Mandatory Minimum Penalties for

Identity Theft Offenses

in the

Federal Criminal

Justice System

United States Sentencing Commission

September 2018

Mandatory Minimum Penalties for Identity Theft Offenses

in the Federal Criminal Justice System

William H. Pryor Jr. 

Acting Chair 

Rachel E. Barkow

Commissioner

Charles R. Breyer

Commissioner

Danny C. Reeves

Commissioner

Patricia K. Cushwa

Ex Officio 

David Rybicki

Ex Officio 

Kenneth P. Cohen

Staff Director

September 2018

Table of Contents

1 Section One: Introduction

3 Section Two: Key Findings

7 Section Three: Identity Theft Mandatory Minimums in the Federal System

8	 Statutory Mandatory Minimum Provisions Applicable to Federal Identity Theft Offenders

8 18 U.S.C. § 1028A

9 Other Identity Theft Statutes

9 Guideline Provisions

10 Statutory and Guideline Relief Provisions

11 Section Four: Data Analysis

12 The Commission’s Updated Study of Identity Theft Mandatory Minimum Penalties

13 Recent Trends in Mandatory Minimum Penalties

14	 Overall Prevalence of Identity Theft Offenses and Section 1028AAggravated Identity Theft

14 How Often Are Offenders Convicted Under 18 U.S.C. § 1028A?

16 How Often Are Offenders Convicted of Multiple Counts of 18 U.S.C. § 1028A?

17	 Where Were Offenders Convicted of Offenses Under Section 1028A?

18 Other Counts of Conviction

19 	 Sentencing Multiple Counts of Conviction

20	 Offender Demographics

20 Race, Gender, and Citizenship

23 Age

24 Criminal History

24	 Offense Characteristics

26 Plea and Trial Rates

26 Relief from Mandatory Minimum Penalties

28 Demographics

29	 Sentencing of Identity Theft Offenders

29 Average Sentence Length

32 Demographics

33	 Identity Theft Offenders in the Federal Prison Population

 

35 Section Five: Conclusion

37 Endnotes

45 Appendix
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

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1Introduction
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 2

Introduction

This publication is the fifth in the 

Commission’s series on mandatory minimum 

penalties. In 2017, the Commission published 

its Overview of Mandatory Minimum Penalties 

in the Federal Criminal Justice System (2017 

Overview Publication)1 and subsequently 

issued three publications providing detailed 

analyses of the application of mandatory 

minimum penalties to specific offense types—

drugs in October 2017; firearms in March 2018; 

and the use of recidivist enhancements for drug 

traffickers under 21 U.S.C. § 851 in July 2018.2

These publications build on the Commission’s 

2011 Report to the Congress: Mandatory 

Minimum Penalties in the Federal Criminal 

Justice System (2011 Mandatory Minimum 

Report),3 which provided detailed historical 

analyses of the evolution of federal mandatory 

minimum penalties, scientific literature 

on the topic, and extensive analysis of the 

Commission’s own data, public comment, and 

expert testimony. These publications highlight 

recent trends in the charging of offenses 

carrying mandatory minimum penalties and 

provide updated sentencing data demonstrating 

the impact of those penalties.

This publication focuses on the application 

of mandatory minimum penalties specific 

to identity theft offenses. As used in this 

publication, the term “identity theft offenses” 

refers to the offenses established at 18 U.S.C. 

§ 1028 (general identity theft) and 18 U.S.C. 

§ 1028A (aggravated identity theft), as well as 

any other offense sentenced under the fraud 

guideline, §2B1.1, that received the 2-level 

enhancement for identity theft conduct.4

Only the aggravated identity theft statute, 18 

U.S.C. § 1028A, carries a mandatory minimum 

penalty. Other identity theft offenses do not 

carry a mandatory minimum penalty. 

Identity theft offenses represent a small 

portion of the federal caseload, and section 

1028A cases represent a small portion of all 

cases involving a mandatory minimum penalty. 

However, section 1028A convictions have 

increased both as a number and as a percentage 

of cases involving a mandatory minimum 

penalty since the Commission began collecting 

data on these offenses. 

Using fiscal year 2016 data, this publication 

includes analyses of 18 U.S.C. § 1028A, which 

provides for a two-year mandatory minimum 

penalty, as compared to identity theft offenses 

that do not carry mandatory minimum penalties, 

as well as the impact of these offenses on the 

Federal Bureau of Prisons (BOP) population. 

Where appropriate, the publication highlights 

changes and trends since the Commission’s 

2011 Mandatory Minimum Report.
2 Key 

Findings
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

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Key Findings 

Building directly on its previous reports 

and the analyses set forth in the 2017 Overview 

Publication, this publication examines the use 

and impact of mandatory minimum penalties 

for identity theft offenses. 

As part of this analysis, the Commission 

makes the following key findings:

Key Findings

1. Mandatory minimum penalties for identity theft offenses are applied less often in the 

federal system compared to other mandatory minimum penalties. 

• Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders 

sentenced in fiscal year 2016.

• Section 1028A offenses accounted for 7.2 percent of offenses carrying a mandatory minimum 

penalty in fiscal year 2016. 

2. However, the use of section 1028A mandatory minimum penalties against identity 

theft offenders has become more prevalent. 

• Of the cases involving identity theft offenses, slightly more than half (53.4%) were convicted under 

section 1028A, while 46.6 percent were convicted of an identity theft offense that did not carry a 

mandatory minimum penalty. 

• The percentage of identity theft offenders convicted under section 1028A has steadily increased, 

more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. 

This percentage is more than ten percentage points higher than reported in the Commissions 2011 

Mandatory Minimum Report, when it was 42.6 percent. 

• Section 1028A aggravated identity theft offenses also increased as a portion of all offenses carrying 

a mandatory minimum penalty, from 4.0 percent in fiscal year 2010 to 7.2 percent in fiscal year 

2016. 
 5

Section Two:

Summary of Key Findings

Key Findings

3. Sentences imposed pursuant to section 1028A are longer than sentences imposed for 

identity theft offenses not carrying a mandatory minimum penalty. 

• In fiscal year 2016, the average sentence length for offenders convicted of at least one count under 

section 1028A was more than double the average sentence length for offenders convicted of an 

identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 

months). 

• Identity theft offenders convicted of at least one count under section 1028A had a longer average 

sentence than offenders convicted of an identity theft offense not carrying a mandatory minimum 

penalty even if they received relief from the mandatory minimum penalty length (32 months 

compared to 22 months). 

4. In addition, other charging and plea decisions also play a role in the application and 

impact of identity theft mandatory minimum penalties. 

• The majority of section 1028A offenders (88.7%) were also convicted of at least one other felony 

offense, which is consistent with the statutory requirement that an offender must have “knowingly 

transferred, possessed, or used a means of identification of another person during and in relation to 

any enumerated felony violation.”

• Conversely, 11.3 percent were convicted of an offense under section 1028A alone, although those 

cases necessarily involved another federal offense for which they were not charged and convicted. 

• The average sentence for offenders who were convicted under section 1028A and another statute 

was more than double the average sentence for offenders convicted only under section 1028A (54 

months compared to 22 months). 
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

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Key Findings

5. A small percentage of section 1028A offenders are convicted of multiple counts 

under the statute. When they are, courts frequently exercise their discretion to impose 

concurrent sentences, in whole or in part, for additional counts under the statute. 

• In fiscal year 2016, 89.2 percent (n=872) of offenders convicted under section 1028A were convicted 

of a single count, and 10.8 percent (n=106) were convicted of multiple counts under the statute. 

• For those offenders convicted of multiple counts under section 1028A, the court exercised its 

discretion to impose sentences for additional 1028A counts concurrently in the overwhelming 

majority of cases (89.6%). 

• Even though courts limit the impact of convictions for multiple counts under section 1028A by 

imposing concurrent sentences, offenders convicted of multiple counts under section 1028A still 

had a longer average sentence than offenders convicted of a single count under the statute (74 

months compared to 48 months). The longer sentence length was due to the fact that such offenders 

were also more likely to have been convicted of another offense (for which section 1028A requires 

a consecutively-imposed sentence) than offenders convicted of a single 1028A count.

6. The section 1028A mandatory minimum penalty impacts Black offenders more than 

any other racial group. 

• Black offenders were convicted under section 1028A at a higher rate than any other racial group. 

In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet 

accounted for 58.7 percent of offenders convicted under section 1028A.

• Black offenders’ proportion of those convicted under section 1028A in fiscal year 2016 (58.7%) 

represented a substantial increase from fiscal year 2010, when they represented 40.2 percent of such 

offenders. Conversely, White offenders became a smaller proportion of identity theft offenders 

convicted under section 1028A, having fallen by nearly half (from 32.8% in fiscal year 2010 to 

18.7% in fiscal year 2016).

• Black offenders were also convicted under section 1028A at the highest rate when considering 

identity theft offenders within each racial group. In fiscal year 2016, a majority (63.1%) of Black 

identity theft offenders were convicted under section 1028A, which was higher than the rate for 

White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%). 

• Black offenders were also most likely to be convicted of multiple counts under section 1028A, 

comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic 

offenders (13.2%), and Other Race offenders (2.8%). 
Identity Theft 

Mandatory 3 Minimums 
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

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Statutory Mandatory Minimum Provisions 

Applicable to Federal Identity Theft 

Offenders

Federal identity theft offenders are 

primarily convicted of offenses under 18 

U.S.C. §§ 1028A (aggravated identity theft) 

and 1028 (general identity theft). Only section 

1028A carries a mandatory minimum penalty. 

