Andy Purdy (Chair)

Paula Desio

Linda Maxfield

Courtney Semisch

Paula Biderman

Tom Brown

Jeanneine Gabriel

Greg Gilmore

Cynthia Matthews

Mary Rushen

Identity Theft

Final Report

Economic Crimes Policy Team

December 15, 1999

UNITED STATES SENTENCING COMMISSION
1

See Appendix A.

2

 Pub. L. 105-318(b)(1),Oct. 30, 1998,112 Stat. 3007.

3

Id. at § 4(b).

2

IDENTITY THEFT

Executive Summary

I. Introduction

The “Identity Theft and Assumption Deterrence Act of 1998 (“Act”),” enacted on

October 30, 1998, contains several specific directives to the Sentencing Commission. This Report

details the legislative history, analyzes the key provisions of the new statute, and assesses its

impact upon existing sentencing guidelines. The Report also presents an analysis of Commission

data in the context of the congressional directives, and concludes with an assessment of

preliminary policy options for Commission consideration. The following summary presents the

salient points contained in the Report.

II. Significance of Legislation for the Commission

The Act criminalizes the unauthorized use or transfer of a means of identification with

the intent to commit or to aid or abet any federal violation or state felony, and can result in a

maximum sentence of up to 3, 15, 20, or 25 years depending on whether certain statutorily

enumerated factors are present.1 The Act also directs the Commission to “review and amend the

Federal sentencing guidelines and the policy statements of the Commission, as appropriate, to

provide an appropriate penalty for each offense under section 1028 of title 18, United States Code,

as amended by this Act. . . .”2 Congress also directed the Commission to consider the following

specific factors in this review:3 

• the extent to which the number of victims (as defined in section 3663A(a) of title 18,

United States Code) involved in the offense, including harm to reputation, inconvenience,

and other difficulties resulting from the offense, is an adequate measure for establishing

penalties under the Federal sentencing guidelines;

• the number of means of identification, identification documents, or false identification

documents (as those terms are defined in section 1028(d) of title 18, United States Code, as

amended by this Act) involved in the offense, is an adequate measure for establishing

penalties under the Federal sentencing guidelines;

• the extent to which the value of the loss to an individual caused by the offense is an

adequate measure for establishing penalties under the Federal sentencing guidelines;

• the range of conduct covered by the offense;
4

See Appendix B.

5

18 U.S.C. § 1028(h).

3

• the extent to which sentencing enhancements within the Federal sentencing guidelines and

the court’s authority to sentence above the applicable guideline range are adequate to

ensure punishment at or near the maximum penalty for the most egregious conduct covered

by the offense;

• the extent to which Federal sentencing guidelines sentences for the offense have been

constrained by the statutory maximum penalties;

• the extent to which Federal sentencing guidelines for the offense adequately achieve the

purposes of sentencing set forth in section 3553(a)(2) of title 18, United States Code; and

• any other factor that the United States Sentencing Commission considers to be appropriate.

Prior to the passage of this Act, only the unauthorized use or transfer of identity documents

was illegal under 18 U.S.C. § 1028(a)(1)-(6),4 while the unauthorized use of credit cards, PINs,

ATM codes, and other electronic access devices was illegal under 18 U.S.C. § 1029. The

addition of subsection (a)(7) to section 1028 reflects the rapidly evolving developments in

technology and commerce by which an individual’s “means of identification” can now properly

include information such as social security and other government identification numbers, dates of

birth, and unique biometric data, as well as electronic access devices and routing codes used in

the telecommunications and financial sectors. Recognizing that the new definition of

“identification means” includes prior statutory definitions of “identification documents,” the new

law has structured this relationship by defining a document that contains one or more identification

means as a single identification means.5

The key impact of these new statutory definitions is to make the proscriptions of the

identity theft law applicable to a wide range of offense conduct that can be independently

prosecuted under numerous existing statutes and is covered by a variety of existing sentencing

guidelines. Any unauthorized use of identification means is now properly chargeable either as a

violation of the new law or in conjunction with other federal statutes. Notwithstanding the breadth

of the new law, however, the legislative intent manifested a primary concern with offense conduct

that harms an individual’s credit rating and general reputation. In its most egregious manifestation,

the targeted conduct can be most accurately characterized as identity take-over and assumption. 

Another important change occasioned by the new legislation is the expanded universe of

identifiable victims. Previously, the “victim” generally was considered to be either the

government, as with immigration fraud offenses, or the financial institution that, under principles of

commercial law, sustains the economic loss of a credit card theft or check forgery. Until now, the

individual whose name and other identification means were purloined and misused by the

perpetrator was generally not considered to be a “victim” under most existing criminal statutes and

for sentencing purposes. 
6 Pub. L. 105-318 at § 4(b)(1) (referencing definition of “victim” in 18 U.S.C. § 3663A(a)).

4

The legislative history of the Act makes clear, however, that the protections and

punishment provided by the new law are intended to reach those very instances where

identification means are misused to such an extent as to cause significant harm to an individual. 

Furthermore, these harms are not limited to readily quantifiable monetary losses. For sentencing

purposes, victims are those persons who are “directly and proximately harmed as a result of the

commission of [the] offense.”6

In this same context, the new law delineates two types of such direct and proximate harm

resulting from identity theft—harm to reputation and inconvenience—but also clearly requires that

“other difficulties resulting from the offense” be considered in assessing the total harm to the

victim. 7 Typical examples of such difficulties include: an undeserved poor credit rating that

impedes job opportunities, the ability to obtain financing, or even bankruptcy proceedings. A

more rare but no less egregious harm flowing from identity theft is an unmerited arrest record or

detention by law enforcement personnel.

III. Guideline Application Issues

Two key points emerged from the legal analysis and data study. First, the immigration

guidelines are the guidelines most frequently implicated by offense conduct associated with the

fraudulent or unauthorized use of identification documents under 18 U.S.C. § 1028, prior to its

amendment by the Act. In considering the possibility of penalty increases, the Commission may

wish to assess whether the penalty structure inherent in the applicable immigration guidelines

already sufficiently provides for the misuse of identification means (including documents), and

whether penalty increases under consideration should attach to these offenses, as well as to

offenses with more direct economic ramifications to institutions and individuals.

Second, putting aside the offense conduct that implicates the immigration guidelines, a

great deal of offense conduct involving the misuse of identification means is already prosecuted

under a myriad of fraud statutes and sentenced under either the fraud, theft, or tax guidelines at

§§2F1.1, 2B1.1, and 2T1.1, respectively. These guidelines already provide proportionate

increases for: the amount of pecuniary loss, both actual and intended; more than minimal planning;

more than one victim; and sophisticated means in committing the offense. The consideration of

additional enhancements for the misuse of identification means, which is often a predicate for other

fraudulent offense conduct, will need to take into account the possibility of inadvertent double

counting of heartland offense conduct already contained in existing guidelines.

The following additional issues raised by the new law have important conceptual

implications for the sentencing guidelines, and may well inform the Commission’s consideration of

possible sentencing enhancements.
5

• Because identity theft as defined by the new law can be an element of other offense conduct

(e.g., obstruction of justice, immigration, mail, credit card, and tax fraud, misuse of social

security numbers), as well as a unique and separate offense under the new law, how should

this particular offense conduct be treated for sentencing purposes within the guideline

structure? 

• Did Congress intend to increase the guideline penalties of existing offenses which can

include the misuse of identity means (e.g., immigration, credit card, tax, and bankruptcy

fraud, misuse of social security numbers)?

• How do the statutory requirements for offenses with statutory maxima of 3-, 15-, 20-, and

25-year sentences mesh or conflict with the existing guideline structure?

• How adequate is the guidelines’ definition of “victim” to capture harm to the individual

victims of identity theft, whether or not an institutional victim also exists?

• How adequate is the guidelines’ current measure of “loss” to capture both the indirect

monetary harm and corollary, non-monetary harm to individual victims caused by identity

theft? If such harms are not readily quantifiable in the absence of expert testimony, how

can the guidelines best provide for consideration of such harms without overburdening the

sentencing hearing?

• While some of the factors listed by Congress in the directive are currently taken into

account by some of the existing guidelines (e.g., number of victims within the fraud and

deceit guidelines), how should these factors be taken into account in the context of offenses

where there may be no identifiable individual victim?

IV. Policy Considerations

The information developed through the staff’s legal and quantitative analysis illustrates that

identity theft encompasses a continuum of offense conduct. Such conduct ranges from the most

basic credit card fraud to affirmative acts of generating or “breeding” additional fraudulent

identification means to the extreme instance of complete identity take-over or “assumption.” 

Because the primary issue here is the scope of the conduct that merits increased punishment, a

range of options based on this threshold determination has been developed for the Commission’s

consideration.

Option One presents the broad approach fashioned upon an adjustment in Chapter Three. 

Option Two limits sentencing enhancements and/or departures to the context of economic crimes,

while Option Three is the most narrowly targeted to limiting sentencing enhancements and/or

departures to the context of the fraud and theft guidelines. Finally, Option Four creates a general

upward departure in Chapter Five.

Under the broad approach of Option One, the Commission could provide a sentencing

adjustment in Chapter Three for any offense in which identification means or documents are used. 

This approach would (1) treat all manifestations of the offense conduct the same, from the most
6

basic form of identity theft, such as credit card theft, to the most egregious forms involving identity

assumption; (2) raise penalty levels for virtually every offense in which the misuse of an

identification means is part of the offense conduct; and (3) implicate various non-monetary based

guidelines as well as economic crime guidelines.

