title indicates that the type of theft its verbs connote is identity theft spe

cifically. Because “transfer” and “po ssess” channel ordinary iden

tity theft, noscitur a sociis indicates that “uses” should be

——————

7 Those who find legislative history helpful will find yet further sup

port. “[P]ossesses” refers to “s omeone who has wrongly acquired an

other’s means of identification, but has not yet put it to use or transferred it elsewhere.” H. R. Rep. No. 108– 528, p. 10 (2004). “[T]ransfers” is when the defendant “transf erred it to another person or location where it can be put to use.” Ibid. And “uses” is when “a defendant . . . obtained someone else’s means of identificati on and actually put that means of identification to use.” Ibid.14 DUBIN v. UNITED STATES

Opinion of the Court
read in a similar manner to its companions. See McDon

nell , 579 U. S., at 568–569. “Uses” is quite amenable to such a reading, and not just because of its indeterminacy. As explained above, “using” another person’s means of iden

tification to deceive or defraud is a common feature of iden

tity theft. See Webster’s xi (“the fraudulent . . . use ” of a means of identification (emphasis added)); Black’s 894 (when a defendant “ uses the information to deceive others” (emphasis added)). Congress thus employed a trio of verbs that capture var

ious aspects of “classic identity theft.” Flores-Figueroa , 556 U. S.

, at 656. There is “the defendant [who] has gone through someone else’s trash to find discarded credit card and bank statements,” ibid. , and thus has taken possession unlawfully. There is the bank employee who passes along customer information to an accomplice, and thus transfers it unlawfully. Then there is use involving fraud or deceit about identity: “a defendant [who] has used another per

son’s identification informatio n to get access to that per

son’s bank account.” Ibid. Another canon of construction offers a further point in fa

vor of this narrow interpretation. The Court “assume[s] that Congress used [three] ter ms because it intended each term to a have a particular, nonsuperfluous meaning.” Bai

ley , 516 U. S., at 146. Reading §1028A(a)(1)’s operative verbs as tracking aspects of classic identity theft, each verb has an independent role to play. As the definitions reveal, identity theft covers both when “someone steals personal in

formation about and belonging to another . . . and uses the information to deceive others,” Black’s 894 (emphasis added), and “fraudulent appropriation and use, ” Webster’s xi (emphasis added). Identity theft thus intermingles as

pects of theft and fraud, misappropriation and deceitful use. Section 1028A(a)(1)’s three verbs capture this complexity. While “transfer” and “possess” conjure up two steps of theft, “uses” supplies the deceitful use aspect.15 Cite as: 599 U. S. ____ (2023)

Opinion of the Court In contrast, if §1028A(a)(1)’s verbs do not track identity theft and if the means of identification need only facilitate the predicate offense, the other two verbs threaten to leave “uses” without “virtually any function.” Bailey , 516 U. S., at 146. Return to a definition of “in relation to” that just means “ ‘facilitates or furthers’ the predicate offense in some way.” Brief for United Stat es 10. In virtually all cases where a defendant employs a means of identification to fa

cilitate a crime, the defendant will also possess or transfer the means of identification in a way that facilitates the crime. For example, petitioner ’s possession of the patient’s means of identification facilitated the fraud, as did peti

tioner’s transfer of the patient’ s means of identification to Medicaid. It is hard to imagine when “uses” would not sim

ilarly be covered by, at least, one of the two other verbs. This risk of superfluity suggests giving §1028A(a)(1) a more precise reading. In sum, §1028A(a)(1)’s title and text are mutually rein

forcing. Both point toward re quiring the means of identifi

cation to be at the crux of the criminality.