This section provides a brief overview of these 

two provisions. 

18 U.S.C. § 1028A

Section 1028A of title 18, United States 

Code, provides enhanced punishment for 

aggravated identity theft, including a two-year 

mandatory minimum penalty.5 This provision, 

which was enacted in the Identity Theft 

Penalty Enhancement Act of 2004,6 prohibits 

knowingly transferring, possessing, or using, 

a “means of identification” of another person 

during and in relation to any enumerated 

felony violation.7 A “means of identification” 

means “any name or number that may be 

used, alone or in conjunction with any other 

information, to identify a specific individual.”8

The enumerated felony offenses include theft 

offenses,9 offenses involving false statements 

and fraud,10 offenses related to nationality and 

citizenship,11 offenses related to passports and 

visas,12 and immigration offenses.13 

Section 1028A requires that the mandatory 

minimum two-year term of imprisonment be 

imposed consecutively to “any other term of 

imprisonment imposed on the person under 

any other provision of law, including any 

term of imprisonment imposed for the felony 

during which the means of identification was 

transferred, possessed, or used.”14 The statute 

directs the court not to reduce any sentence for 

the underlying felony, assuming the defendant 

is convicted separately of the underlying felony, 

to “compensate for, or otherwise take into 

account, any separate term of imprisonment” to 

be imposed for a violation of section 1028A.15

The statute allows the court discretion to 

sentence a defendant convicted of multiple 

counts under section 1028A to terms that run 

consecutively or concurrently. As described 

above, the sentencing court must impose the 

two-year mandatory minimum penalty for 

the first section 1028A count consecutively 

to any sentence imposed for the underlying 

felony offense.16 However, the court may, in its 

discretion, run the sentence for any additional 

section 1028A counts “concurrently, in whole 

or in part, [] with another term of imprisonment 

that is imposed by the court at the same time . . . 

for an additional violation of [section 1028A].17

Thus, section 1028A allows but does not require 

that multiple counts of conviction be served 

consecutively, or “stacked” with one another. 

This structure differs from 18 U.S.C. § 924(c) 

(relating to using or possessing firearms in 

furtherance of drug trafficking or crimes of 

violence), which requires a sentencing court 

to impose consecutive sentences for both the 

underlying offense and any additional counts 

under section 924(c).18
 9

Section Three:

Identity Theft Mandatory Minimums

Other Identity Theft Statutes

Other statutes penalize conduct that is similar 

to aggravated identity theft, but these statutes 

do not carry mandatory minimum penalties. 

The general identity theft statute, 18 U.S.C. 

§ 1028, proscribes a broader range of identity 

theft activities than section 1028A.19 Thus, all 

conduct that violates section 1028A also violates 

section 1028,20 but some conduct that violates 

section 1028 does not violate section 1028A.21

Additionally, in some circumstances, conduct 

covered by the aggravated identity theft statute 

may be punishable under various fraud offense 

statutes that do not carry mandatory minimum 

penalties.22 

The exercise of prosecutorial discretion in 

charging identity theft offenses is limited to 

some degree by the differing proof requirements 

of the aggravated identity theft offense, 

compared to other identity theft offenses. In 

Flores-Figueroa v. United States,

23 the Supreme 

Court held that to establish the element in 

section 1028A that the defendant “knowingly” 

transferred, possessed, or used a means of 

identity of another person, the government 

must prove that the defendant both knew that 

he or she was transferring, possessing, or 

using a means of identification and knew that 

the means of identification in fact belonged 

to another person.24 Although a similar proof 

requirement exists under the general identity 

theft statute insofar as the government alleges 

the defendant violated section 1028(a)(7) 

(“knowingly transfers, possesses or uses, 

without lawful authority, a means of identity of 

another person”), other sections of the general 

identity theft offense, other fraud statutes, and 

the guidelines’ identity-theft enhancement 

impose less stringent proof requirements than 

section 1028A.25

Guideline Provisions

The guideline provision applicable to 

convictions of an offense under section 1028A, 

§2B1.6, reflects the statute’s mandatory penalty, 

providing that “the guideline sentence is the 

term of imprisonment required by statute.”26

The guideline also provides a non-exhaustive 

list of factors for the court to consider in 

exercising its discretion when sentencing on 

multiple counts under section 1028A. The 

factors are: (1) the nature and seriousness 

of the underlying offenses (e.g., whether the 

underlying offenses are crimes of violence; 

(2) whether the underlying offenses are able 

to be grouped for guidelines purposes; and (3) 

whether the purposes of sentencing as specified 

at 18 U.S.C. § 3553(a)(2) “are better achieved 

by imposing a concurrent or consecutive 

sentence.”27

USSG §2B1.1 applies to identity theft 

offenders generally, including non-aggravated 

identity theft, fraud, and other offenses. It 

establishes a 2-level enhancement if the 

offense involved “the unauthorized transfer or 

use of any means of identification unlawfully 

to produce or obtain any other means of 

identification” or “the possession of 5 or 

more means of identification that unlawfully 

were produced from, or obtained by the 

use of, another means of identification.”28

Conduct that would trigger the guideline 

enhancement is also generally punishable 

under section 1028A.29 The guideline also 
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 10

provides incremental enhancements based on 

the amount of loss incurred in the offense,30 an 

enhancement of two, four, or six levels based 

on the number of victims involved and amount 

of financial hardship caused,31 and an increase 

for sophisticated means.32

Statutory and Guideline Relief Provisions

Offenders may receive relief from the 

aggravated identity theft mandatory minimum 

penalty if the prosecution files a motion based 

on the defendant’s “substantial assistance” 

pursuant to 18 U.S.C. § 3553(e).33 When such 

motion is filed, section 3553(e) authorizes the 

court to impose a sentence below the mandatory 

minimum penalty. 

As directed by Congress, the Commission 

incorporated this statutory mechanism for 

relief from mandatory minimum penalties 

into the guidelines. USSG §5K1.1 authorizes 

a departure from the guideline range if the 

offender provided substantial assistance to law 

enforcement and the government files a motion 

to that effect.34 Even where §5K1.1 applies, 

however, the court can only sentence below 

the mandatory minimum penalty when the 

government also files a motion pursuant to 18 

U.S.C. § 3553(e).35
4 Data 

Analysis
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

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The Commission’s Updated Study of 

Identity Theft Mandatory Minimum 

Penalties

In its 2011 Mandatory Minimum Report, the 

Commission made several recommendations to 

Congress regarding the use of, and improvement 

to, mandatory minimum penalties generally 

and with respect to the four major offense 

types. However, the Commission noted that 

it was “difficult to issue specific findings and 

recommendations regarding the operation 

of section 1028A” because the offense of 

aggravated identity theft was relatively 

new, having been established in 2004.36 The 

Commission did note, however, that “some 

of the problems associated with mandatory 

minimum penalties for other offenses are 

not observed, or are not as pronounced, in 

identity theft offenses” because, relative to 

other mandatory minimum penalties, section 

1028A provides for a two-year penalty and 

allows for concurrent sentences of multiple 

counts.37 As a result, unlike other mandatory 

minimum penalties, sentences imposed under 

section 1028A were comparable to sentences 

imposed for similar offenses that do not carry a 

mandatory minimum penalty. Additionally, in 

contrast to other offenses carrying mandatory 

minimum penalties, demographic differences 

in the application of section 1028A were not 

observed at that time. While the Commission 

noted that there appeared to be some 

inconsistencies in the application of section 

1028A across judicial districts, these appeared 

attributable to the new nature of the statute. 

The Commission thus determined that specific 

conclusions or recommendations were difficult 

to make with respect to identity theft mandatory 

minimum penalties at that time.38

All Other Federal 

Offenders

97.1%

(N=60,420)

Identity Theft Offenders

2.9%

(N=1,831)

[N=62,251]

Not Convicted 

Under 

18 U.S.C. § 1028A

46.6%

(N=853)

Convicted Under 

18 U.S.C. § 1028A

53.4%

(N=978)

SOURCE: U.S. Sentencing Commission 2016 Datafile, USSCFY2016.

Figure 1. Identity Theft Offenders Convicted Under 18 U.S.C. § 1028A 

Fiscal Year 2016
 13

Section Four:

Data Analysis

Since the 2011 Mandatory Minimum Report, 

the Commission has continued its study of the 

scope, use, and impact of mandatory minimum 

penalties in the federal system, providing 

regular updates through the issuance of Quick 

Facts publications, as well as in testimony 

before Congress. The Commission provides 

this publication to update the information 

and analyses in its 2011 Mandatory Minimum 

Report and to further inform discussion of the 

Commission’s recommendations regarding 

the use of mandatory minimum penalties for 

identity theft offenses.

Focusing on offenses carrying an identity 

theft mandatory minimum penalty, this 

publication analyzes 62,251 cases from the 

Commission’s fiscal year 2016 datafile,39

identifying relevant offender and offense 

characteristics, including demographic data 

and basic criminal history information. This 

publication provides comparisons between all 

identity theft offenders, offenders convicted of 

at least one count of aggravated identity theft 

under section 1028A, offenders convicted of 

multiple counts under section 1028A, and 

offenders who remained subject to section 

1028A’s mandatory minimum penalty at 

sentencing. The Commission also provides 

data about sentencing outcomes involving 

application of the section 1028A mandatory 

minimum penalty. Where appropriate, this 

publication highlights key changes between 

the data set forth in the Commission’s 2011 

Mandatory Minimum Report and the fiscal year 

2016 sentencing data.