Option Two limits sentencing enhancements and/or departures to the context of economic

crimes. This approach is narrower than Option Three and is somewhat consistent with the

primary focus of the legislative history on the financial ramifications of identity theft crimes.

Option Three limits enhancements and/or departures to the fraud and theft guidelines. This

option attempts to target the harm-based considerations and offense conduct considerations

associated with identity theft. (Although these policy considerations are presented in the context of

the theft and fraud guidelines, any policy consideration can be modified to fit within Options One,

Two or Four.) The specific policy options are as follows: 

• Harm-based Considerations—

(a) provide a special rule in the "loss" definition to cover indirect monetary harms in

identity theft cases; 

(b) to the extent that identity theft cases involve access devices, modify the current rule

for minimum loss amounts in credit card cases to cover all access devices; 

(c) give more specific guidance for upward departures when loss does not adequately

cover monetary harms in identity theft cases; 

(d) provide a specific offense characteristic for non-monetary harms or give more

specific guidance for upward departures for such harms.
7

• Offense Conduct Considerations—

(a) provide a specific offense characteristic based on the number of ID means; 

(b) provide a specific offense characteristic based on how the ID means were used; 

(c) provide a specific offense characteristic based on number of victims.

Commission data also show that a high portion of identity theft offenders previously have

been convicted of similar offense conduct at either the federal or state level. Accordingly, this

option raises the possibility of developing an enhancement to take into account prior similar

conduct.

Finally, Option Four proposes a general upward departure provision for Chapter 5. 
8

TABLE OF CONTENTS

Page

Executive Summary ............................................................ i

I. Introduction ............................................................. 1

II. Legal Analysis .......................................................... 2

A. The Statute ....................................................... 2

B. Relevant Guidelines ................................................ 5

1. Fraud-Based Guideline Application .............................. 5

2. Immigration-Based Guideline Application ......................... 6

III. External Sources of Information ............................................. 7

IV. Analysis of Data ......................................................... 9

A. Overview ........................................................ 9

B. Methodology ...................................................... 9

C. Characteristics of the Unauthorized ID Means ........................... 10

1. General Observations ........................................ 10

2. Number and Types .......................................... 11

3. Breeder Documents ......................................... 11

D. Nature of the Offense Conduct ....................................... 14

1. General Observations ........................................ 14

2. Victims ................................................... 14

3. Loss Amounts .............................................. 15

E. Sentencing Outcomes .............................................. 16

1. General Observations ........................................ 16

2. Sentencing Outcomes Under Section 1028 ........................ 17

3. Conduct Relevant to the 15-Year Statutory Maximum ............... 18

4. Conduct Relevant to the 20-Year Statutory Maximum ............... 18

5. Terrorism Conduct Relevant to the 25-Year Statutory Maximum ....... 19

V. Policy Considerations .................................................... 19

Option One ............................................................ 21

Option Two ........................................................... 22

Option Three ........................................................... 23

1. Harm-Based Considerations ................................... 23

2. Offense Conduct Considerations ................................ 25

3. Prior Similar Criminal Conduct ................................ 27

Option Four ........................................................... 28

Appendices ........................................................... viii

Appendices
9

Appendix A: Identify Theft and Assumption Deterrence Act of 1998

Appendix B: Title 18 United States Code § 1028 (1999)

Appendix C: List of Statutes Potentially Involving Identification Means

Appendix D: Explanation of Stratified Sampling

Appendix E: Illustrative Tables: Commission Data Sampling

Table 1 - Law Enforcement Agencies

Table 2 - Number and Type of Identification Means

Table 3 - Nature of Misused Identification Means

Table 4 - Fictitious vs. Actual Individuals

Table 5 - Distribution of Primary Sentencing Guidelines

Table 6 - Application of §2F1.1 Specific Offense Characteristics

Table 7 - Criminal History

Table 8 - Sentencing Outcomes

Table 9 - Chapter Three Adjustments

Appendix F: Illustrative Case Summaries
8

 Pub. L. 105-318(b)(1), Oct. 30, 1998, 112 Stat. 3007. See Appendix A.

9

Id. at § 4(b).

1

I. Introduction

The Identity Theft and Assumption Deterrence Act of 1998, (“Act”), enacted on

October 30, 1998, directs the Commission to “review and amend the Federal sentencing guidelines

and the policy statements of the Commission, as appropriate, to provide an appropriate penalty for

each offense under section 1028 of title 18, United States Code, as amended by this Act. . . .”8

Congress also directed the Commission to consider the following specific factors in this review:9

 

• the extent to which the number of victims (as defined in section 3663A(a) of title 18,

United States Code) involved in the offense, including harm to reputation, inconvenience,

and other difficulties resulting from the offense, is an adequate measure for establishing

penalties under the Federal sentencing guidelines; 

• the number of means of identification, identification documents, or false identification

documents (as those terms are defined in section 1028(d) of title 18, United States Code, as

amended by this Act) involved in the offense, is an adequate measure for establishing

penalties under the Federal sentencing guidelines; 

• the extent to which the value of the loss to an individual caused by the offense is an

adequate measure for establishing penalties under the Federal sentencing guidelines; 

• the range of conduct covered by the offense; 

• the extent to which sentencing enhancements within the Federal sentencing guidelines and

the court’s authority to sentence above the applicable guideline range are adequate to

ensure punishment at or near the maximum penalty for the most egregious conduct covered

by the offense; 

• the extent to which Federal sentencing guidelines sentences for the offense have been

constrained by the statutory maximum penalties; 

• the extent to which Federal sentencing guidelines for the offense adequately achieve the

purposes of sentencing set forth in section 3553(a)(2) of title 18, United States Code; and

• any other factor that the United States Sentencing Commission considers to be appropriate.
10

 The Report was prepared by the staff’s Economic Crimes Policy Team, which is directed by Acting

General Counsel Andy Purdy. Team members designated to take the lead on the identity theft issue are Paula

Desio, Linda Maxfield, and Courtney Semisch. Assistance was provided by Paula Biderman, Tom Brown,

Jeanneine Gabriel, Janeen Gaffney, Greg Gilmore, Cynthia Matthews, and Mary Rushen.

11 “Means of identification” is statutorily defined as “any name or number that may be used, alone or in

conjunction with any other information, to identify a specific individual, including any (A) name, social security

number, date or birth, official State or government issued driver’s license or identification number, alien

registration number, government passport number, employer or taxpayer identification number; (B) unique

biometric data, such as fingerprint, voice print, retina or iris image, or other unique physical representation; (C)

unique electronic identification number, address, or routing code; or (D) telecommunication identifying

information or access device (as [previously] defined in section 1029(e)).” See Appendix B for the full text of 18

U.S.C. § 1028 as amended by the Act.

12 “Identification document” is defined as “a document made or issued by or under the authority of the

United States Government, a State, political subdivision of a State, a foreign government, political subdivision of a

foreign government, an international governmental or an international quasi-governmental organization which,

when completed with information concerning a particular individual, is of a type intended or commonly accepted

for the purpose of identification of individuals.” 18 U.S.C. § 1028 (d)(2). An identification document containing

one or more identification means will be considered a single identification means. 18 U.S.C. § 1028(h).

13 The 15-year statutory maximum of 18 U.S.C. § 1028(b)(1) (A) and (B) continues to apply to the

production or transfer of five or more identification documents irrespective of dollar value involved, or to the

production or transfer of even a single identification document issued by the federal or a state government.

2

Part II of this Report, prepared by the Economic Crimes Policy Team, 10 presents a

detailed analysis of the new law, its legislative history, and relevant guidelines. Part III describes

contacts with law enforcement agencies and consumer protection advocates as part of the staff’s

efforts to determine the frequency and nature of offense conduct involving the misuse of

identification means. Part IV presents the results of the extensive analysis of Commission data that

was developed in an effort to provide systematic, quantitative information on the scope of offense

conduct covered by the new law. The Report concludes in Part V with preliminary policy options

and approaches for the Commission’s consideration in assessing and implementing the

congressional directives to provide appropriate penalties for the offense conduct covered by the

new law.

II. Legal Analysis

A. The Statute

The Act criminalizes the unauthorized use or transfer of a means of identification11 with

the intent to commit or to aid or abet any federal violation or state felony, and can result in a

maximum sentence of up to 3, 15, 20, or 25 years depending on whether certain statutorily

enumerated factors are present. The new definition of “identification means” is very broad and

encompasses the existing definition of “identification document” in 18 U.S.C. § 1028.12

The 15-year statutory maximum attaches to the fraudulent transfer or use of more than one

identification means if more than $1,000 aggregate value is obtained during a one year period.

13
14 144 CONG. REC. S.9503 (daily ed. July 30, 1998) (statement of Sen. Leahy).

15 As Senator Hatch (R-Ut.), a co-sponsor of the legislation, observed, “Unfortunately, these [other

criminal] statutes do little to compensate the victim or address the horror suffered by the individual whose life has

been invaded. Often these general criminal statutes treat only affected banks, credit bureaus, and other financial

institutions as the victim, leaving the primary victim, the innocent person, without recourse to reclaim his or her

life and identity.” 144 CONG. REC. S. 9504 (daily ed. July 30, 1998) (statement of Sen. Hatch).