D Section 1028A’s list of predicate offenses points to yet an

other stumbling block for the Go vernment’s broad reading. Section 1028A(a)(1) is an enhancement, and a severe one at that. It adds a 2-year mandatory prison sentence onto un

derlying offenses that do not impose a mandatory prison sentence of any kind. See, e.g. , 18 U. S. C. §1035 (“[f]alse statements relating to health care matters,” setting no min

imum sentence). This prevents sentencing judges from con

sidering the severity of the offense, even if the amount of money involved was quite small or there are other mitigat

ing factors. Interpretation of §1028A(a)(1) should thus re

flect the “distinction between” the aggravated identity theft crimes that “Congress sought to distinguish for heightened punishment and other crimes.” Leocal , 543 U. S., at 11.16 DUBIN v. UNITED STATES

Opinion of the Court Far from distinguishing, the Government’s reading col

lapses the enhancement into the enhanced. Here, the Gov

ernment claims that because petitioner’s overbilling was fa

cilitated by the patient’s Medicaid reimbursement number, §1028A(a)(1) automatically applie s. Patient names or other identifiers will, of course, be involved in the great majority of healthcare billing, whether Medicare for massages, Hong , 938 F. 3d, at 1051, or for ambulance stretcher ser

vices, Medlock , 792 F. 3d, at 706. Patient names will be on prescriptions, Berroa , 856 F. 3d, at 148, 155–156, and pa

tients committing fraud on their own behalf will often have to include the names of others on their forms, such as doc

tors or employers. Under the Government’s own reading, such cases are “automatically identity theft,” Tr. of Oral Arg. 82, independent of whether the name itself had any

thing to do with the fraudulent aspect of the offense. Nor are these implications confined to healthcare. Sec

tion 1028A(a)(1)’s predicates include a vast array of of

fenses, including wire fraud and mail fraud. §1028A(c)(5). The Government’s boundless reading of “uses” and “in rela

tion to” would cover facilitating mail fraud by using another person’s name to address a letter to them. 8 Even beyond

——————

8 To avoid this, the Government has ad vanced a medley of shifting and inconsistent readings of “without la wful authority,” another element of §1028A(a)(1). Sometimes the Government has claimed that a defendant would not violate §1028A(a)(1) if they had permission to use a means of identification to commit a crime. See Brief for United States 32 (“every

one is presumed to have permission to use other people’s names” in cer

tain ways to facilitate crimes, such as addressing a letter); id. , at 31–32 (a defendant can have “lawful authority” to use a co-conspirator’s name to commit bank fraud). Other times th e Government has argued that no one ever has permission to commit a crime. App. 32 (a person “can’t give someone [else] permission” to use thei r name to facilitate a crime); Tr. of Oral Arg. 91–92 (doctor would violate §1028A(a)(1) even if patient granted permission to use his name in the fraud). The Court need not, and does not, reach the proper interp retation of “without lawful author

ity.” Suffice it to say, these attempts to rein in §1028A(a)(1) through17 Cite as: 599 U. S. ____ (2023)

Opinion of the Court
that, names or other means of identification are used rou

tinely for billing and payment, whether payment apps, credit and debit cards, a bill sent by mail, or an invoice sent electronically. So long as the criteria for the broad predi

cate offenses are met, the Go vernment’s reading creates an automatic 2-year sentence for generic overbilling that hap

pens to use ubiquitous payment methods. A far more sensible conclusion from the statutory struc

ture is that §1028A(a)(1)’s enhancement is not indiscrimi

nate, but targets situations where the means of identifica

tion itself plays a key role—one that warrants a 2-year mandatory minimum. This points once more to a targeted reading, where the means of identification is at the crux of the underlying criminality, not an ancillary feature of bill

ing.