The Commission intends that the data in 

this publication will further inform the ongoing 

discussion regarding mandatory minimum 

penalties among Congress, the Department of 

Justice, and others.

Recent Trends in Mandatory Minimum 

Penalties

As discussed in the 2017 Overview 

Publication, the prevalence of convictions for 

an offense carrying any mandatory minimum 

penalty among all federal offenders decreased 

in fiscal year 2016. From fiscal years 1991 

to 2013, the percentage of federal offenders 

convicted of an offense carrying a mandatory 

minimum penalty fluctuated between 26.0 

percent and 31.9 percent. Over the past three 

years, however, the percentage has decreased, 

to 21.9 percent in fiscal year 2016.

While the percentage of offenders convicted 

of an offense carrying a mandatory minimum 

penalty steadily decreased, the percentage of 

offenders subject to a mandatory minimum at 

sentencing remained relatively stable during 

the same time period, falling only slightly from 

14.5 percent in fiscal year 2010 to 13.4 percent 

in fiscal year 2016. This is because offenders in 

recent years have been increasingly less likely 

to receive relief from a mandatory minimum 

penalty through a substantial assistance motion 

or application of the statutory safety valve. 

In fiscal year 2016, 38.7 percent offenders 

convicted of an offense carrying a mandatory 

minimum penalty received relief, down from 

46.7 percent in 2010.40
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 14

Overall Prevalence of Identity Theft 

Offenses and Section 1028A Aggravated 

Identity Theft

How Often Are Offenders Convicted Under 18 

U.S.C. § 1028A?

Identity theft offenses continued to 

constitute a small percentage of federal 

criminal cases overall. In fiscal year 2016, of 

the 62,251 offenders sentenced and included 

in this analysis, 2.9 percent (n=1,831) were 

identity theft offenders. Of the 1,831 cases 

involving identity theft offenses, slightly more 

than half (53.4%, n=978) were convicted under 

section 1028A, while 46.6 percent (n=853) 

were convicted of an identity theft offense that 

did not carry a mandatory minimum penalty. 

The 978 offenders convicted under section 

1028A thus represent only 1.6 percent of 

federal offenders sentenced in 2016.

As reflected in Figure 2, the number 

of section 1028A offenders generally and 

their portion of the federal caseload overall 

has remained relatively stable since the 

Commission’s 2011 Mandatory Minimum 

Report. After a rapid increase between fiscal 

years 2006 (n=286) and 2009 (n=896), the 

number of offenders more gradually increased 

to a high of 1,047 offenders in fiscal year 2014 

(the only year with more than 1,000 offenders 

convicted), before decreasing to 978 offenders 

in fiscal year 2016. 

The changes in the number of offenders 

convicted under the statute correlates with 

increased use of the section 1028A mandatory 

minimum penalties as a prosecutorial tool 

against identity theft offenders. As shown 

in Figure 3, the percentage of identity theft 

offenders convicted under section 1028A has 

steadily increased since shortly after the statute 

was enacted, more than doubling from 21.9 

percent in fiscal year 2006 to 53.4 percent in 

fiscal year 2016. The percentage of identity 

SOURCE: U.S. Sentencing Commission 2006 through 2016 Datafiles, USSCFY2006-USSCFY2016.

0

250

500

750

1,000

1,250

1,500

18 U.S.C. § 1028A

Figure 2. Number of Offenders Convicted Under 18 U.S.C. § 1028A

Fiscal Years 2006 - 2016

number
 15

Section Four:

Data Analysis

theft offenders convicted under section 1028A 

has also increased since the Commission’s last 

report on mandatory minimum penalties. In 

fiscal year 2010, fewer than half of identity 

theft offenders (42.6%, n=797) were convicted 

under section 1028A. In fiscal year 2016, 

that percentage has risen to more than half, 

with 53.4 percent of identity theft offenders 

convicted under section 1028A. 

Section 1028A aggravated identity theft 

offenses also increased as a portion of all 

offenses carrying mandatory minimum 

penalties. Section 1028A offenses accounted 

for 7.2 percent of offenses carrying a mandatory 

minimum penalty in fiscal year 2016, increasing 

from 4.0 percent in 2010. 

Figure 3. Identity Theft Offenders Convicted of an Offense Carrying a Mandatory Minimum Penalty 

Fiscal Years 2006 - 2016

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Identity Theft

SOURCE: U.S. Sentencing Commission, 2006 through 2016 Datafiles, USSCFY06 – USSCFY16.

All Other Offenders Convicted of a 

Mandatory Minimum

92.8%

(N=12,626)

Offenders Convicted Under 

18 U.S.C. § 1028A

7.2%

(N=978)

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 4. Offenders Convicted of an Identity Theft Offense Carrying a Mandatory Minimum Penalty

Fiscal Year 2016

[N=13,604]
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 16

How Often Are Offenders Convicted of 

Multiple Counts Under 18 U.S.C. § 1028A?

Of the 978 offenders convicted of aggravated 

identity theft, 872 (89.2%) were convicted of a 

single count, and 106 (10.8%) were convicted 

of multiple counts under the statute. Of the 106 

offenders convicted of multiple counts under 

section 1028A, nearly half were convicted of 

two such counts (45.3%; n=48), while 26 were 

convicted of three such counts, seven were 

convicted of four such counts, and 25 were 

convicted of five or more (with a high of 16 

counts for a single offender). 

Single 

18 U.S.C. § 1028A Count

89.2%

(N=872)

Multiple 

18 U.S.C. § 1028A Counts

10.8%

(N=106)

[N=978]

Number of 18 U.S.C. § 1028A Counts 

for Multiple Count Cases

Total 106 100.0%

Two Counts 48 45.3%

Three Counts 26 24.5%

Four Counts 7 6.6%

Five or More (Range: 5 to 16) 25 23.6%

Figure 5. Offenders Convicted of Multiple Counts Under 18 U.S.C. § 1028A

Fiscal Years 2006 - 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

SOURCE: U.S. Sentencing Commission 2006 through 2016 Datafiles, USSCFY2006-USSCFY2016.

0

50

100

150

200

Multiple Counts of 18 U.S.C. § 1028A

Figure 6. Offenders Convicted of Multiple Counts Under 18 U.S.C. § 1028A

Fiscal Years 2006 - 2016
 17

Section Four:

Data Analysis

The number of offenders convicted of 

multiple counts under section 1028A has 

fluctuated but has remained a relatively 

small percentage of all offenders convicted 

under the statute. As with the number of all 

offenders convicted under section 1028A, the 

number of offenders convicted of multiple 

counts has generally increased during the time 

the Commission has collected data on these 

offenses, peaking at 164 offenders in fiscal year 

2014 (from 29 in 2006) and decreasing to 106 

in fiscal year 2016.

Where Were Offenders Convicted of 

Offenses Under Section 1028A?

Cases involving a conviction under 

section 1028A were primarily concentrated in 

three circuits. Of the 978 cases in fiscal year 

2016, the most—slightly more than one-third 

(34.7%; n=339)—were from district courts in 

the Eleventh Circuit. The next largest portions 

came from district courts in the Fourth Circuit 

(14.0%; n=137) and Ninth Circuit (9.8%; 

n=96). Thus, over half (58.5%; n=572) of the 

978 cases involving the aggravated identity 

theft mandatory minimum penalty were from 

district courts in those three circuits. This is 

consistent with fiscal year 2010, when 54.3 

percent (n=433) of the 797 section 1028A 

cases were from the district courts of these 

same three circuits. However, the percentage 

that were from district courts in the Eleventh 

Circuit has increased substantially, from 23.8 

percent (n=190) in fiscal year 2010. The 

other cases were distributed throughout the 

remaining circuits, with the fewest from the 

district courts in the First Circuit (2.4%; n=23), 

and the District of Columbia Circuit, which did 

not have any section 1028A cases.

Figure 7. Geographic Distribution of Offenders Convicted Under 18 U.S.C. § 1028A

Fiscal Year 2016

* There were zero districts with 10-19 cases involving multiple counts of conviction under 18 U.S.C. § 1028A.

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Number of Aggravated Identity Theft Cases in Each District Number of Aggravated Identity Theft Cases in Each District

Multiple Counts Under 18 U.S.C. § 1028A

Number of 

Offenders

10-19 20-39 40-59 80 or 

more

Zero 1-5 6-9

Number of 

Offenders

Zero 1-5 6-9 10-19* 20-39
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

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Cases involving a conviction under section 

1028A were more geographically dispersed 

when viewed at the district level. Nonetheless, 

a disproportionately large number of cases came 

from eight districts. The Southern District of 

Florida had substantially more cases involving 

a conviction of an offense under section 1028A 

than any other district. Of the 978 cases in fiscal 

year 2016 involving a conviction under section 

1028A, 203 (20.8%) were from the Southern 

District of Florida. Six other districts reported 

30 or more cases of a conviction under section 

1028A: 50 in the Southern District of New York 

(5.1%); 48 in the District of Maryland (4.9%); 

45 in the Middle District of Florida (4.6%); 43 

in the Eastern District of Pennsylvania (4.4%); 

36 in the Eastern District of Virginia (3.7%); 

and 34 in the Northern District of Georgia 

(3.5%). Sixty-one districts had between one 

and ten cases involving a conviction of an 

offense under section 1028A and eight districts 

had no such cases. 