16 A victim-constituent of Senator Kyl (R-Az), also a co-sponsor of the legislation “spent many hours

working with [the legislative] staff on the identity-theft proposal.” The perpetrator “possessed enough information

3

If the $1,000 monetary threshold is not satisfied within a year, the statutory maximum is three

years. Specified conditions must exist for the enhanced 20- and 25-year statutory maximums. The

20-year statutory maximum attaches if the offense involving identification means or documents is

committed to facilitate certain drug trafficking crimes and crimes of violence, as well as to the

second conviction under the new law. The 25-year statutory maximum attaches if the offense

involving identification means or documents is committed to facilitate an act of international

terrorism.

Although the legislative history of the Act manifests a congressional intent to prevent the

federalization of “innumerable state and local offenses, such as the status offense[s] of underage

teenagers using fake ID cards to gain entrance to bars or to buy cigarettes,”14 in fact the statute as

written covers an extremely broad range of conduct. By virtue of its definition of “identification

means,” the new law captures offense conduct that is already criminalized by a multitude of other

statutes. For example, the unauthorized use of credit cards (access devices) is already prosecuted

under 18 U.S.C. § 1029, but now also falls within the ambit of the newly-enacted 18 U.S.C.

§ 1028(a)(7). Other similar examples include: providing a false social security number and other

identification information in order to obtain a tax refund (traditional tax fraud offense), and

presenting false passports or immigration documents by using the names and addresses and photos

of lawful residents or citizens to enter the United States (traditional immigration fraud offense

conduct). The offense conduct of some 180 federal criminal statutes can potentially involve the

misuse of identification means, many of them as an element of the offense.

Another important change occasioned by the Act is to expand the range of identifiable

victims to the individual whose identification means are fraudulently used. Previously, under most

offenses that implicate the misuse of identification means, such as immigration fraud or credit card

fraud, the “victim” was generally considered to be either the government or the financial institution

that, under principles of commercial law, sustains the economic loss of a credit card theft or check

forgery. For sentencing purposes, the individual was not generally taken into consideration as a

victim of the offense conduct, nor were the harms suffered by the individual considered, as direct

financial loss.15

The legislative history of the Act and the language of the statute make clear that the

protections and punishment provided by the new law are intended to reach those instances where

identification means are misused to such an extent as to cause significant harm to an individual,

and these harms are not limited to readily quantifiable monetary losses.16 In specifying that the
to have a driver’s license and credit cards issued in [the victim’s] name. With these credit cards, the criminal made

purchases under [the victim’s name] that exceeded $100,000. While trashing [the victim’s] credit, and carrying a

license as the [victim] in his wallet, the identity thief was busy committing serious crimes.” 143 CONG. REC.

S.2742 (daily ed. Mar. 21, 1997) (statement of Sen. Kyle).

17 Pub. L. 105-318(b)(1), § 4(b).

18 Id.

19 See Washington Post, August 18, 1999, at B2. See also “Identity Theft: When Bad Things Happen to

Your Good Name,” Federal Trade Commission, November, 1999 at 10.

20 The Department of Justice has directed that instances of identity theft that do not meet the threshold

amount of $1,000 within one year should be referred to state and local law enforcement authorities, “unless there

is evidence of a pattern of individual occurrences that suggests the presence of a larger scheme or organized

conspiracy if there is sufficient evidence that supports prosecution for other federal criminal violations.”

Department of Justice, “Law Enforcement Agency Guidance Memorandum,” July, 1999.

21 Only one defendant is known to have been convicted under the new law. At sentencing, §2F1.1 was

applied. The defendant falsely represented his name and social security number to obtain his job and to claim

social security disability benefits. The defendant used his cousin’s name to apply for a social security number, a

state identification card, credit, and checking and savings accounts. There is no discussion in the Pre-Sentence

Report of whether there was either monetary or non-monetary harm caused to the individual whose ID means were

4

victims of identity theft offenses are to be recognized for sentencing purposes,17 the new law 

adopts the definition of “victim” at 18 U.S.C. § 3663A(a)(2):

. . . [T]he term ‘victim’ means a person directly

and proximately harmed as a result of the commission

of an offense.

The Act then delineates two types of such direct and proximate harm of identity theft—harm to

reputation and inconvenience—but also extends considerations of harm to “other difficulties

resulting from the offense.”18 A typical example of these difficulties is an undeserved poor credit

rating that impedes job opportunities or the ability to obtain financing. A more rare but no less

egregious example of harm flowing from identity theft is an unmerited arrest record or detention by

law enforcement personnel.19

In light of the breadth of the new statute, a number of questions arise that do not lend

themselves to one definitive answer, including: precisely how the new law will be used by federal

prosecutors, whether it will be charged alone or in combination with other actionable offenses

such as 18 U.S.C. § 1029 (credit card/access device fraud), 18 U.S.C. § 922 (unlawful acquisition

of a firearm), or 18 U.S.C. §1341 (mail fraud), and whether and how the statute will be applied to

offense conduct that does not have an identifiable loss amount.20 The Commission is faced with

the challenge, particularly in the absence of specific prosecutorial guidance and judicial

experience on the new law’s application, of delineating the range of offense conduct and

associated aggravating characteristics in setting penalties for violations of the new law consistent

with the structure of the existing sentencing guidelines.21
misused. These factors were used to support the two-level enhancement for more than minimal planning under

§2F1.1(b)(2)(A). Losses totaling $72,000 resulted in a six-level enhancement under §2F1.1(b)(1)(G). The total

adjusted offense level of 14 with a Criminal History Category IV resulted in a 21-month sentence of incarceration.

22 §2F1.1(b)(2) provides for a two level increase if the “offense involved (A) more than minimal planning,

or (B) a scheme to defraud more than one victim.”

23 United States. v. Melvin, 187 F. 3d 1316, 1321 (11th Cir. 1999). 

5

B. Relevant Guidelines

The new law penalizing the unauthorized use of identification means was added to section

1028 of Title 18 of the United States Code. Prior to the Act, the first six subsections of section

1028 were collectively designated as “Fraud and related activity in connection with identification

documents” (emphasis added). The statutory index in Appendix A lists three guideline sections as

applicable to violations of section 1028. These are §2F1.1, the fraud guideline, and §§2L2.1 and

2L2.2, which govern the misuse of immigration and naturalization documents. Application note 11

of the commentary to §2F1.1 refers the sentencing court to §2L2.1 or §2L2.2 when the fraud was

committed for the primary purpose of violating or assisting others to violate the immigration or

naturalization laws. As a preliminary matter, the Commission needs to determine whether these

guideline references are sufficient for section 1028(a)(7) in light of the breadth and the new law

and the congressional directives. 

1. Fraud-Based Guideline Application

A number of the factors contained in the congressional directive are already considered to

some extent in the applicable guidelines. For example, §2F1.1 already takes into account (at least

in part) the first factor—the number of victims involved in the offense—with the enhancement for a

scheme to defraud more than one victim. 22 In this context, however, application note 4 limits the

definition of “victim” to the “person or entity from which the funds are to come directly.” As the

Eleventh Circuit noted in a recent case of identity theft, application note 4 makes it clear that the

“multiple victim adjustment of §2F1.1(b)(2)(B) account[s] solely for the two financial institutions

and the telephone provider that [the defendant] defrauded . . . [It does] not consider the indirect

victims . . . who suffered because of [the] scheme.”23

Similarly, the language in Chapter Three on multiple counts (grouping) may discourage

consideration of individual victims of identity theft. Application note 2 to §3D1.2 states that the

term “victim” is not intended to include indirect or secondary victims. Without clearer guidance

here and in other contexts in the guidelines, sentencing courts may not consider the individual

whose identifications means are fraudulently used as “victims” for sentencing purposes. 

Generally, such consequential damages mentioned in the congressional directives, such as 

“harm to reputation, inconvenience and other difficulties from the offense,” are not accounted for

in the guidelines. To a limited extent, there is some provision in this regard in the fraud guideline
24 See Case No. 358708 in the Commission’s data sample. 

25 The Eleventh Circuit, for example, upheld the district court’s total 15-level upward departure for an

employee at a children’s hospital who obtained personal information of 135 patients and procured 36 unauthorized

credit cards. The court gave a two-level enhancement under §3A1.1 because of the vulnerable nature of the victims

and based the remainder of the upward departure generally on notes 11 and 12 of the commentary to the §2F1.1

fraud guideline. United States v. Melvin, 187 F.3d at 1322-23.

26 See §3D1.2 Application Note 2.

27 Section 2L2.1 is entitled “Trafficking in a Document Relating to Naturalization, Citizenship, or Legal

Resident Status, or a United States Passport; False Statement in Respect to the Citizenship or Immigration Status

of Another; Fraudulent Marriage to Assist Alien to Evade Immigration Law.”

6

at §2F1.1, at application notes 11 and 12. When “loss does not fully capture the harmfulness and

seriousness of the conduct,” an upward departure may be warranted under either note 11(a) when

“a primary objective of the fraud was non-monetary or the fraud caused or risked reasonably

foreseeable substantial non-monetary harm,” or under note 11(c) when “the offense caused

reasonably foreseeable, physical or psychological harm or severe emotional trauma.” 

Nonetheless, these standards for an upward departure may fail to capture the harm caused to the

individual victims of identity theft. At least one sentencing court has found that the emotional

distress caused by a victim’s inability to obtain financing because of a damaged credit rating does

not fulfill the criteria for an upward departure.24

Application note 12, on the other hand, specifically addresses the possibility of upward

departures for offenses involving fraudulent identification and access devices (violations of

18 U.S.C. §§ 1028 and 1029) where the actual loss does not adequately reflect the seriousness of

the conduct. While this standard is certainly applicable to the harm caused to individual victims in

many instances of identity theft,25 actual upward departures on this basis may be infrequent in the

absence of specific directives in the guidelines. 