E If more were needed, a final clue comes from the stagger

ing breadth of the Government’s reading. This Court has

“ ‘traditionally exercised restra int in assessing the reach of a federal criminal statute.’ ” Marinello , 584 U. S., at ___ (slip op., at 9) (quoting United States v. Aguilar , 515 U. S. 593, 600 (1995)); see also Arthur Andersen LLP v. United States , 544 U. S. 696, 703–704 (2005); McBoyle v. United States , 283 U. S. 25, 27 (1931). This restraint arises “both out of deference to the prerogatives of Congress and out of concern that a fair warning should be given to the world in language that the common world will understan[d] of what the law intends to do if a certain line is passed.” Marinello

, 584 U. S., at ___ (slip op., at 4) (internal quotation marks omitted). After all, “[c]rimes are supposed to be defined by the legislature, not by clever prosecutors riffing on equivo

cal language.” Spears , 729 F. 3d, at 758.

—————— another element of the statute show that the Government itself under

stands the problems that arise from its sweeping reading of “uses” and “in relation to.”18 DUBIN v. UNITED STATES

Opinion of the Court
Time and again, this Court has prudently avoided read

ing incongruous breadth into opaque language in criminal statutes. In Van Buren v. United States , 593 U. S. ___ (2021), the “far-reaching consequences” of the Govern

ment’s reading “underscore[d] the implausibility of the Gov

ernment’s interpretation.” Id. , at ___ (slip op., at 17). In Marinello , the Court rejected the Go vernment’s reading of a statute about obstructing administration of the Tax Code that would have swept in the “person who pays a babysitter $41 per week in cash without withholding taxes,” as well as someone who “leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to pr ovide every record to an ac

countant.” 584 U. S., at ___ (slip op., at 7). Nor was all such conduct innocent, as the statute required an individual to act “ ‘corruptly.’ ” Id ., at ___ (slip op., at 8). Even still, “[h]ad Congress intended” to sweep so far, “it would have spoken with more clarity than it did.” Id. , at ___ (slip op., at 7). In Yates , the Court held that the Government’s “unrestrained” reading would have turned a provision focused on “records” and “documents” into “an all-encompassing ban on the spo

liation of evidence” that would “sweep within its reach physical objects of every kind,” including a fish. 574 U. S., at 536, 540 (plurality opinion). Had Congress set out to do so, “one would have expected a clearer indication of that in

tent.” Ibid. So too here. The Governme nt’s reading would sweep in the hour-inflating lawyer, the steak-switching waiter, the building contractor who tacks an extra $10 onto the price of the paint he purchased. So long as they used various com

mon billing methods, they would all be subject to a manda

tory two years in federal prison. To say that such a result19 Cite as: 599 U. S. ____ (2023)

Opinion of the Court
is implausible would be an understatement. 9 Because eve

ryday overbilling cases would acco unt for the majority of vi

olations in practice, the Government’s reading places at the core of the statute its most improbable applications. Finally, the Government makes a familiar plea: There is no reason to mistrust its sweeping reading, because prose

cutors will act responsibly. To this, the Court gives a just

as-familiar response: We “cannot construe a criminal stat

ute on the assumption that the Government will ‘use it re

sponsibly.’ ” McDonnell , 579 U. S., at 576 (quoting United States v. Stevens , 559 U. S. 460, 480 (2010)). “[T]o rely upon prosecutorial discretion to narrow the otherwise wide-rang

ing scope of a criminal statute’s highly abstract general statutory language places great power in the hands of the prosecutor.” Marinello , 584 U. S., at ___ (slip op., at 9). This concern is particularly salient here. If §1028A(a)(1) applies virtually automatically to a swath of predicate of

fenses, the prosecutor can hold the threat of charging an additional 2-year mandatory prison sentence over the head of any defendant who is considering going to trial.