The Commission further analyzed the 

geographic distribution of cases involving 

multiple convictions under section 1028A. 

Only the Third Circuit had more than 20 (n=23) 

cases in which a defendant was convicted of 

multiple counts under section 1028A. The 

Fourth, Ninth, and Eleventh Circuits each 

had between ten and twenty such cases—

accounting for more than two-thirds (67.9%) of 

all multiple count cases in fiscal year 2016—

while the rest of the circuits had fewer than 

ten cases with multiple counts under section 

1028A.41

Other Counts of Conviction

As noted above, in order to be convicted 

under section 1028A, an offender must have 

“knowingly transferred, possessed, or used 

a means of identification of another person 

during and in relation to any enumerated 

18 U.S.C. § 1028A Only

11.3%

(N=111)

18 U.S.C. § 1028A and 

Another Offense

88.7%

(N=867)

[N=978]

Offense Percent

Theft/Fraud (§2B1.1) 88.8%

Immigration (Any §2L) 4.7%

Tax (Any §2T) 2.1%

All Other Offenses 4.4%

Figure 8. Offenders Convicted Under 18 U.S.C. § 1028A by Additional Offenses of Conviction

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16. 
 19

Section Four:

Data Analysis

felony violation.” Consistent with this 

statutory language, the majority of section 

1028A offenders—88.7 percent—were also 

convicted of at least one other felony offense. 

Of the 867 offenders convicted under section 

1028A and of at least one other felony offense, 

the majority—88.8 percent—were sentenced 

under §2B1.1 (n=770).42 The remaining 

offenders were sentenced under the guidelines 

applicable to immigration offenses (4.7%, 

n=41),43 tax offenses (2.1%, n=18),44 or other 

offenses (4.4%, n=38).45

 Although 11.3 percent (n=111) of section 

1028A offenders were not convicted of another 

offense, those cases necessarily involved 

another federal offense for which they could 

have been, but were not, prosecuted. The 

majority—83.8 percent—of the 111 offenders 

convicted only under section 1028A in fiscal 

year 2016, had felony violations that, if 

convicted, would have been sentenced under 

§2B1.1. The remaining offenders had felony 

violations that, if convicted, would have been 

sentenced under an immigration (15.3%) 

or firearms (0.9%) guideline.46 Of the 93 

offenders whose felony violations would have 

resulted in sentences under §2B1.1, the most 

common offense types were fraud against a 

financial institution (29.0%), identity theft 

(26.9%), and credit card fraud (23.7%).47

Sentencing Multiple Counts of Conviction

As discussed above, section 1028A 

provides sentencing courts the option of 

imposing concurrent sentences, in whole or in 

part, in cases with multiple counts of conviction 

under the statute. Overall, sentencing courts 

generally opted for imposing concurrent 

terms of imprisonment. In fiscal year 2016, 

for the majority—89.6 percent—of the 106 

offenders convicted of multiple counts under 

section 1028A, the sentences imposed for the 

additional counts of conviction were imposed 

concurrently. 

Consecutive Sentences 

Imposed

10.4%

(N=11)

No Consecutive Sentences 

Imposed

89.6%

(N=95)

[N=106]

Figure 9. Sentences Imposed for Offenders Convicted of Multiple Counts Under 18 U.S.C. § 1028A

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 20

Even when imposing consecutive terms 

of imprisonment, courts continued to use 

their discretion with respect to the number of 

terms imposed consecutively and the length of 

those terms. First, for the 11 cases in which 

courts imposed consecutive sentences for the 

additional section 1028A counts, terms were 

imposed consecutively on all of the additional 

counts in six cases,48 while in the remaining 

five cases only some of the terms were imposed 

consecutively to one another.49 

Second, courts did not always impose full 

24-month terms when imposing consecutive 

terms for multiple counts. While courts did 

most often (in 8 of the 11 cases50) impose the 

entire 24-month term to run consecutively 

to other sentences for additional counts of 

conviction under section 1028A, in three 

cases only part of the 24-month sentence was 

imposed consecutively, with the rest imposed 

concurrently to another sentence.51 In each of 

these three cases, courts imposed 12-month 

consecutive sentences.

Offender Demographics

Race, Gender, and Citizenship

Black offenders were convicted under 

section 1028A at a higher rate than any other 

racial group. As demonstrated in Figure 10, 

in fiscal year 2016, Black offenders were 49.8 

percent of all identity theft offenders, but 58.7 

percent of offenders convicted under section 

1028A. Smaller percentages of White offenders 

(18.7% compared to 20.9%) and Hispanic 

offenders (19.1% compared to 24.9%) were 

convicted under section 1028A as compared 

with their portion of identity theft offenders 

overall. 

Black

58.5%

Black

58.7%

Black

49.8%

White

25.5%

White

18.7%

White

20.9%

Hispanic

13.2%

Hispanic

19.1%

Hispanic

24.9%

Other

2.8%

Other

3.5%

Other

4.4%

Black White Hispanic Other

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

All Identity Theft Offenders

Convicted Under 18 U.S.C. § 1028A

Convicted of Multiple Counts of 18 U.S.C. § 1028A

Figure 10. Race of 18 U.S.C. § 1028A Offenders Compared to All Other Identity Theft Offenders

Fiscal Year 2016
 21

Section Four:

Data Analysis

While Black offenders have generally 

comprised the largest proportion of both 

identity theft offenders as a whole and 

those convicted under section 1028A, their 

percentage of each group has steadily increased 

over time. In fiscal year 2010, 40.2 percent 

of identity theft offenders convicted under 

section 1028A were Black offenders, which 

was relatively consistent with the percentage of 

Black identity theft offenders overall (39.6%). 

By fiscal year 2016, however, Black offenders 

constituted 49.8 percent of all identity theft 

offenders, while their proportion of those 

convicted under section 1028A increased at 

an even faster pace. As reflected in Figure 

11, Black offenders represented a majority of 

identity theft offenders convicted under section 

1028A, at 58.7 percent, in fiscal year 2016. 

Conversely, White offenders have become an 

increasingly smaller proportion of identity 

theft offenders convicted under section 1028A, 

having decreased by nearly half from 32.8 

percent in fiscal year 2010 to 18.7 percent in 

fiscal year 2016. White offenders also became 

a smaller proportion of identity theft offenders 

overall, decreasing from 30.0 percent to 20.9 

percent during the same time period. 

Another way to analyze the application 

of section 1028A among racial groups is 

to compare the percentage of identity theft 

offenders in each racial group who were 

convicted under 1028A. Using this approach 

(reflected in Figure 12), a majority (63.1%) of 

Black identity theft offenders were convicted 

under section 1028A. This rate was higher 

than the rate for White offenders (47.8%), 

Other Race offenders (42.0%), and Hispanic 

offenders (41.1%).

SOURCE: U.S. Sentencing Commission 2006-2016 Datafiles, USSCFY2006 -USSCFY2016.

0.0

20.0

40.0

60.0

80.0

100.0

2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016

White Black Hispanic Other

Figure 11. Race of 18 U.S.C. § 1028A Offenders

Fiscal Years 2006 - 2016

percent
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 22

Black offenders were also most likely to 

be convicted of multiple counts under section 

1028A, comprising 58.5 percent of such 

offenders. White offenders were convicted of 

multiple counts under section 1028A at a higher 

rate than they were convicted of at least one 

count under section 1028A (25.5% compared 

to 18.7%), while the opposite was true for 

Hispanic offenders (13.2% of those convicted 

of multiple counts under section 1028A 

compared to 19.1% of offenders convicted of 

at least one count under section 1028A). 

The majority (78.6%) of offenders 

convicted under section 1028A were United 

States Citizens. Male offenders were convicted 

under section 1028A more frequently than 

female offenders, accounting for 72.6 percent 

of offenders convicted under section 1028A. 

However, female offenders comprised a much 

larger percentage (27.4%) of section 1028A 

offenders than they did of offenders convicted 

of any offense carrying a mandatory minimum 

penalty (10.0%).

Table 1. Race of Identity Theft Offenders

Fiscal Year 2016

All

Identity Theft 

Offenders

Convicted Under 

18 U.S.C. § 1028A

Subject to 

Mandatory Minimum 

Penalty

Convicted of 

Multiple Counts Under 

18 U.S.C. § 1028A

Total Number of Offenders 1,831 978 824 106

RACE

White 20.9% 18.7% 19.2% 25.5%

Black 49.8% 58.7% 58.5% 58.5%

Hispanic 24.9% 19.1% 19.5% 13.2%

Other 4.4% 3.5% 2.8% 2.8%

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

47.8%

63.1%

41.1% 42.0%

52.2%

36.9%

58.9% 58.0%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

White Black Hispanic Other

Convicted Under 18 U.S.C. § 1028A Not Convicted Under 18 U.S.C. § 1028A

Figure 12. Percent of Identity Theft Offenders with 18 U.S.C. § 1028A Conviction

By Race

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.
 23

Section Four:

Data Analysis

Age

The average age for section 1028A offenders 

was 36 years. Offenders convicted under 

section 1028A were fairly evenly distributed 

throughout age brackets 26 through 50, with 

fewer younger than 21 (0.8%; n=8), 21 through 

25 (13.6%; n=133), or older than 50 (8.6%; 

n=84). Combined, offenders younger than 21, 

ages 21 to 25, and older than 50, accounted for 

less than one-quarter of all offenders convicted 

under section 1028A. 