2. Immigration-Based Guideline Application

The majority of offenses sentenced under section 1028(1)-(6) are immigration offenses.

The focus of these guidelines at Part L of Chapter Two is on the harm to the societal interest in

protecting the integrity of nation’s borders, and society-at-large is considered the direct victim. 26

The immigration guidelines do not take into account the number of victims or any financial loss

caused by the fraudulent use of immigration documents or passports. Similarly, there is no

provision for incorporating the corollary harm to the individual victims whose identification

information or documents have been misused.

The number of identification means involved in the offense conduct—one of the specific

congressional factors to be considered—does affect the penalty levels under one of the

immigration guidelines, however. Under §2L2.1,27 increases of three, six, and nine levels are

possible if the offense involved 6-24, 25-99, or more than 100 documents, respectively. In
28 Section 2L2.2 is entitled “Fraudulently Acquiring Documents Relating to Naturalization, Citizenship or

Legal Resident Status for Own Use; False Personation or Fraudulent Marriage by Alien to Evade Immigration Law;

Fraudulently Acquiring or Improperly Using a United States Passport.”

29 The Secret Service drafted and promoted the legislation that was ultimately enacted into law as

18 U.S.C. § 1028(a)(7).

30 The Postal Service also drafted legislation in 1998 which defined identity theft and proposed

sentencing enhancements based on the volume of theft of mail and credit line of access devices. 

31 The Secret Service, state law enforcement agencies, the Federal Bureau of Investigation, and the

Immigration and Naturalization Service were the most frequently involved agencies in the cases examined by the

Team. In 41 percent of the cases, two or more law enforcement agencies worked together. See Appendix G,

Table 1.

7

contrast, under §2L2.228 there is no consideration of the number of documents involved in the

offense conduct. The distinction involving the number of documents used is based on the fact that

§2L2.2 is applicable when only the defendant tried to illegally enter the United States, in contrast

to §2L2.1, which applies when a defendant smuggles other individuals, often for profit. As a

practical matter, an individual attempting to cross the border with a handful of false identification

documents does not currently receive an enhancement under the guidelines for multiple documents,

whereas the number of documents used by a professional smuggler is considered an indicia of the

more serious nature of offense conduct. 

The three guidelines addressed above are the ones that are currently referenced to section

1028 in the Statutory Index of Appendix A. As the discussion in Parts IV and V will illustrate, the

range of offense conduct covered by the new identity theft potentially implicates a number of

additional guidelines, depending upon how the Commission applies the statutory directives in the

context of the guideline structure.

III. External Sources of Information

The prevention, detection, and prosecution of identity theft involves the resources of

numerous law enforcement agencies and jurisdictions. During the course of its work, the Team

consulted with the Criminal Division of the Department of Justice; the U.S. Secret Service (which

has jurisdiction over credit card and other access device fraud, fraudulent identification, and

financial fraud involving computer access),29 the U.S. Postal Service (which focuses on account

takeover fraud perpetrated through the diversion of the U.S. mails),30 the U.S. Marshals Service

(which tracks fugitives), the Inspector General of the Social Security Administration (which

focuses on the use of social security numbers to commit all types of fraud), and, the Immigration

and Naturalization Service (which focuses on counterfeit documents and the fraudulent use of

legitimate documents for entry into the United States).31

To more fully explore the implications of this new law, the Attorney General’s Council on

White Collar Crime designated a Subcommittee on Identity Theft within the Law Enforcement

Initiatives Committee to examine identity theft trends and enforcement strategies. Representatives
32 While a number of states have begun to enact laws directed at “identity crimes,” most of these laws are

directed at the unlawful access of financial records or the unlawful procurement of goods and services. The few

state laws that are broader in scope (Arizona and California, for example) are of such recent vintage as to provide

little practical guidance at this time with respect to offense characteristics and sentencing factors.

33 “Identity Theft: When Bad Things Happen to Your Good Name,” Federal Trade Commission, 

November, 1999. 

8

from over a dozen executive agencies, as well as the National Association of Attorneys General,

the National District Attorneys Association, and the International Association of Chiefs of Police32

attend these monthly meetings to exchange information and identify areas for improved

coordination. The Commission staff have participated in the Subcommittee’s monthly meetings

and have made two briefings on the Team’s research and preliminary analysis of data. The

Department of Justice will coordinate the concerns of the federal law enforcement agencies to

present a proposal for sentencing enhancements under the Act to the Commission. 

The Federal Trade Commission, which was charged under the new law with establishing a

clearinghouse for consumer reporting of identity theft incidences, is developing a reporting and

tracking methodology of identity theft-related consumer complaints for use by law enforcement

agencies. The Federal Trade Commission has also prepared a reference book for consumers about

the prevention and detection of identity theft, and lists federal, state, and non-governmental sources

of assistance.33

 At the direction of the President, on March 15 and 16, 2000, the Treasury Department will

convene a National Summit on Identity Theft to announce a framework for development of a

public-private partnership on identity theft. Commission staff has been invited to deliver a

presentation on the Commission’s research, analysis, and current sentencing developments.
34 While anecdotal information from law enforcement sources is abundant, there is a corresponding

dearth of quantifiable information on the incidence and scope of the offense conduct that comprises “identity

theft” as defined by the new law. The General Accounting Office recognized the lack of consistent statistical data

on identity theft as a separate offense category among law enforcement agencies. See, generally, GAO/GGD-98-

100BR, “Identity Fraud: Information on Prevalence, Cost, and Internet Impact is Limited” (May, 1998).

35 Id. at 25-37.

36 See Appendix C for a complete list of these statutes.

9

IV. Analysis of Data

A. Overview

The data collection phase of this project was guided by two major purposes: 

• address the issues raised by the new law and the factors set forth by Congress in its

directives to the Commission, and

• systematically collect and analyze the range of offense conduct covered by the new

identity theft law.34 

In the absence of comprehensive and consistent quantifiable data from law enforcement

agencies about the full range of offense conduct associated with identity theft,35 the staff also

developed a systematic and manageable method of analyzing existing Commission data to assist

the Commission with its policy considerations. 

B. Methodology

The initial data collection effort focused on the guidelines used in association with

convictions under 18 U.S.C. § 1028 before subsection (a)(7) was added to cover identity theft.

However, a focus on section 1028 cases alone would have been of little practical value in

identifying the full range of offense conduct covered by the new law. Therefore, the full range of

federal statutes that proscribe the same offense conduct—the unauthorized use of identification

means—that can now also be prosecuted under the new identity theft law at section 1028(a)(7)

was identified. This structured search resulted in a list of 180 separate federal statutes, comprised

of 216 subsections.36 These include, by way of illustration, credit card fraud (18 U.S.C. § 1029);

tax fraud (26 U.S.C. § 7206); a plethora of false statement (18 U.S.C. §§ 1001,1030,1015,1035)

and immigration/nationality (8 U.S.C. §§ 1160, 1325; 18 U.S.C. §§ 911, 1542, 1546) statutes; drug,

alcohol, and gun control statutes (21 U.S.C. § 843; 26 U.S.C. § 5603; 18 U.S.C. §922(a)(6)); and

statutes governing the use and control of social security data (42 U.S.C. § 408).

A search of the Commission’s FY 1998 datafiles indicated a total of 6,214 cases and at

least one conviction with respect to 94 of the 180 statutes. From these 6,214 cases, a stratified
37 See Appendix D for a complete explanation of the nature and relevance of a stratified sample.

38 Because the resulting sample is not representative of the entire FY98 datafile, results from the analysis

cannot be used to make inferences about all cases. Nonetheless, the cases in the sample are useful tools to portray

accurately the range of ID means-related conduct for cases convicted of the statutes from which they were

selected.

10

sample was generated,37 a detailed coding instrument calibrated to the legislative directives was

developed, and 305 cases were analyzed. Of these 305 cases, 146 involved one or more

“identification means” (“ID means”) as defined by the new law, and were coded by the Team. 

Broadly speaking, the data and findings below convey the breadth of conduct now

subsumed under the broad statutory companion definitions of “identity means” and “identity

theft.”38 The analysis attempted to identify the salient characteristics of the offense conduct that

can be prosecuted as identity theft, as well as aggravating and mitigating factors that may inform

policy decisions. The following overview of the data specifically addresses the relevant

legislative directives.

C. Characteristics of the Unauthorized ID Means

1. General Observations

In light of the congressional directive to consider the number of ID means when assessing

the appropriateness of enhanced penalties, the staff collected extensive information regarding the 

nature of ID means involved in the offense conduct sampled. Credit cards, driver’s licenses,

social security numbers, and birth certificates were the most common ID means in the cases in the

sample. Most offenders in the sample used ten or fewer ID means, and the majority of ID means in

the sample (60%) were genuine physical objects such as driver’s licenses and credit cards, as

opposed to lists of information. When lists of information comprised the ID means in the offense

conduct, they consisted primarily of lists of names and/or credit card numbers, and social security

numbers.

A significant aspect of ID means-related offense conduct is the use of “breeder” ID means

or documents. This term refers to the unauthorized use of ID means to generate and acquire

additional fraudulent ID means. Driver’s licenses, social security numbers, and birth certificates

were most frequently used to generate or “breed” other fraudulent ID means. In contrast, the

sample reflected that immigration documents are rarely used to “breed” other fraudulent ID means. 