III All the points above are different wells drawing from the same source. The Court need not decide whether any of these points, standing alone, would be dispositive. Taken together, from text to contex t, from content to common sense, §1028A(a)(1) is not amenable to the Government’s attempt to push the statutory envelope. A defendant “uses” another person’s means of identification “in relation to” a predicate offense when this use is at the crux of what makes

——————

9 Even the Government had trouble st omaching some of these results, offering inconsistent accounts of certain examples. The Government claimed, for example, that if “an applicant for a bank loan . . . slightly inflates his salary while correctly identifying the co-signer,” “the inclu

sion of the co-signer’s name is not ‘i n relation to’ the fraud.” Brief for United States 31–32 (some internal quotation marks omitted). This can

not be squared with the Government’s own “facilitates” standard.20 DUBIN v. UNITED STATES

Opinion of the Court the conduct criminal. To be clear, being at the crux of the criminality requires more than a causal relationship, such as “ ‘facilitation’ ” of the offense or being a but-for cause of its “success.” Post , at 3, 5–6 (G ORSUCH , J., concurring in judgment). Instead, with fraud or deceit crimes like the one in this case, the means of identification specifically must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identi ty can often be succinctly sum

marized as going to “who” is involved. 10 Here, petitioner’s use of th e patient’s name was not at the crux of what made the underlying overbilling fraudulent. The crux of the healthcare fraud was a misrepresentation about the qualifications of petitioner’s employee. The pa

tient’s name was an ancillary feature of the billing method employed. The Sixth Circuit’s more colloquial formulation is a helpful guide, though like any rule of thumb it will have its limits. Here, however, it neatly captures the thrust of the analysis, as petitioner’s fraud was in misrepresenting how and when services were provided to a patient, not who received the services.

——————

10 Adrift in a blizzard of its own hy potheticals, the co ncurrence believes that it is too difficult to discern when a means of identification is at the crux of the underlyi ng criminality. Post , at 4. The concurrence’s bewil

derment is not, fortunately, the standard for striking down an Act of Con

gress as unconstitutionally vague. Th ere will be close cases, certainly, but that is commonplace in crimina l law. Equally commonplace are re

quirements that something play a spec ific role in an offense, whether that role is articulated as a “nexus,” Marinello v. United States , 584 U. S. ___, ___ (2018) (slip op., at 10), a “locus,” Jones v. United States , 529 U. S. 848, 855–856 (2000), or “proximate cause,” Robers v. United States , 572 U. S. 639, 645 (2014). Such requirements are not always simple to apply. Yet resolving hard cases is part of the judicial job description. Hastily resorting to vagueness doctrine, in contrast, would hobble legislatures’ ability to draw nuanced lines to address a complex world. Such an ap

proach would also leave victims of actual aggravated identity theft, a se

rious offense, without the added protection of §1028A(a)(1).21 Cite as: 599 U. S. ____ (2023)

Opinion of the Court

* * * Because petitioner did not use the patient’s means of identification in relation to a predicate offense within the meaning of §1028A(a)(1), the judgment of the Court of Ap

peals is vacated, and the case is remanded for further pro

ceedings consistent with this opinion.

It is so ordered.G ORSUCH , J., concurring

_________________

_________________ 1 Cite as: 599 U. S. ____ (2023)

G ORSUCH , J., concurring in judgment 

## SUPREME COURT OF THE UNITED STATES

No. 22–10

DAVID FOX DUBIN, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 8, 2023]

J USTICE G ORSUCH , concurring in the judgment. Whoever among you is not an “aggravated identity thief,” let him cast the first stone. The United States came to this Court with a view of 18 U. S. C. §1028A(a)(1) that would affix that unfortunate label on almost every adult Ameri

can. Every bill splitter who has overcharged a friend using a mobile-payment service like Venmo. Every contractor who has rounded up his billed time by even a few minutes. Every college hopeful who has overstated his involvement in the high school glee club. All of those individuals, the United States says, engage in conduct that can invite a mandatory 2-year stint in federal prison. The Court today rightly rejects that unserious po sition. But in so holding, I worry the Court has stumbled upon a more fundamental problem with §1028A(a)(1). That provision is not much bet

ter than a Rorschach test. De pending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyon e. Doubtless, creative pros

ecutors and receptive judges can do the same. Truly, the statute fails to provide even rudimentary notice of what it does and does not criminalize. We have a term for laws like that. We call them vague. And “[i]n our constitutional or

der, a vague law is no law at all.” United States v. Davis

, 588 U. S. ___, ___ (2019) (slip op., at 1). The “[a]ggravated identity theft” statute stipulates that “[w]hoever, during and in relation to any felony violation”G ORSUCH , J., concurring 2 DUBIN v. UNITED STATES