Table 2. Gender and Citizenship of Identity Theft Offenders

Fiscal Year 2016

All

Identity Theft 

Offenders

Convicted Under 

18 U.S.C. § 1028A

Subject to 

Mandatory Minimum 

Penalty

Convicted of 

Multiple Counts Under 

18 U.S.C. § 1028A

Total Number of Offenders 1,831 978 824 106

GENDER

Male 70.6% 72.6% 74.6% 70.8%

Female 29.4% 27.4% 25.4% 29.2%

CITIZENSHIP

U.S. Citizen 73.1% 78.6% 78.4% 87.7%

Non-U.S. Citizen 26.9% 21.4% 21.6% 12.3%

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 13. Age of Offenders Convicted Under 18 U.S.C. § 1028A

Fiscal Year 2016

Younger than 21

0.8%

(N=8)

21-25

13.6%

(N=133)

26-30

21.8%

(N=213)

31-35

20.0%

(N=196)

36-40

15.6%

(N=153)

41-50

19.5%

(N=191)

Older than 50

8.6%

(N=84)

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 24

Criminal History

Nearly half (45.0%) of offenders convicted 

under section 1028A were in Criminal History 

Category I, the lowest criminal history 

category. The next largest groups were in 

Criminal History Category III (16.8%) and 

Criminal History Category II (12.9%), with less 

than ten percent in each of the higher criminal 

history categories. Offenders convicted under 

section 1028A had more criminal history than 

identity theft offenders generally. More than 

half (51.7%) of all identity theft offenders were 

in Criminal History Category I, with slightly 

smaller portions in each of the other criminal 

history categories than those of offenders 

convicted under section 1028A. 

The distribution of criminal history 

categories in fiscal year 2016 is largely consistent 

with that of fiscal year 2010. However, in 

fiscal year 2016, smaller percentages of section 

1028A offenders were in the higher criminal 

history categories V and VI (9.7% compared to 

15.0% in CHC VI and 5.8% compared to 8.0% 

in CHC V). 

A larger proportion of offenders convicted 

of multiple counts under section 1028A were in 

Criminal History Category IV, V, and VI. For 

multiple count offenders, 35.9 percent were 

in Criminal History Category IV, V, and VI, 

combined, while only 25.3 percent of those 

convicted of at least one offense under section 

1028A were in these higher categories.

Offense Characteristics

Given the differing and broad nature of the 

types of underlying offenses forming the basis 

of an identity theft conviction, it is difficult to 

compare relevant offense characteristics. In 

order to make such a comparison, this section 

considers only those identity theft offenders 

sentenced pursuant to §2B1.1 because of 

another count of conviction. Accordingly, 

this analysis does not include identity theft 

offenders whose only count of conviction was 

of an offense under section 1028A or, by virtue 

of another count of conviction, were sentenced 

pursuant to a guideline provision other than 

§2B1.1.52 

Table 3. Criminal History of Offenders with a Conviction Under 18 U.S.C. § 1028A

Fiscal Year 2016

All

Identity Theft 

Offenders

Convicted Under 

18 U.S.C. § 1028A

Subject to 

Mandatory Minimum 

Penalty

Convicted of 

Multiple Counts Under 

18 U.S.C. § 1028A

Total Number of Offenders 1,831 978 812 106

CRIMINAL HISTORY CATEGORY

I 51.7% 45.0% 44.3% 37.7%

II 11.2% 12.9% 12.8% 10.4%

III 15.2% 16.8% 17.6% 16.0%

IV 8.4% 9.8% 9.5% 12.3%

V 4.7% 5.8% 5.8% 7.6%

VI 8.8% 9.7% 10.0% 16.0%

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.
 25

Section Four:

Data Analysis

Of the 978 offenders convicted of an offense 

under section 1028A in fiscal year 2016, 770 

offenders were also convicted of another 

offense for which they were sentenced pursuant 

to §2B1.1 and are therefore included in this 

analysis. For comparison purposes, a nearly 

equal number of identity theft offenders (n=764) 

were convicted of an offense sentenced under 

§2B1.1 but were not convicted under section 

1028A.

As reflected in Table 4, there were notable 

differences among offenders convicted under 

section 1028A and those who were not. The 

median loss was more than double for offenders 

convicted under section 1028A ($189,000) than 

for offenders who were not ($84,114). Similarly, 

the rate of application for both the victims and 

sophisticated means enhancement was higher 

for those also convicted under section 1028A.53 

Considering offenders convicted under 

section 1028A, with the exception of the median 

loss amount, there were negligible differences 

in the severity of offenses committed by 

offenders who were relieved of the mandatory 

penalty and offenses committed by those who 

were not relieved of the mandatory penalty. Of 

these 770 offenders, 82.6 percent (n=636) were 

subject to the section 1028A mandatory penalty 

at sentencing, while 17.4 percent (n=134) 

were relieved of the mandatory penalty. The 

percentage of offenders in each group receiving 

enhancements for causing financial harm and 

using sophisticated means differed by less 

than three percentage points. The median 

loss amount, however, was higher for those 

relieved of the penalty than those subject to the 

penalty at sentencing. Offenders subject to the 

mandatory penalty had a median loss amount 

of $185,890, while offenders relieved of the 

mandatory penalty had a median loss amount 

of $246,303.

Table 4. Guideline Sentencing Characteristics of Identity Theft Offenders 

Sentenced under §2B1.1 (Theft/Fraud)

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Not

Convicted Under 

18 U.S.C. § 1028A

Convicted Under 

18 U.S.C. § 1028A

Relief from

Mandatory Minimum 

Penalty

Subject to 

Mandatory Minimum 

Penalty

Total Number of Offenders 764 770 134 636

SENTENCING CHARACTERISTICS

Harmed Victims Financially 48.4% 66.6% 64.9% 67.0%

Used Sophisticated Means 19.0% 20.9% 21.6% 20.8%

Median Loss Amount $84,114 $189,000 $246,303 $185,890
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 26

Plea and Trial Rates

Offenders convicted under section 1028A 

were considerably more likely to proceed to 

trial than identity theft offenders who were not 

convicted of section 1028A, and slightly more 

likely than offenders convicted of any offense 

carrying any mandatory minimum penalty 

(5.2%). In fiscal year 2016, 6.2 percent (n=61) 

of offenders convicted under section 1028A 

proceeded to trial, compared to 0.7 percent 

(n=6) of identity theft offenders not convicted 

under section 1028A. By contrast, only 2.7 

percent of all federal offenders proceeded to 

trial. 

Offenders convicted of multiple counts 

under section 1028A were even more likely to 

proceed to trial (33.0%). 

Relief from Mandatory Minimum Penalties

In fiscal year 2016, nearly one-sixth 

(15.7%, n=154) of offenders convicted under 

section 1028A were relieved of the mandatory 

minimum penalty at sentencing pursuant to 

18 U.S.C. § 3553(e) for rendering substantial 

assistance to the government. Offenders 

convicted under section 1028A received a 

substantial assistance departure at a slightly 

higher rate than offenders convicted of an 

identity theft offense not carrying a mandatory 

minimum (12.8%), and offenders convicted of 

multiple counts under section 1028A (14.2%).

Figure 14. 18 U.S.C. § 1028A Conviction Status of Identity Theft Offenders by Percent of Offenders Going to Trial

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

3.7%

0.7%

6.2%

3.0%

33.0%

All Identity Theft Offenders

Not Convicted Under 18 U.S.C. § 1028A

Convicted Under 18 U.S.C. § 1028A

Single Count Under 18 U.S.C. § 1028A

Multiple Counts Under 18 U.S.C. § 1028A
 27

Section Four:

Data Analysis

The percentage of identity theft offenders 

who remained subject to the mandatory 

minimum penalty at sentencing increased at 

a similar rate as the rate of convictions under 

the statute increased, more than doubling from 

19.1 percent in 2006, to 45.0 percent in fiscal 

year 2016. 

Relieved of 

Mandatory 

Minimum Penalty

15.7%

(N=154)

No Relief

84.3%

(N=824)

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

Figure 15. 18 U.S.C. § 1028A Offenders Relieved of Mandatory Minimum Penalty

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission 2006 through 2016 Datafiles, USSCFY2006-USSCFY2016.

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Convicted Under 18 U.S.C. § 1028A

Subject to Identity Theft Mandatory Minimum Penalty at Sentencing

Figure 16. Percent of Identity Theft Offenders Convicted Under 18 U.S.C. § 1028A

and Subject to Mandatory Minimum at Sentencing

Fiscal Years 2006 - 2016
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 28

Demographics

The relief rates between Black (16.0%), 

White (13.7%), and Hispanic offenders 

(13.9%) varied by less than three percentage 

points. Other Race offenders received relief at 

a much higher rate (32.3%). However, Other 

Race offenders represented a very small portion 

of offenders convicted under section 1028A 

(of 34 offenders total, 11 were relieved of the 

mandatory minimum penalty).54

Female offenders convicted under section 

1028A received relief from the mandatory 

minimum penalty more often than male 

offenders (22.0% compared to 13.4%).