Nonetheless, any document or ID means can be used to “breed” others.
12 The possession of multiple credit cards and/or credit account numbers by offenders may reflect the

nature of the credit industry, in that obtaining credit from a subsequent lender becomes more routine once an

initial account has been established. In addition, “dumpster diving,” or unauthorized computer access at locations

like car rental companies, often yields mass quantities of credit-related information and permits perpetrators to

obtain numerous credit cards. The most extreme instance in the sample involved a defendant in possession of

5,191 credit card account numbers, although the actual offense conduct for which he was prosecuted involved a

million dollar loss to the brokerage accounts of twenty-seven individuals. See Summary of Case No. 396241 at

Appendix F.

11

2. Number and Types

The most frequently misused ID means in the sample were credit cards, driver’s licenses,

social security numbers, birth certificates, checks, and alien registration cards. Military

identifications, physicians’ DEA numbers and prescription pads, passports, Medicaid cards, and

ATM cards also appeared in the sample. The majority of the cases involved a single ID means,

regardless of type, except for credit cards, and 64 percent of the cases involved ten or fewer ID

means.12 In six cases, however, the owner of the fraudulent used ID means consented to or was

otherwise aware of its misuse. The data results in this regard suggest that reliance solely on the

number of ID means involved in the offense may fail to take into account such situations where the

individual “victim” is clearly not the one that Congress intended in enacting this legislation.

3. Breeder Documents

A significant aspect of identity theft involves the use of “breeder” documents or “breeder”

ID means. “Breeder” ID means can be of any type; their significance is in their use to obtain

additional, separate false or fraudulent ID means which then pass into the exclusive control of the

perpetrator without the victim’s knowledge, or ability to know. The importance of breeder ID

means in the context of identity theft is the sophistication of the scheme and the ability to delay

detection, thus causing potentially greater loss and harm to the victims.
12

Approximately one third of the cases in the sample involved the use of breeder documents. 

Given that the offenders in these cases acquired additional ID means, the overall number of ID

means involved tends to be greater than for cases without breeder documents. As illustrated in

Figure 1, more than 50 percent of non-breeder document cases involved a single ID means, while

the same proportion of breeder document cases involved between two and 50 identification means. 

 Cases involving more than 50 identification means are relatively uncommon for both categories.

Some ID means are much more commonly used as ‘breeders” than others. As illustrated in

Table 1, driver’s licenses, social security numbers, and birth certificates were the most frequently

occurring breeder ID means (83%, 82%, and 55% of cases, respectively). Breeder ID means

occur most often in the course of committing credit card fraud (for the purpose of establishing the

“authenticity” required to obtain a new account), although their incidence is fairly frequent in

conjunction with check fraud, document fraud/counterfeiting, signature forgery, and bank/loan

fraud as well. In contrast, immigration fraud and government benefits fraud generally involve

misstatements on application forms or the outright purchase of fraudulent documents, so that there

is less necessity for “breeder” documents in committing this offense conduct.
13 The categories in Table 1 are defined by the following ranges of offense conduct: credit card fraud

(using a credit card to obtain a cash advance, make purchases on an existing account, apply for a new account);

check fraud (obtaining and cashing checks for an existing account, creating and using counterfeit checks);

immigration document fraud (misuse of a passport, illegal entry, and obtaining employment without proper

authorization); bank/loan fraud (making applications for car loans, mortgages, or other loans, creating new

accounts, making withdrawals from existing accounts); signature forgery (on prescriptions, loan applications,

savings bonds).

13

Table 113

Relationship of Breeder Documents to ID Means Offense Conduct

ID Means Offense Conduct

Total Number of Cases

Involving This Conduct

Number of Cases Involving

Breeder Documents

Credit Card Fraud 44 27

Check Fraud 36 13

Document/ID Means

Counterfeiting 30 12

Immigration Document Fraud 29 4

Signature Forgery 25 12

Bank/Loan Fraud 22 11

Fraudulently Obtained Driver’s

License 13 12

Government Benefits 9 4

Trafficking in Fraudulent

Documents 7 2

Tax Fraud 4 2

Firearms 3 2

Drugs 2 1
14 Whether all the provisions of the statute apply in instances where the individual victim is a fictitious

entity may be open to challenge as cases are brought under the new law. According to a co-sponsor of the new law,

its purpose was to recognize and assist the victim of the crime, a purpose that arguably would be inconsistent with

the use of ID means for a fictitious individual. (See 143 CONG. REC. S2741-2 (daily ed. Mar. 21, 1997)

(statement of Sen. Kyle). Similarly, the section 1028(d)(3) definition of “means of identification” as “any name

or number . . . to identify a specific individual” (emphasis added) suggests a unique and actual individual, as

opposed to a fictitious one.

Significant for sentencing purposes, however, is the fact that many of the factors enumerated in the

legislative directives, e.g., harm to a victim’s reputation and inconvenience to the victim, will be inapplicable when

the misused ID means is not that of an actual individual.

14

D. Nature of the Offense Conduct

1. General Observations

Consistent with the congressional directive, the analysis also focused on the extent of

victimization and the amount of loss. Most of the cases in the sample involved the ID means of

known actual, as opposed to fictitious, individuals, and the majority of these victimized single

rather than multiple individuals.

Nearly half of the cases in the sample were sentenced under the fraud (§2F1.1) guideline

with losses generally falling between $5,000 and $40,000. While the majority of cases involving

both breeder and non-breeder ID means were sentenced under the fraud guideline, the non-breeder

cases were sentenced under a much wider spectrum of guidelines than the breeder cases. 

2. Victims

a. Extent of Victimization

Nearly 60 percent of the cases in the sample involved the ID means of known actual, as

opposed to fictitious, individuals.14 However, individuals have not historically been considered

the victims of ID means-related offenses. Consistent with this omission, the PSRs in only 11 of the

85 cases involving ID means of actual individuals mention any losses or damages. Monetary

losses were reported for five of the 11 individual victims, while harm to credit, denial of loans,

and or emotional stress was reported for victims in the remaining six cases.

Significantly, the number of victims does not vary according to the use of breeder

documents as part of the offense conduct. Nearly 60 percent of cases both with and without

breeder documents involve single individual victims. Similarly, both categories of cases have a

very low proportion of cases involving more than 50 victims. 

Almost 90 percent of the cases received the two-level enhancement at §2F1.1(b)(2) for

“more than minimal planning/more than one victim.” Of the 10 percent of cases in the sample

(n=9) that did not receive the enhancement, only two cases would qualify for the §2F1.1(b)(2)

enhancement if the individual victim of ID means-related offense conduct were included in the
15 See §2F1.1, comment. (n.4) and §3D1.2, comment. (n. 2).

16 This enhancement applied to cases sentenced before the §2F1.1(b)(5) enhancement was broadened in

May, 1998 to cover “sophisticated concealment” and then, in September, 1998, to cover “sophisticated means.”

17 One instance involved a hospital employee’s theft of the mail of Veterans Administration patients and

access to patient records to obtain additional personal information. The offender then completed credit

applications and obtained new cards in the patients’ names. Because many of the patients were already suffering

from stress and paranoia, they were determined to be “vulnerable” for purposes of the guideline adjustment. The

defendant in this case was found to have caused a $25,905 loss, and was sentenced to 11 months alternative

confinement.

The second case involved several types of offense conduct, but the ID means-related conduct (using a

DEA number to forge a doctor’s signature to obtain drugs for her own use) was not directly related to the

defendant’s additional conduct of tampering with patient-controlled analgesic devices by replacing morphine with

saline solution. This defendant, who was convicted of both tampering with consumer products and the

unauthorized dispensing of drugs, was sentenced to 70 months’ imprisonment.

18 See Appendix E, Table 4.

19 The Act establishes a 15-year maximum penalty for the unauthorized transfer or use of one or more ID

means if more than $1,000 aggregate value is obtained during a one-year period. See 18 U.S.C. 1028(b)(1)(D), as

added by Section 3(b)(1) of the Identity Theft and Assumption Deterrence Act of 1998.

15

guidelines’ definition of “victim.”15 Only one case sampled merited the enhancement of

§2F1.1(b)(5) for use of the foreign bank accounts.16 Finally, only two defendants in the entire

146-case sample received the guideline adjustment at §3A1.1(b) for “vulnerable victim.”17

b. Victim/Offender Relationship

As part of the examination of the relationship of the defendant to the individual victim(s) of

the identity theft it was necessary to determine how many of the ID means corresponded to actual

as opposed to fictitious (or unknown) individuals. The most frequently-used ID means

corresponding to fictitious individuals were alien registration cards, driver’s licenses, and birth

certificates.18 Where it was possible to determine that at least one of the unauthorized ID means

used by the perpetrator/defendant corresponded to an actual individual victim, the

perpetrator/defendant was related to, or acquainted with, the victim in 70 percent of such cases.

3. Loss Amounts

Almost half of the cases in the sample involved fraud-related offense conduct sentenced

under §2F1.1. Eighteen percent of these cases had a loss amount under $2,000, so there was no

enhancement under §2F1.1(b)(1). None of these cases met the $1,000 threshold of the new identity

theft law.19
20 See Appendix E, Table 6. Four cases in the sample were sentenced under the theft guidelines and met

the $1,000 threshold of the loss table at §2B1.1(b).

21 See Appendix E, Table 5.

22 See Appendix E, Table 8.

16

 Of the overwhelming majority (82 %) of cases where the defendant received the

§2F1.1(b)(1) enhancement, the majority corresponded to loss amounts between $5,000 and

$40,000. Only 16 percent received enhancements for loss amounts greater than $200,000.20

The majority of cases involving both breeder and non-breeder ID means are sentenced

under the fraud guideline. However, a much greater proportion of cases involving breeder ID

means are sentenced under the fraud guideline, compared to cases involving non-breeder ID means

(74 % versus 53%). In other words, there is a much broader spectrum of offense conduct and

corresponding guidelines for cases without breeder documents. When breeder documents occur,

the nature of the offense conduct is much more likely to fall under the fraud guidelines.