G ORSUCH , J., concurring in judgment listed in a later subsection, “k nowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person shall, in addition to the punishment pro

vided for such felony, be sent enced to a term of imprison

ment of 2 years.” §1028A(a)(1). Today, the Court sets out to determine what conduct that law reaches. It is, as the Court acknowledges, no easy task. Both the term “us[e]” and the phrase “in relation to” can support a multitude of possible meanings. Ante, at 5–7. They of course “ ‘imply action and implementation.’ ” Ante, at 6 (quoting Bailey v. United States , 516 U. S. 137, 145 (1995)). Beyond that “gen

eral concept,” however, we mu st fend for ourselves based only on limited contextual clues. Ante, at 5–7. The United States offers up a rapacious interpretation that would require only “the use of th[e] means of identifi

cation [to] ‘facilitat[e] or furthe[r]’ the predicate offense in

some way .” Brief for United States 10 (emphasis added). Admittedly, this reading “fall[s] within the range” of plau

sible meanings the statute could support. Ante, at 7. But so too do other readings—ones that require a more demand

ing “nexus” between the “means of identification” and the underlying misconduct. Ante , at 7–8. For many of the rea

sons the Court gives (and more besides), I agree that we must adhere to those more restrained offerings. The United States’ maximalist approach has simplicity on its side, yes; an everybody-is-guilty standard is no challenge to adminis

ter. But the Constitution prohibits the Judiciary from re

solving reasonable doubts about a criminal statute’s mean

ing by rounding up to the most punitive interpretation its text and context can tolerate. See Wooden v. United States

, 595 U. S. ___, ___–___ (2022) (G ORSUCH , J., concurring in judgment) (slip op., at 6–9). That insight alone means Mr. Dubin’s §1028A(a)(1) conviction cannot stand. Unfortunately, our opinion cannot end there. Having told lower courts how not to read the statute, we owe them some guidance as to how they should read it. That is where theG ORSUCH , J., concurring 3 Cite as: 599 U. S. ____ (2023)

G ORSUCH , J., concurring in judgment real challenge begins. Drawing on contextual clues and rules of statutory interpretation, the Court concludes that a violation of §1028A(a)(1) occurs whenever the “use of the means of identification is at the crux of the underlying crim

inality.” Ante , at 10 (emphasis added). “In other words, the means of identification specifically” must be in some way “ a key mover in the criminality.” Ibid. (emphasis added). Put still another way, the “means of identification” must play the (or maybe a) “ central role ” in the commission of the of

fense. Ibid. (emphasis added). Setting aside some definite-article inconsistency, those formulations all sound sensible enough. On closer review, however, they present intractabl e interpretive challenges of their own. When, exactly, is a “means of identification” “at the crux,” “a key mover,” or a “central role” player in an of

fense? No doubt, the answer “tu rns on causation, or at least causation often helps to answer the question.” United States v. Michael , 882 F. 3d 624, 628 (CA6 2018). The Court agrees but stresses that “a causal relationship” of any kind will not suffice. Ante, at 20. At the same time, however, it studiously avoids indicating whether the appropriate standard is proximate cause or something else entirely novel. Ibid. All of which gives rise to further questions. In virtually every fraud, a “means of identification” plays some critical role in the fraud’s success—good luck committing a mail or wire fraud, for instance, without relying heavily on the name of the victim and likely the names of other third parties. Just how much “causation” must a prosecutor es

tablish to sustain a §1028A(a)(1) conviction? For that mat

ter, how does one even determine the extent to which a “means of identification” “caused” an offense, as compared to the many other necessary inputs? The Court supplies no firm answer. Instead, it leans on various illustrations that only highlight the difficulties in

herent in this exercise. Take, for instance, the Court’s as

surance that a “waiter who serves flank steak but chargesG ORSUCH , J., concurring 4 DUBIN v. UNITED STATES