Figure 17. Percent of Offenders Convicted Under 18 U.S.C. § 1028A Who Were Relieved of the Penalty by Race

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

84.3% 86.3% 84.0% 86.1%

67.7%

15.7% 13.7% 16.0% 13.9%

32.3%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Offenders Convicted Under

18 U.S.C. § 1028A

White Black Hispanic Other

Subject to 18 U.S.C. § 1028A Substantial Assistance

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

86.6%

78.0%

84.0% 85.2%

13.4%

22.0%

16.0% 14.8%

0.0%

20.0%

40.0%

60.0%

80.0%

100.0%

Male Female U.S. Citizen Non-U.S. Citizen

Subject to 18 U.S.C. § 1028A Substantial Assistance

Figure 18. Percent of Offenders Convicted Under 18 U.S.C. § 1028A Who Were Relieved of the Penalty 

by Gender and Citizenship

Fiscal Year 2016
 29

Section Four:

Data Analysis

United States citizens and non-United States 

citizens obtained relief from the mandatory 

minimum penalty at nearly equal rates (16.0% 

compared to 14.8%).

Sentencing of Identity Theft Offenders

Average Sentence Length

The Commission compared the average 

sentence length for identity theft offenders 

convicted of an offense other than under 

section 1028A, offenders convicted of at least 

one offense under section 1028A, and offenders 

convicted of multiple counts under section 

1028A. For offenders convicted of at least one 

offense under section 1028A, the Commission 

further compared the average sentence length 

for offenders subject to and relieved from 

application of the mandatory minimum penalty 

under section 1028A. 

Identity theft offenders convicted of an 

offense under section 1028A had longer 

sentences than identity theft offenders not 

convicted of an offense under section 1028A, 

regardless of whether they received relief from 

the mandatory minimum penalty at sentencing. 

In fiscal year 2016, the average sentence for 

offenders convicted of at least one count under 

section 1028A was more than double the average 

sentence length for offenders convicted of an 

identity theft offense not carrying a mandatory 

minimum penalty (51 months compared to 22 

months). Identity theft offenders convicted 

of at least one count under section 1028A and 

subject to the mandatory minimum penalty 

at sentencing had a slightly longer average 

sentence of 54 months, while those who were 

relieved of the mandatory minimum penalty 

had an average sentence of 32 months. 

Figure 19. Average Sentence Length for Identity Theft Offenders and Status of Relief from the Mandatory Minimum Penalty

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

37 mos.

22 mos.

51 mos.

32 mos.

54 mos.

All Identity Theft [N=1,831]

Not Convicted Under 18 U.S.C. § 1028A [N=853]

Convicted Under 18 U.S.C. § 1028A [N=978]

Relieved of 18 U.S.C. § 1028A Penalty [N=154]

Subject to 18 U.S.C. § 1028A Penalty at

Sentencing [N=824]
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 30

As noted previously, 11.3 percent of 

offenders were convicted under section 1028A 

only, while 88.7 percent were convicted of 

both an offense under section 1028A and 

another offense. As shown in Figure 20, the 

average sentence was more than double for 

offenders who were convicted under section 

1028A and another statute compared to the 

average sentence for offenders convicted under 

section 1028A only (54 months compared to 22 

months). This difference reflects the statutory 

requirements that the penalty for section 1028A 

be imposed consecutively to any other term of 

imprisonment imposed on the offender and that 

Figure 20. Average Sentence Length for Offenders Convicted Under 18 U.S.C. § 1028A and Another Statute

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

51 mos.

22 mos.

54 mos.

0

24

48

72

96

120

144

Convicted Under 18 U.S.C. § 1028A [N=978] Convicted Under 18 U.S.C. § 1028A Only

[N=111]

Convicted Under 18 U.S.C. § 1028A and

Another Statute [N=867]

months

Figure 21. Average Sentence Length for Offenders Convicted of Single and Multiple Counts Under 18 U.S.C. § 1028A

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

48 mos.

74 mos.

0

24

48

72

96

120

144

Convicted of Single Count Under 18 U.S.C. § 1028A [N=872] Convicted of Multiple Counts Under 18 U.S.C. § 1028A [N=106]

months
 31

Section Four:

Data Analysis

the term imposed for the underlying offense not 

be reduced to compensate for the mandatory 

section 1028A penalty.

As shown in Figure 21, offenders convicted 

of multiple counts under section 1028A had 

longer sentences than any other category. In 

fiscal year 2016, the average sentence for 

offenders convicted of multiple counts under 

section 1028A was 74 months, more than two 

years longer than those offenders convicted of a 

single count under section 1028A (48 months).

The longer sentence length for those with 

multiple counts is likely attributable to two 

factors. First, courts sentenced some offenders 

(10.4%) with multiple counts consecutively 

for each section 1028A count.55 Additionally, 

offenders who were also convicted of another 

offense were more likely to have faced multiple 

counts under section 1028A. Of the offenders 

with a conviction for another offense, 12.0 

percent were convicted of multiple counts 

under section 1028A, while only 1.8 percent 

of offenders without additional conduct were 

convicted of multiple counts under 1028A. 

As noted above, the statute prescribes longer 

sentences for these offenders because the 

sentence for the section 1028A count must be 

imposed consecutively to the sentence for the 

underlying count of conviction. 

Relief had a notable impact on sentences for 

offenders convicted of multiple counts under 

section 1028A. Offenders convicted of multiple 

counts under section 1028A and subject to the 

mandatory minimum at sentencing had average 

sentences of 81 months. Offenders convicted 

of multiple counts under section 1028A and 

relieved of the mandatory minimum penalty at 

sentencing had average sentences of 33 months.

Figure 22. Average Sentence Length for Offenders Convicted of Multiple Counts Under 18 U.S.C. § 1028A 

By Status of Relief from the Mandatory Minimum Penalty

Fiscal Year 2016

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.

74 mos.

33 mos.

81 mos.

0

24

48

72

96

120

144

Convicted of Multiple Counts Under

18 U.S.C. § 1028A [N=106]

Relieved of Multiple Counts of

18 U.S.C. § 1028A [N=15]

Subject to Multiple Counts of

18 U.S.C. § 1028A [N=91]

months
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 32

Demographics

The Commission also compared the 

average length of sentences imposed by race, 

citizenship, and gender. Black offenders had the 

longest average sentence (54 months), closely 

followed by White Offenders (52 months), 

and then Other Race offenders (47 months). 

Hispanic offenders had the shortest average 

sentence length (39 months). While Black 

offenders continued to have the longest average 

sentence and Hispanic offenders the shortest, 

this represents a change from fiscal year 2010 

when Other Race and Black offenders received 

average sentences that were somewhat longer 

(54 and 53 months, respectively) than their 

White and Hispanic counterparts (45 and 40 

months, respectively). 

The average sentence for male offenders 

was almost one year longer than the average 

sentence for female offenders (54 months 

compared to 43 months), while the average 

sentence for United States Citizens was eight 

months longer than the average sentence 

for non-United States Citizens (53 months 

compared to 45 months).

Figure 23. Average Sentence Length for Offenders Convicted Under 18 U.S.C. § 1028A 

By Selected Demographic Characteristics

Fiscal Year 2016

52 mos. 54 mos.

39 mos.

47 mos. 54 mos.

43 mos.

53 mos.

45 mos.

0

24

48

72

96

120

144

White Black Hispanic Other Male Female U.S. Citizen Non-U.S.

Citizen

months

SOURCE: U.S. Sentencing Commission, 2016 Datafile, USSCFY16.
 33

Section Four:

Data Analysis

Identity theft offenders accounted for 

slightly more than two percent (2.2%, n=3,694) 

of the federal prison population as of September 

30, 2016. Of identity theft offenders in prison, 

the majority (62.5%, n=2,308) were convicted 

under section 1028A and remained subject to 

the mandatory minimum penalty at sentencing, 

while more than one-quarter (29.1%, n=1,075) 

were convicted of an identity theft offense 

under a statute other than section 1028A. Only 

a small percentage of identity theft offenders 

in prison (8.4%, n=311) were convicted of an 

offense under section 1028A and relieved of 

the mandatory minimum penalty, which would 

be expected given that the rates of relief are 

relatively low and the mandatory minimum 

penalty is relatively short.

Identity Theft Offenders in the Federal 

Prison Population

There have been significant changes to the 

federal prison population over the past 25 years. 

There was a steady increase in the total number 

of offenders in the federal prison population 

from 1995 through 2012,56 which was the result 

of several factors, including the scope and use 

of mandatory minimum penalties.57 However, 

in recent years, this trend has reversed. Since 

the high point at the end of 2012, the number 

of federal inmates fell to 196,455 on December 

31, 2015.58

Not Convicted Under 

18 U.S.C. § 1028A

29.1%

(N=1,075)

Convicted Under & Relieved 

of 18 U.S.C. § 1028A Penalty

8.4%

(N=311)

Convicted Under & Subject to 

18 U.S.C. § 1028A Penalty at 

Sentencing

62.5%

(N=2,308)

Identity Theft Offenders

2.2%

(N=3,694)

All Other Offenders

97.8%

(N=163,077)

BOP Population 

as of September 30, 2016

SOURCE: U.S. Sentencing Commission, and Bureau of Prisons Combined 2016 Datafile, USSCBOP. 