Although more cases involving the use of breeder documents are sentenced under the fraud

guidelines, there is no differentiation between these two categories based on their corresponding

loss amounts. The majority of cases in both categories have loss amounts below $40,000. And,

despite some variation across loss amount categories, there is no clear pattern of loss amounts that

distinguishes the cases involving breeder ID means from those cases without breeders. 

E. Sentencing Outcomes

1. General Observations

Because the offense conduct involving the misuse of ID means can theoretically implicate

over 180 statutes, a correspondingly large number of sentencing guidelines are likely to be

implicated. Despite the fact that the sample was selected from 94 statutes of conviction, however,

the vast majority of the cases in the sample (79%) were sentenced under two primary guideline

categories: fraud/theft and immigration. The primary sentencing guidelines for the remaining 21

percent of the cases, however, vary dramatically (e.g., money laundering, tax, controlled

substances, firearms, administration of justice, civil rights, assault),21 again reflecting the breadth

of offense conduct that may potentially involve the misuse of ID means and the sampling method

used to select these cases. 

Three-quarters of the defendants sentenced under the fraud guidelines received sentences of

confinement which averaged 16 months. Similarly 83 percent of the defendants with immigrationrelated offense conduct involving the misuse of ID means were incarcerated, but the average

sentence of confinement was 10 months.22

2. Sentencing Outcomes Under Section 1028
23 These cases had a single count of conviction under 18 U.S.C. § 1028 and no other convictions. All

non-immigration cases were sentenced under the fraud guidelines.

24 These cases had at least one count of conviction under 18 U.S.C. § 1028 and at least one other

conviction, which may or may not have been under the same statute.

25 An insignificant number are associated with offense conduct sentenced under other types of guidelines:

extortion/bribery (1 case); drugs (5 cases); administration of justice (2 cases); firearms (8 cases); and money

laundering (1 case).

17

The new identity theft law has been incorporated within 18 U.S.C. § 1028, which has

historically proscribed fraud in connection with identification documents. While a review of cases

sentenced under this law proved to be unworkable for the purpose of identifying the full range of

offense conduct covered by the new law, the data from these cases is useful for assessing the need

for enhanced penalties under the new provisions at section 1028(a)(7).

Table 2

18 § 1028 Convictions: FY96 to FY98

Cases with a Single §1028

Conviction Only23

Cases with at Least One

§1028 Conviction24

All Cases

Immigration

Excluded All Cases

Immigration

Excluded

Total 1,491 60 651 116

Percent Imprisoned 31.8 48.4 80.7 69.9

Average Prison Length

(months) 5 10 9 26

The overwhelming majority—82 percent—of section 1028 cases sentenced in the past three

years, before either the enactment of 18 U.S.C. § 1028(a)(7) or the prosecution of any cases under

this newly enacted subsection, were immigration-related offenses. Only 16 percent involved fraud,

theft, and counterfeiting.25 Half of the non-immigration defendants with a single section 1028

conviction were sentenced to prison, and the average prison sentence was ten months. As illustrated

in Table 2, when section 1028 convictions occurred in conjunction with one or more other statutes,

the imprisonment rate rises to 70 percent, and the average prison sentence increased to 26 months.

3. Conduct Relevant to the 15-Year Statutory Maximum

The Act establishes a 15-year maximum penalty for the unauthorized transfer or use of one or

more ID means if more than $1,000 aggregate value is obtained during a one-year period. Forty-
26 The five firearms cases in the sample involved the use of unauthorized ID means to purchase firearms. 

None of these cases on their facts appear to meet the criteria of “crimes of violence” as defined in 18 U.S.C.

§§ 1028 (b)(2)(B) and 924(c)(3).

27 In the first case a pharmacist used the prescription pads of physicians and forged the prescribed

amounts to obtain extra pills to sell on the black market (9-year prison term under the money laundering guideline,

§2S1.1). The second case involved the use of false names, addresses, and phone numbers by a defendant who was

laundering the proceeds from his marijuana growing business (7-year prison term under §2S1.1). The third case

involved a defendant who, having failed to surrender for his sentencing for a 1979 drug trafficking conviction,

allegedly continued narcotics trafficking (and other offenses) through the use of numerous false identification

documents over the course of 18 years (6-year prison term under §2F1.1, no loss amount involved). See Summary

of Case No. 359894 at Appendix F.

28 Twenty-four of these prior offenses were local or state offenses, four were federal, and one defendant

had both state and federal prior convictions.

18

five of the cases in the sample met each of these criteria, and the median sentence for these offenders

was 13 months.

4. Conduct Relevant to the 20-Year Statutory Maximum

The new law provides for a 20-year maximum penalty if the identity crime facilitates certain

types of drug crimes and crimes of violence, or for a second conviction under the new law. Five

cases in the sample of 146 potentially met the first criterion.26 One case involved assault (shooting

of a business partner), but the ID means-related offense conduct of using a false passport to attempt

to flee the country arguably did not facilitate the assault. 

The four remaining cases involved drug trafficking. In three of these cases the ID meansrelated conduct facilitated the drug trafficking, making the defendants eligible for the 20-year

statutory maximum.27

Because the law has been in effect for only one year, staff is not yet able to identify cases

which implicate the second criterion for the 20-year statutory maximum. Nonetheless, the

information on criminal history for the offenders sampled may be useful in this regard. Of the 83

defendants in the sample with prior convictions, 35 percent included offense conduct that involved

the unauthorized use of some type of ID means.28 All but one of these (an immigration case)

involved theft, fraud, or forgery-related offense conduct. Eligibility for the enhanced 20-year

statutory maximum will depend, of course, on prosecutorial charging decisions at both the state and

federal levels, decisions which could be affected by the predictability of incarceration as a

sentencing outcome.

5. Terrorism Conduct Relevant to the 25-Year Statutory Maximum

The new law also provides for a 25-year maximum penalty if the identity crime facilitates an

act of international terrorism. None of the cases reviewed contained such conduct. Because of the

importance of this provision to the new statute, the entire Commission datafile for the past three
29 Although the sentencing guidelines were amended in 1996 to include an enhancement for acts of

terrorism at §3A1.4, this guideline has not been applied to any cases sentenced through FY 1998. The cases which

were reviewed for this study were selected based on a conviction under 18 U.S.C. § 2332b (“Acts of terrorism in

transcending national boundaries”).

30 The offenses of conviction included: 18 U.S.C.§ 844(d)(f) & (i); 18 U.S.C. §§ 33 & 34;

18 U.S.C. § 924(C); 18 U.S.C.§ 1952; 18 U.S.C. § 111.

31 The guideline enhancement at §3A1.4 provides for a minimum base offense level of 32 and an

automatic Criminal History of Category VI, with a corresponding incarceration range between 210 and 262

months.

19

years was reviewed to locate cases that involved an act of international terrorism. 29 Only two such

cases were located—one involving a World Trade Center bombing defendant, and the other

involving violence against commercial U.S. aircraft in East Asia.

 The World Trade Center defendant used, and was in possession of, numerous false

identification documents such as photographs, bank documents, medical histories, education

records, and photographs from which numerous false identities could have been created. The

defendant, who was found guilty of a number of offenses that caused injury or death, was sentenced

to life plus 240 years of imprisonment.30 The defendant in the second case, who was found guilty of

using explosives against U.S. commercial aircraft serving East Asia, also used false identification

and travel documents, and was sentenced to life plus 60 years of imprisonment. Despite the

unavailability of more examples, the penalty structure of most of the statutes under which similar

acts of international terrorism are likely to be charged, in combination with the structure of

sentencing guideline §3A1.4,31 suggest that sentences will most likely be at, or exceed, the 25-year

statutory maximum of the new law.

V. Policy Considerations

In addressing the issues raised by the Identity Theft and Assumption Deterrence Act, the

Commission has a range of options that can be used alone or in combination with one another. The

selection of any or some of these options will be based on the Commission’s determination about

the scope of the offense conduct that merits increased punishment. As a threshold matter, the

Commission will need to determine whether additional punishment should attach to any offense in

which the misuse of ID means is part of the offense (e.g., false statements on tax returns about the

claimant’s identity, purchase of a weapon by a convicted felon under a false name, escape from

custody by using false identification, crossing the border with false identification documents) or

only to certain aggravated forms of conduct (e.g., affirmative identity theft). 

The breadth of the statute suggests that Congress intended for potential additional

punishment to apply to every type of offense involving the misuse of an ID means. Nonetheless,

the legislative history clearly indicates that Congress was focused on the misuse of ID means in the

context of financial and credit account take-overs. 
32 The legislative history, information from law enforcement sources, and the Commission’s data analysis

indicate that such affirmative identity theft occurs most often in the context of committing financial fraud. 

20

Quite apart from the statute and the apparent legislative intent, it appears in fact that

identity theft encompasses a continuum of offense conduct. The most basic type of identity theft

occurs when a thief snatches a wallet and uses the stolen credit card to make a purchase. An

illegal alien who uses a stolen passport solely for the purpose of gaining entry at the border also

commits the most basic type of identity theft. In the former example, which is essentially

traditional credit card fraud, the individual knows that he or she is a victim and has an immediate

opportunity to report the stolen card and cancel unauthorized charges. Similarly, the victim whose

passport is stolen is aware of the offense and can report it to the State Department so that its

unlawful use can be curtailed.