G ORSUCH , J., concurring in judgment for filet mignon using an electronic payment method” has not committed aggravated identity theft. Ante, at 1, 11. Why not, exactly? In one sense, the “means of identifica

tion” (the credit card) lies “at the crux” of the fraud. The restaurant uses it to charge the customer for a product it never supplied. Maybe that feels less distasteful than a sce

nario in which an overseas hacker steals an individual’s credit card information and depl oys it to order luxury goods on Amazon. But the Constitution’s promise of due process means that criminal statutes must provide rules “knowable in advance,” not intuitions discoverable only after a prose

cutor has issued an indictment and a judge offers an opin

ion. Percoco v. United States , 598 U. S. ___, ___ (2023) (G ORSUCH , J., concurring in judgment) (slip op., at 6). Not yet convinced? Consider some tweaks to the Court’s hypothetical. Suppose that, instead of misrepresenting the cut of its steaks, a restaurant charged a customer for an appetizer he ordered that neve r arrived. What about an appetizer he never ordered? An additional entrée? Three? Three plus a $5,000 bottle of Moët? How about a Boeing 737? Now suppose the restaurant ran the customer’s credit card for the same steak twice. What if it waited an hour to do so? A day? A year? What if the waiter gave the credit card information to a different employee at the same res

taurant to run the charge? A different employee at a differ

ent restaurant? What if the restaurant sold the customer’s credit card information on the dark web, and another res

taurant ran the card for filet mignon? On the Court’s tell

ing, the “crux” of the fraud in some of these examples lies merely in “ how and when services were provided,” while in others the “crux” involves “ who received the services.” Ante, at 20. But how to tell which is which? The Court’s “crux” test seem ingly offers no sure way through this “blizzard of . . . hypotheticals.” Ibid. , n. 10. Nor is that because I have cherry-picked “hard cases.” Ibid. Scenarios like these—and variations of them—illustrateG ORSUCH , J., concurring 5 Cite as: 599 U. S. ____ (2023)

G ORSUCH , J., concurring in judgment the sorts of problems that invariably arise in even simple §1028A(a)(1) cases involving bogus restaurant bills. Other contexts can present still greater complications and still deeper uncertainties. The problem we face, then, is not that §1028A(a)(1) presents some hard cases at its edges; the problem is this statute has no easy cases. Really, you could spend a whole day cooking up scenarios—ranging from the mundane to the fanciful—that collapse even your most basic intuitions about what §1028A(a)(1) does and does not criminalize. Try making up some of your own and running them by a friend or family member. You may be surprised at how sharply instincts diverge. For the less adventurous, consider just the facts of the case now before us. On one framing, it seems outrageous to convict Mr. Dubin of aggravated identity theft. After all, the patient did (at one point) receive psychological testing. So you might say, as the Court does, that Mr. Dubin lied only about the qualifications of the individual who provided those services and the date on which they occurred. See ante, at 2, 20. But on another framing, the patient’s iden

tity was “a key mover,” perhaps even “at the crux,” of the fraud. Mr. Dubin could not have successfully billed the in

surance provider without accurately offering up some spe

cific patient’s name and information. Nor, as the United States notes, could Mr. Dubi n have simply drawn a random name from a hat. Rather, his fraud depended on purloining the specific identity of a “T exas Medicaid enrollee who had at least three hours of psycho logical-testing reimbursement left in his or her account.” Brief for United States 13. Along the way, Mr. Dubin’s fraud directly harmed the patient bydepriving him of his annual eligibility for otherwisecompensable psychological services. From the patient’s perspective, Mr. Dubin’s use of his “means of identification” could hardly feel “ancillary.” Ante , at 1–2. As an abstract exercise, debating fact patterns like these may seem good fun. But there is nothing entertainingG ORSUCH , J., concurring 6 DUBIN v. UNITED STATES