Identity Theft Offenders in BOP Population 

as of September 30, 2016

Figure 24. Identity Theft Offenders in the Bureau of Prisons Population

At the End of Fiscal Year 2016
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 34
5 Conclusion
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 36

Conclusion

Since the Commission’s 2011 Mandatory 

Minimum Report, offenders convicted of 

an offense carrying a mandatory minimum 

penalty for identity theft continued to 

represent a small portion of both the federal 

caseload and those cases involving any 

mandatory minimum penalty. However, the 

use of section 1028A mandatory minimum 

penalties has increased. Since the 2011 

report, the percentage of identity theft 

offenders convicted under section 1028A 

increased by nearly ten percentage points 

, from 42.6 percent to 53.4 percent (and 

more than doubled since the Commission 

began collecting data on these offenses in 

fiscal year 2006). Section 1028A aggravated 

identity theft offenses also increased as a 

portion of all offenses carrying a mandatory 

minimum penalty, from 4.0 percent in 2010 

to 7.2 percent in fiscal year 2016.

At the time that it published the 2011 

Mandatory Minimum Report, the Commission 

noted that it was “difficult to issue specific 

findings and recommendations regarding 

the operation of section 1028A” because 

the offense of aggravated identity theft was 

relatively new, having been established in 

2004. With the benefit of additional time and 

data, however, there are now certain notable 

trends with respect to the use of section 

1028A. 

In particular, in the 2011 report, the 

Commission noted that, in contrast with other 

offenses carrying mandatory minimum penalties, 

there were not demographic differences in the 

application of section 1028A. Specifically, at 

that time, Black offenders and White offenders 

each comprised relatively similar proportions of 

those offenders convicted under section 1028A 

(40.2% compared to 32.8%). Moreover, each 

group’s proportion of aggravated identity theft 

offenders was consistent with their proportion 

of identity theft offenders as a whole. Black 

offenders represented 39.7 percent of identity 

theft offenders overall and 40.2 percent of those 

convicted under section 1028A. Similarly, 

White offenders represented 29.9 percent of 

all identity theft offenders and 32.8 percent of 

section 1028A offenders in fiscal year 2010. 

This relationship has now changed. By 

fiscal year 2016, while Black offenders 

constituted 49.8 percent of all identity theft 

offenders, they represented 58.7 percent of 

identity theft offenders convicted under section 

1028A. Conversely, White offenders have 

become an increasingly smaller proportion of 

identity theft offenders convicted under section 

1028A, having decreased by nearly half from 

32.8 percent in fiscal year 2010 to 18.7 percent 

in fiscal year 2016, a decrease larger than their 

respective decrease in identity theft offenders 

overall. Consistent with these shifts, a majority 

(63.1%) of Black identity theft offenders were 

convicted under section 1028A, a rate notably 

higher than the rate for White offenders 

(47.8%), Other Race offenders (42.0%), and 

Hispanic offenders (41.1%). 
Endnotes
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 38

1 U.S. Sentencing Comm’n, Overview of Mandatory Minimum Penalties in the Federal Criminal 

Justice System (July 2017) [hereinafter 2017 Overview Publication], available at https://www.ussc.gov/sites/

default/files/pdf/research-and-publications/research-publications/2017/20170711_Mand-Min.pdf.

2 U.S. Sentencing Comm’n, Mandatory Minimum Penalties for Drug Offenses in the Federal Criminal 

Justice System (Oct. 2017), available at https://www.ussc.gov/sites/default/files/pdf/research-andpublications/

research-publications/2017/20171025_Drug-Mand-Min.pdf; U.S. Sentencing Comm’n, Mandatory Minimum 

Penalties for Firearms Offenses in the Federal Criminal Justice System (Mar. 2018) [hereinafter 2018 

Firearms Publication], available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2018/20180315_Firearms-Mand-Min.pdf; Application and Impact of 21 U.S.C. § 851: Enhanced 

Penalties for Federal Drug Trafficking Offenders (July 2018), available at https://www.ussc.gov/sites/default/

files/pdf/research-and-publications/research-publications/2018/20180712_851-Mand-Min.pdf.

3 U.S. Sentencing Comm’n, 2011 Report to Congress: Mandatory Minimum Penalties in the Federal 

Criminal Justice System [hereinafter 2011 Mandatory Minimum Report], available at https://www.ussc.gov/

research/congressional-reports/2011-report-congress-mandatory-minimum-penalties-federal-criminal-justice-system.

4 USSG §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; 

Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments 

Other than Counterfeit Bearer Obligations of the United States). The enhancement for identity theft is found at 

§2B1.1(b)(11)(C). There are other offense types, particularly immigration offenses, in which an offender may have 

engaged in identity theft or similar conduct but was not convicted of identity theft under section 1028 or aggravated 

identity theft under section 1028A. See, e.g., USSG §§2L2.1 (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) and 2L2.2 

(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). Those cases are not included in the analyses for this publication because they are 

not convictions under an identity theft statute, and the guideline provisions applicable to such offenses do not include 

enhancements for identity theft. As a result, there is no reliable way to identify such cases as having involved identity 

theft. The Commission’s analysis of identity theft offenses, therefore, may be under-inclusive. 

5 18 U.S.C. § 1028A(a)(1). Subsection (a)(2) provides for a mandatory five-year penalty if the defendant 

“during and in relation to any felony [terrorism offense] enumerated in section 2332b(g)(5)(B), knowingly transfer[red], 

possess[ed], or use[d], without lawful authority, a means of identification of another person or a false identification 

document.” This provision and the five-year penalty were applied in only one case in fiscal year 2016 and are 

therefore not discussed in this publication. 

6 Pub. L. No. 108-275, § 2, 118 Stat. 831 (2004).

7 18 U.S.C. § 1028A(a)(1). 

8 The term “means of identification” means “any name or number that may be used, alone or in conjunction 
 39

Endnotes

with any other information, to identify a specific individual,” and includes names, social security numbers, dates of 

birth, driver’s license numbers, government identification numbers, employer or taxpayer identification numbers, 

biometric data (e.g., fingerprint, voice print, retina or iris image), electronic identifying information, or access device.” 

18 U.S.C. § 1028(d)(7). The term access device means “any card, plate, code, account number, electronic serial 

number, mobile identification number, personal identification number . . . or other means of account access that can be 

used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value 

. . . .” 18 U.S.C. § 1029(e)(1). 

9 18 U.S.C. § 1028A(c)(1) (listing 18 U.S.C. § 641 (relating to theft of public money, property, or rewards), 

18 U.S.C. § 656 (relating to theft, embezzlement, or misapplication by bank officer or employee), and 18 U.S.C. § 664 

(relating to theft from employee benefit plans)).

10 See 18 U.S.C. § 1028(c)(3) (listing 18 U.S.C. § 922(a)(6) (relating to false statements in connection with 

the acquisition of a firearm); 18 U.S.C. § 1028A(c)(4) (any provision other than sections 1028A or 1028(a)(7) in 

chapter 47 of title 18, United States Code (relating to fraud and false statements)); 18 U.S.C. § 1028A(c)(5) (any 

provision in chapter 63 of title 18, United States Code (relating to mail, bank, and wire fraud)); 18 U.S.C. § 1028A(c)

(8) (section 523 of the Gramm-Leach-Bliley Act (15 U.S.C. § 6823) (relating to obtaining customer information by 

false pretenses)); 18 U.S.C. § 1028A(c)(11) (sections 208, 811, 1107(b), 1128B(a), or 1632 of the Social Security Act 

(42 U.S.C. §§ 408, 1011, 1307(b), 1320a–7b(a), and 1383a) (relating to false statements relating to programs under 

the Act)).

11 18 U.S.C. § 1028A(c)(2) (listing 18 U.S.C. § 911 (relating to false personation of citizenship)); 18 U.S.C. 

§ 1028A(c)(6) (any provision in chapter 69 of title 18, United States Code (relating to nationality and citizenship)).

12 18 U.S.C. § 1028A(c)(7) (listing any provision in chapter 75 of title 18, United States Code (relating to 

passports and visas)).

13 18 U.S.C. § 1028A(c)(9) (listing section 243 or 266 of the Immigration and Nationality Act (8 U.S.C. §§ 

1253 and 1306) (relating to willfully failing to leave the United States after deportation and creating a counterfeit alien 

registration card)); 18 U.S.C. § 1028A(c)(10) (listing any provision contained in chapter 8 of title II of the Immigration 

and Nationality Act (8 U.S.C. § 1321 et seq.) (relating to various immigration offenses)).

14 18 U.S.C. § 1028A(b)(2). 

15 Id. § 1028A(b)(3). 

16 Id. § 1028A(a)(1). 

17 Id. § 1028A(b)(4). 

18 See 18 U.S.C. § 924(c); Deal v. United States, 508 U.S. 129 (1993). For further discussion of the “stacking” 
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 40

requirement and its impact on sentencing of firearms offenders, see 2018 Firearms Publication, supra note 2, at 8–9, 

19–20, 27, 32–33, 35.

19 See 18 U.S.C. § 1028(a).

20 For example, a person violates section 1028 if he or she, among other acts, “knowingly transfers, possesses, 

or uses, without lawful authority, a means of identification of another person with the intent to commit . . . or in 

connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any 

applicable State or local law.” 18 U.S.C. § 1028(a)(7). See United States v. Bonilla, 579 F.3d 1233 (11th Cir. 2009) 

(concluding that the defendant’s indictment and conviction of both identity theft in violation of section 1028(a)(7) and 

aggravated identity theft in violation of section 1028A(a)(1) violated the Double Jeopardy Clause).

21 For example, in addition to using a means of identification in connection with certain offenses, section 

1028 proscribes the unlawful production or transfer of an identification document, authentication feature, or a false 

identification document. See 18 U.S.C. § 1028(a)(1) & (2). This conduct does not necessarily give rise to criminal 

liability for aggravated identity theft under section 1028A.