Although a literal reading of the statute appears to cover even the most basic type of

identity theft on the continuum, Congress’s main focus in enacting this legislation was on a more

sophisticated form of offense conduct that involves additional affirmative steps to misuse and

control an individual’s ID means. Irrespective of how the perpetrator comes into possession of the

various identification means, the perpetrator fraudulently uses one or more ID means to “breed”

additional identification means. These fraudulent ID means then pass into the perpetrator’s

exclusive control without the individual victim’s knowledge or ability to know. 

The perpetrator may subsequently use these “new” fraudulent ID means to facilitate the

commission of additional offenses.32 The individual victims of such offenses are unlikely, in the

normal course of events, to discover that their identity has been stolen and misused. Discovery of

the crime may not occur until they have problems obtaining credit or are contacted by

collection agencies. In some extreme circumstances, individual victims may be arrested by law

enforcement authorities or subjected to bankruptcy proceedings as a result of the perpetrator

having generated additional fraudulent documents in the individual’s identity.

 This type of offense conduct—affirmative identity theft—is considerably more

sophisticated than basic identity theft because of the additional steps the perpetrator takes to

“breed” additional documents to continue fraudulent conduct. Such conduct makes detection by

both individual and institutional victims much more difficult. It has the potential to increase harm,

both monetary and non-monetary, to the individual victims about whom Congress was particularly

concerned in enacting this legislation, and can also result in substantial disruption of

recordkeeping by governmental and quasi-governmental agencies.

 Finally, at the extreme end of the continuum of offense conduct is the instance when a

perpetrator obtains, misuses, and generates ID means to the extent of becoming “immersed” in the

victim’s identity. While these “take-over” occurrences or “assumptions” are extremely rare (there

were none in the Commission’s study, consistent with observations from law enforcement

agencies), this pernicious manifestation of identity theft was profiled at the legislative hearings and

may need to be addressed within the guideline structure as well. Because the primary issue here is

the scope of the conduct that merits increased punishment, the options below present different
33 The Commission, of course, has the option of establishing numerical ranges for proportionate

increases, based on the number of identification means, similar to the table in §2L2.1(b)(2), which provides 3, 6,

and 9 level increases when 6-24, 25-99, and more than 100 documents or passports, respectively, are used in

immigration and naturalization offenses.

21

approaches that range from covering a broad scope of conduct (i.e., misuse of ID means that

occurs in the context of any offense) to covering identity theft conduct that occurs only in the

context of economic crimes to identity theft conduct that occurs only in the context of fraud and

theft offenses.

Accordingly, Option One presents the broad approach fashioned upon an adjustment in

Chapter Three. Option Two limits sentencing enhancements and/or departures to the context of

economic crimes, and Option Three is the most narrowly targeted to limiting sentencing

enhancements and/or departures to the context of the fraud and theft guidelines. For ease and

clarity of presentation, Option Three sets out the details of possible specific offense

characteristics and departure provisions to take into account several aggravating factors prevalent

in identity theft cases. Although presented in the context of the theft and fraud guidelines, any of

those provisions can be modified and tailored to fit within either Option One or Two. Finally, 

Option Four is presented which creates a general upward departure in Chapter Five if the offense

involving the fraudulent use of ID means causes harm not adequately taken into account in the

guidelines.

Option One: Create an adjustment in Chapter Three whenever any identifications means is

used with the intent to commit, or to aid or abet, any unlawful activity that constitutes a

violation of federal law or that constitutes a felony under any applicable State or local law.

Option One is the broadest approach presented for implementing the directive. By

providing a Chapter Three adjustment, the use of one or more ID means to facilitate another

offense would merit a sentencing adjustment for any offense in which that conduct occurs.33

Although this approach may be the most direct method of implementing the directive, the

problematic impact of adopting this broad approach is twofold: First, this approach might run the

risk of treating all manifestations of offense conduct along the identity theft continuum the same,

from the most basic form of identity theft such as credit card theft to the most egregious forms

involving identity assumption. This approach would have the effect of raising penalty levels for

virtually every offense in which the misuse of an identification means is part of the offense

conduct, whether or not that misuse is egregious or is a significant part of the offense conduct.

Second, this approach would implicate various non-monetary based guidelines (e.g.,

immigration, firearms, drugs, and the administration of justice), as well as various economic crime

guidelines (e.g., theft, fraud, counterfeiting, tax, and money laundering). The arguable

disadvantage to this approach is that certain guideline sections already take the offense

characteristic of false identification documents or means into consideration when setting the base

offense level. In addition, there is the possibility of a double counting problem regarding one of

the immigration guidelines because §2L2.1 already provides a sentencing increase by means of a
22

specific offense characteristic for the number of false documents involved in the offense. To

ameliorate this problem, the Chapter Three adjustment could limit its application to circumstances

in which the conduct is not already accounted for by the particular Chapter Two guideline, or the

particular Chapter Two guideline itself could prohibit application of the Chapter Three adjustment

in such circumstances.

Option Two: Provide enhancements and/or departures in the economic crime guidelines

(theft, fraud, counterfeiting, tax, money laundering) for the fraudulent use of any

identification means in the course of the offense conduct.

Option Two limits sentencing enhancements and/or departure provisions to the context of

economic crimes, an approach that is considerably less broad than Option One and somewhat

more consistent with the primary focus of the legislative history on the financial ramifications of

identity theft crimes. Nonetheless, currently the victim under most economic crime guidelines

(excluding fraud and theft) like tax fraud, counterfeiting, and money laundering, is generally

considered to be the government or “society at large.” In contrast, as amply manifested in the

legislative history, Congress was focused on preventing and punishing conduct that has the primary

effect of harming individual victims, particularly in terms of disrupted credit standings and

financial reputation. Accordingly, although this approach limits some of the problems associated

with the breadth of Option One, the Commission may determine that this approach still does not

most accurately target the range of offense conduct about which Congress was most concerned

unless, of course, those guidelines were modified to account for the harm to these individual

victims.

Thus, there are two potential disadvantages of Option Two. First, it may cover conduct

such as money laundering, counterfeiting, and tax fraud with respect to which the fraudulent use of

ID means was not a compelling congressional concern. Second, and perhaps more important,

incorporating an enhancement or departure provision into each economic crime guideline would

require an intricate tailoring of the enhancement or departure provision for each such guideline

because the fraudulent use of ID means would arise under each of these guidelines by different

means and to different degrees.

Option Three: Provide enhancements and/or departures in the fraud and theft guidelines for

the fraudulent use of any identifications means in the course of the offense conduct.

Option Three would limit sentencing increases for the misuse of ID means to offense

conduct covered by the fraud and theft guidelines at §§2F1.1 and 2B1.1. As demonstrated by the

Commission’s data, most offenses involving the misuse of ID means are sentenced under the fraud

and theft guidelines. Limiting sentencing enhancements to the fraud and theft guidelines is also

consistent with the existing guideline structure in that offenses involving false documentation and

fraudulent misrepresentations are already sentenced under the fraud guideline. Furthermore, the

offense conduct covered by the fraud and theft guidelines seems closest to the congressional focus

and intent in recognizing the impact upon, and harm to, individual victims. In fashioning

appropriate increased punishment for the fraudulent use of ID means, the following aggravating

factors could be taken into account.
34 This is an issue that the Economic Crimes Policy Team has explored generally in the context of

possible revision to the definition of “loss.”

35 As defined in 18 U.S.C. § 1029(e)(1), “access device” includes “card, plate, code, account number,

electronic serial number, mobile identification number, personal identification number, or other

telecommunications service equipment, or instrument identifier, or other mens of account access . . . to obtain

money, goods, services or any other thing of value, or that can be used to initiate a transfer of funds.”

36 This is an issue that the Economic Crimes Policy Team has reviewed, particularly in the context of

wireless telephone fraud. The prior Commission also considered the issue as it relates to intended loss. The

Treasury Department has supported such an amendment to the guidelines, proposing to expand the rule to all

access devices and increase the minimum loss amount per device to $1,000.

37 For example, identity theft victim, attorney Maria Frank, said that her identity theft “nightmare” lasted

almost a year, and took 500 hours of her time. She wrote 90 letters (return receipt requested) to various agencies

and incurred out-of-pocket costs of approximately $10,000. This included postage, long distance calls, travel

expenses, additional security systems to her home (she was also being stalked by the identity perpetrator), and

many other incidentals. See http://www.identitytheft.org.

23

1. Harm-Based Considerations

a. Indirect Monetary Harms

The first issue the Commission would have to consider should it wish to explore the

approach contained in Option Three is whether or not the current “loss” calculation in the fraud

and theft guidelines adequately accounts for the pecuniary harm caused by the fraudulent use of ID

means. Arguably the current definition does not provide adequate punishment because it does not

provide for consideration of indirect monetary harms to the individual victims, such as the costs

incurred in attempting to repair damaged credit ratings. One method for accommodating this

situation is to provide a special rule in the commentary to §2F1.1 that, for purposes of identity

theft, “loss” includes indirect monetary harms.34 The fraud guideline already makes similar

provisions for damages other than direct damages in procurement fraud and product substitution

cases.