G ORSUCH , J., concurring in judgment about a 2-year mandatory federal prison sentence. Crimi

nal statutes are not games to be played in the car on a crosscountry road trip. To satisfy the constitutional minimum of due process, they must at least provide “ordinary people” with “fair notice of the conduct [they] punis[h].” Johnson v. United States , 576 U. S. 591, 595 (2015). And, respectfully, I do not see how §1028A(a)(1) can clear that threshold. Un

der the Court’s “crux” test, no boundary separates conduct that gives rise to liability from conduct that does not. And it appears I share this concern with the very lower court judges who will have to apply this standard prospectively. As even many of the Fifth Circuit dissenters below warned, the sort of “facilitation standard” the Court today adopts, “with its incidental/integral dividing line,” is unworkable because it “lacks clear lines and a limiting principle.” 27 F. 4th 1021, 1042 (2022) (en banc) (Costa, J., dissenting). In the end, it is hard not to worry that the Court’s “crux” test will simply become a fig leaf for judges’ and jurors’ own sub

jective moral judgments about whether (as the Court itself puts it) the defendant’s crime is “one that warrants a 2-year mandatory minimum.” Ante, at 17. I do not question that the Court today has done the best it might to make sense of this statute. It’s just that it faces an impossible task. In the past when this Court has grap

pled with similar statutory language, it has done so in con

texts where the relevant terms could carry only a few pos

sible (and comparatively fixed) meanings. For example, when it comes to the “us[e]” of a firearm “in relation” to a crime of violence, 18 U. S. C. §924(c)(1)(A), the presence of a gun could be a but-for cause of (or a necessary ingredient of ) the offense—used, for example, as compensation in an exchange for illicit drugs. Smith v. United States , 508 U. S. 223, 237–238 (1993). Or the gun could be “‘used as a weapon’ ” by being discharged or brandished. Id., at 243 (Scalia, J., dissenting). Because both those interpretations are relatively bounded and understandable, this CourtG ORSUCH , J., concurring 7 Cite as: 599 U. S. ____ (2023)

G ORSUCH , J., concurring in judgment could use principles of statutory interpretation to choose be

tween them. The same holds true for many of the other statutes the Court (mistakenly) frets I would call into doubt. See ante, at 20, n. 10. The same cannot be said for §1028A(a)(1), though. There are an uncountable number of ways in which an individual could “us[e]” the “means of identification” of another to com

mit fraud. That list covers everything from including a vic

tim’s name in the subject line of a fraudulent email; to mis

representing information on a loan form involving a co

signer; to putting on a wig and walking into a bank with a fake ID. And no obvious neu tral rule exists to separate those “uses” that violate §1028A(a)(1) from others that do not. In this way, §1028A(a)(1) is not just an “ambiguous” statute—“one that does define prohibited conduct with some precision, but [that] is s ubject to two or more different interpretations.” J. Decker, Addressing Vagueness, Ambi

guity, and Other Uncertainty in American Criminal Laws, 80 Denver U. L. Rev. 241, 261 (2002) (emphasis added). In

stead, it is a vague statute—one that “does not satisfactorily define the proscribed conduct” at all. Id. , at 260–261. I do not write this opinion as wishcasting. Perhaps, by applying the Court’s “crux” te st, lower courts will achieve a consistency that has, to date, eluded them. Or perhaps they will, prompted by today’s decision, locate a previously un

seen path through this statutory quagmire. But I would not hold my breath. Section 1028A(a)(1) simply does too little to specify which individuals deserve the inglorious title of “aggravated identity thief.” That is a problem Congress alone can fix. Until it does, I fear the issues that have long plagued lower courts will persis t. And I will not be sur

prised if someday, maybe someday soon, they find their way back here.