A variation on this method, to the extent that the ID means which is misused in the offense

conduct is an“ access device,”35 is to amend the special rule in the theft guideline for minimum

loss in credit card fraud cases to include all access devices (e.g., ATM cards, telephone serial

numbers).36

Even if the “loss” definition is modified in one of the ways suggested above to include the

indirect monetary harms of identity theft, the loss calculation may still not entirely capture the

seriousness of the offense.37 The Commission’s data together with experiential data suggest that

the amount of indirect monetary costs incurred by individual victims in many such circumstances

may be inadequate to substantially increase penalties under the existing fraud loss table. 
38 The congressional directive included the number of victims for Commission consideration. An

enhancement based on this factor is described at section 2.c. below.

39 An analogous departure is found in application note 15 to §2B1.1, which recognizes that the theft of

medical records or a diary may involve a substantial invasion of privacy that is not addressed by the monetary loss

24

Nonetheless, the seriousness of such offense conduct can be addressed through enhancements and

departures within the fraud and theft guidelines. 

Two application notes to the fraud guideline may already invite upward departures in

instances when identity theft occurs. Application note 11 provides for an upward departure “when

loss . . . does not fully capture the harmfulness and seriousness of the conduct.” Application note

12 specifically addresses the possibility of upward departures for offenses involving fraudulent

identification documents and access devices (violations of 18 U.S.C. §§ 1028 and 1029) when the

“actual loss does not adequately reflect the seriousness of the conduct.” While these two

application notes arguably include much of the indirect monetary harm caused to individual

victims of identity theft, the Commission may wish to consider adding language to one of these

application notes or creating a separate provision that specifically invites upward departures in

such instances. Another possibility for capturing the indirect monetary harm that results from

identity theft is to provide an enhancement through a specific offense characteristic to the fraud

guideline, possibly related to the number of individual victims of the offense.38

b. Non-Monetary Harms

Nonetheless, “loss,” even if modified as discussed above, may still not adequately capture

all the harms that result from identity theft and assumption cases. In particular, the “loss”

definition will not capture the non-monetary harms about which Congress was concerned in

enacting the new law because the “loss” calculation generally is limited to the calculation of

pecuniary harm. Non-monetary harms typically will include harm to an individual’s financial

reputation, as well as the ensuing inconvenience which, in some cases, may rise to true emotional

distress. Generally, quantifying such non-monetary harms is impracticable within the sentencing

process, and therefore the only ways to adequately account for such harm are through a bright-line

rule that provides an enhancement to account for that harm or through a departure.

 Application note 11(a) to §2F1.1 already invites an upward departure when “a primary

objective of the fraud was non-monetary or the fraud caused or risked reasonably foreseeable

substantial non-monetary harm.” Similarly, application note 11(c) to §2F1.1 does already invite

an upward departure when “the offense caused reasonably foreseeable . . . psychological harm or

severe emotional trauma.” Should the Commission determine that the non-monetary harms

associated with identity theft are more severe than for other types of fraud victims, then it may

consider that an enhancement or more specific invited departure is warranted. This could be

accomplished by adding a specific offense characteristic or language to application note 11(a) or

elsewhere in the commentary to §2F1.1 that invites an upward departure and provides an example

of the types of harm that would trigger such a departure.39
provisions of the guideline.

40 In a sense, providing a floor offense level provides an alternative minimum measure of loss. Examples

of floor offense levels include: §2B1.1(b)(5) (floor of offense level 14 for “chop shops”); and §2F1.1(b)(5) (floor

of offense level 15 for “sophisticated concealment”).

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2. Offense Conduct Considerations

After having assessed the preceding options, the Commission may still determine that

additional considerations are required in providing sentencing enhancements. Accordingly, the

Commission may wish to consider providing specific offense characteristics based on any or all of

the following aggravating factors, which are listed in or derived from the congressional directive. 

In conjunction with any of these offense characteristics, the Commission may wish to consider

providing “floor” offense levels to any enhancement it wishes to develop. The Commission has

typically used a “floor” approach when the extent of the offense conduct, or the loss generated by

the offense conduct, is difficult to capture adequately or even to ensure a particular offense level,

such as a level that would guarantee a term of imprisonment.40

a. Number of ID Means

One of the factors in the directive instructed the Commission to consider the number of ID

means involved in an identity theft offense. The Commission could choose to structure a specific

offense characteristic based on the involvement of a specified number of ID means in the offense

conduct. This approach has already been implemented in the context of false documents used for

immigration smuggling offenses at §2L2.1. 

As demonstrated by the Commission’s data, the number of ID means can be expected to be

associated more frequently with affirmative identity theft than with the more basic manifestations

of such offense conduct. Therefore, if the Commission determines that affirmative identity theft is

a more aggravated type of conduct about which Congress was particularly concerned, then the

number of means could be considered to be a fair proxy for culpability. A disadvantage to

adopting the number of ID means as the sole basis for an enhancement, however, is that it may

result in overpunishing individuals who commit basic identity theft, such as a thief who steals a

wallet containing ten ID means in the same individual’s name but uses a single credit card to make

an unauthorized purchase.

b. Method of Using ID Means

The Commission could also choose to structure a specific offense characteristic based on

how the ID means are used in the offense conduct. One variation of this approach is to provide an

enhancement based on the fact that the offense conduct involved the use of one or more (or some

higher “threshold” number of) ID means to create, or “breed,” additional unauthorized ID means. 

Another variation is to provide an enhancement based on the fact that the offense conduct involved

the use of one or more of the unauthorized ID means that were created or “bred.” The Commission
41 One important point to note about this type of enhancement, however, is that it is presented as an

alternative to more than minimal planning. As a practical matter, the fact that the current definition is limited to

the direct victim (i.e., financial institution) will not likely prevent the court from applying this two-level

enhancement because more than minimal planning will likely be a component of many, if not most, identity theft

26

may ultimately determine that both of these aspects of offense conduct are equally culpable and

provide the same, rather than a graduated, enhancement for both.

The advantage of structuring an enhancement around the use of “breeder” ID means is that

it addresses the more aggravated type of identity theft conduct about which Congress was most

concerned. When new and fraudulent ID means are generated without the individual victim’s

knowledge, harms to the individual, as well as to the institutional, victims are likely to be greater

because detection of the offense will take much longer. Such an approach also provides a

systematic method for sentencing enhancements based on distinguishing basic from affirmative

identity theft along the continuum of offense conduct.

c. Number of Victims

Yet, another factor identified in the congressional directive for Commission consideration

is the number of victims of the offense. Reliance on this factor alone, however, can result in either

overstating or understating the harm. In instances of basic identity theft, for example, the number of

victims may overstate the harm. In instances of true identity assumption, it may significantly

understate the harm because there will likely be a single, or extremely small, number of victims

whose identity the perpetrator is using. Furthermore, the Commission’s data does not reflect an

appreciable difference in the number of victims between cases involving breeder documents and

those cases in which the identity theft did not rise to this affirmative level. 

Nonetheless, when breeder means or documents are involved and the individual is

unaware that his or her identity is being used to obtain credit and conduct other financial

transactions, total harm to the individual victim (indirect monetary and non-monetary harms) is

likely to be substantially greater than when breeder documents are not involved. In addition, the

longer that an offense goes undetected, the greater the likelihood of increased financial loss to the

financial institutions that must absorb the monetary loss under principles of commercial law. 

Therefore, should the Commission decide to base an enhancement on the number of victims, it

might also wish to account for this factor in combination with taking into account the use that the

perpetrator makes of the ID means.

Furthermore, consideration of a sentencing enhancement based on the number of victims

will necessarily require the threshold determination of whether institutional, as well as individual,

victims are to be included in the calculation. Related to this consideration is the definition of

“victim” at application note 4 to §2F1.1, which currently defines “victim” for purposes of

§2F1.1(b)(2)(B) (scheme to defraud more than one victim) as the “person or entity from which the

funds are to come directly (emphasis added).” Whether or not the Commission decides that the

number of victims is to be considered in providing an enhancement,41 it may wish to consider
cases. The definition will only become problematic if the Commission, should it consider the broader Economic

Crime Package, votes to incorporate more than minimal planning into the loss table.

42 If this approach is adopted, it may be necessary to ensure that the misused ID means correspond to

actual, as opposed to fictitious, individuals. On the other hand, if this requirement would unduly burden the

sentencing hearing, the Commission may determine that all the names on misused ID means would be attributed to

individual victims.

43 See §§2L2.1(b)(4) and 2L2.2(b)(2), which provide for two and four level increases if “the defendant

committed any part of the instant offense after sustaining one or more convictions for felony immigration and

naturalization offenses.” See also §2K2.1(a) and §2A6.2(b)(1)(D) and app.n.1.

27

adjusting the current definition of “victim” to include, for purposes of identity theft, the individual

whose ID means are misused.42

3. Prior Similar Criminal Conduct

Another factor for the Commission to consider in establishing penalties for identity theft is

the fact that a high portion of such offenders have previously been convicted of similar offense

conduct at either the state or federal levels. Accordingly, the Commission may wish to consider an

enhancement for prior convictions of offense conduct involving ID means. This approach is not

often used because sentencing increases for prior offense conduct are generally addressed by

Chapter Four of the guidelines (“Criminal History and Criminal Livelihood”). Nonetheless,

certain guideline enhancements have taken into account prior similar conduct through specific

offense characteristics.43

Option Four: Provide a general upward departure in Chapter Five whenever an offense

involving the fraudulent use of identification means causes harm not adequately taken into

account in the guidelines.

Finally, the Commission could consider providing a general upward departure in Chapter

Five whenever an offense involving the fraudulent use of ID means causes harm not adequately

taken into account in the guidelines. This option could most appropriately be used in conjunction

with any of the Options described above or standing alone.