22 See, e.g., 18 U.S.C. § 1029 (access device fraud), 18 U.S.C. § 1343 (wire fraud), and 42 U.S.C. § 408 (a)(7) 

(fraudulent use of a social security account number).

23 556 U.S. 646 (2009).

24 Id. at 657.

25 See, e.g., United States v. Foster, 740 F.3d 1202, 1206 & n.3 (concluding that because section 1028(a)(7) is 

identical to 1028A(a)(1), the two provisions require the same level of intent and citing United States v. Berry, 369 F. 

App’x 500, 501–02 (4th Cir. 2010) and United States v. Bruguier, 735 F.3d 754, 760 (8th Cir. 2013) (en banc) for the 

same proposition). 

26 USSG §2B1.6 (Aggravated Identity Theft).

27 USSG §2B1.6, comment. (n.1(B)).

28 USSG §2B1.1(b)(11)(C).

29 The guideline enhancement requires the commission of an underlying offense, that is, an offense covered by 

the §2B1.1 guideline. Those offenses include many of the enumerated felonies in section 1028A, such as mail fraud, 

wire fraud, bank fraud, and various social security frauds. Second, many, though not all, of the acts that trigger the 

guideline enhancement requires the commission of an underlying offense, that is, an offense covered by the §2B1.1 

guideline. Those offenses include many of the enumerated felonies in section 1028A, such as mail fraud, wire fraud, 

bank fraud, and various social security frauds. The enhancement and section 1028A are not entirely coextensive. 
 41

Endnotes

For example, if the offender used the means of identification only to purchase consumer goods or merely forged a 

signature to cash a stolen check, he or she may have committed aggravated identity theft, but §2B1.1(b)(11)(C) likely 

would not apply. See USSG §2B1.1, comment. (n.10(C)(ii)&(iii)). 

30 USSG §2B1.1(b)(1).

31 USSG §2B1.1(b)(2).

32 USSG §2B1.1(b)(10).

33 See 18 U.S.C. § 3553(e) (“Upon motion of the Government, the court shall have the authority to impose 

a sentence below a level established by statute as a minimum sentence so as to reflect a defendant’s substantial 

assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall 

be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission pursuant 

to section 994 of title 28, United States Code.”). 

34 See USSG §5K1.1. 

35 See Melendez v. United States, 518 U.S. 120 (1996).

36 2011 Mandatory Minimum Report, supra note 3, at 366–67.

37 Id. at 366.

38 Id.

39 In fiscal year 2016, the Commission’s datafile included 67,742 cases and, of those cases, the Commission 

received complete guideline application information and sufficient documentation for analysis in the 62,251 cases 

considered for this publication. The methodology used in this publication, with respect to records collection and data 

analysis, is described in detail in the 2017 Overview Publication, supra note 1, at 28.

40 Id. at 29.

41 The highest number of cases with multiple counts of conviction under section 1028A was in the Eastern 

District of Pennsylvania (n=23; 21.7%), followed by the Southern District of Florida (n=9; 8.5%). A complete 

distribution of offenders convicted under section 1028A is provided for each circuit and district in Appendix A.

42 Of these offenses, more than half (50.3%) were categorized as identity theft and nearly one-quarter were 

(24.0%) credit card fraud. The rest were fraud against a financial institution (14.7%) or “other” (11.0%).
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 42

43 These offenses were sentenced under a guideline at Chapter Two, Part L.

44 These offenses were sentenced under a guideline at Chapter Two, Part T. Some tax-related offenses 

pertaining to claims for false or fraudulent refunds of income tax are governed by the guidelines pertaining to fraud. 

These offenses are included in the 88.8% of identity theft offenders sentenced under §2B1.1. 

45 Offenses included within the “other” category were sentenced under a range of guidelines: §§2A3.5, 2A6.2, 

2B3.1, 2B3.2, 2B5.1, 2C1.1, 2D1.1, 2E1.1, 2K2.1, 2M6.1, and 2S1.1.

46 Offenders convicted of only a section 1028A offense are sentenced pursuant to USSG §2B1.6 (Aggravated 

Identity Theft) which states, in part, that “the guideline sentence is the term of imprisonment required by statute.” 

Because there is no other offense of conviction, there is no Chapter Two guideline or substantive statutes of conviction 

to indicate the nature of the other underlying conduct. In order to determine the nature of the underlying felony 

offense, the Commission reviewed charging documents related to the section 1028A count for each case to determine 

which of the enumerated statutes was implicated in that count and assigned cases to an offense category. 

47 The offense types for the remaining offenders (20.4%) were embezzlement/theft, government benefits, 

healthcare, immigration, money laundering, mortgage, and tax.

48 The total number of counts in these six cases ranged from a low of two to a high of five.

49 The total number of counts in these five cases ranged from a low of three to a high of 14.

50 The total number of counts in these eight cases ranged from a low of two to a high of 14.

51 The total number of counts in these three cases ranged from a low of two to a high of five.

52 The amount of the loss and number of victims are not available for those offenders because the applicable 

guideline provisions did not call for the sentencing court to make those calculations to determine the offense level.

53 In 2015, the Commission amended the loss table in §2B1.1 (to account for inflation), as well as the 

enhancements for causing financial harm to victims (§2B1.1(b)(2)) and for using sophisticated means (§2B1.1(b)(10)

(c)). See USSG App. C, amend. 791 (effect. Nov. 1, 2015) (loss table); USSG App. C, amend. 792 (effect. Nov. 1, 

2015) (financial harm to victims and sophisticated means enhancements). The victims table was revised to specifically 

incorporate financial hardship to victims and reduce the number of victims required to trigger the enhancement, and 

the sophisticated means enhancement was amended to clarify that application of the enhancement requires that the 

defendant intentionally caused the conduct by using sophisticated means. USSG App. C, amend. 792. Although the 

data in Table 4 includes only fiscal year 2016 data, it reflects both offenders sentenced under the amended Guidelines 

Manual, as well as offenders sentenced under an earlier, unamended version, because USSG §1B1.11 requires that the 

court use the manual in effect on the date the defendant committed the offense rather than on the date of sentencing if 

use of the latter would violate the ex post facto clause of the United States Constitution. See §1B1.11(b)(1). In fiscal 
 43

Endnotes

year 2016 the majority (82.5%) of identity theft offenders sentenced under §2B1.1 were sentenced under the amended 

version of the guideline. 

To assure that the trends reflected in Table 4 were not impacted by the 2015 amendment, the Commission 

separately analyzed the same data for those offenders sentenced under both the pre- and post-amendment version 

of §2B1.1. Although there were minor differences in the specific application rates of each guideline provision, the 

overall relationship between identity theft offenders convicted under and not convicted under section 1028A remains 

consistent. When analyzing only those offenders sentenced using the amended provisions, the median loss amount 

was more than double for offenders convicted under section 1028A compared to those not facing the mandatory 

minimum penalty ($192,003 compared to $86,393). The rates of application for both the victims and sophisticated 

means enhancements were likewise higher for those convicted under section 1028A (67.5% compared to 50.2%, and 

19.8% compared to 17.1%, respectively). 

54 The “Other Race” category includes offenders of Native American, Alaskan Native, and Asian or Pacific 

Islander origin. Of the offenders analyzed for this study, there were 2,472 offenders identified as “Other Race” 

offenders: 1,084 (43.8%) were of Asian/Pacific Islander origin, 1,175 (47.5%) were Native-American/Alaskan Native, 

and 213 (8.7%) were of other origin. For offenders convicted under section 1028A in fiscal year 2016, the “Other 

Race” category consists of Asian/Pacific Islander (n=26), other origin (n=7), and Native-American/Alaskan Native 

(n=1).

55 See supra at 20.

56 These population figures were obtained from the Bureau of Prisons data and reflect complete population 

figures. The remaining federal prison population analysis in this section is based on matching the BOP data with 

Commission data and therefore may reflect fewer offenders.

57 See 2011 Mandatory Minimum Report, at Ch.4. In the 2011 Mandatory Minimum Report, the Commission 

noted that these factors have included changes to mandatory minimum penalties themselves, both in terms of number 

and scope, as well as other systemic changes to the federal criminal justice system, such as the expanded federalization 

of criminal law, increased size and changes in the composition of the federal criminal docket, and higher rates of 

imposition of sentences of imprisonment. See id.

58 See 2017 Overview Publication, supra note 1, at 48–49.
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 44
Appendix
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 46

CIRCUIT

District Number Percent1 Number Percent2 Number Percent3

Total 1,831 2.9 978 53.4 106 10.8

D.C. CIRCUIT 4 1.6 0 0.0 0 0.0

District of Columbia 4 1.6 0 0.0 0 0.0

FIRST CIRCUIT 56 2.9 23 41.1 3 13.0

Maine 4 2.0 1 25.0 0 0.0

Massachusetts 17 3.7 5 29.4 1 20.0

New Hampshire 10 5.7 0 0.0 0 0.0

Puerto Rico 22 2.2 16 72.7 1 6.3

Rhode Island 3 3.3 1 33.3 1 100.0

SECOND CIRCUIT 112 3.4 62 55.4 4 6.5

Connecticut 1 0.3 1 100.0 0 0.0

New York

Eastern 19 2.5 2 10.5 0 0.0

Northern 8 2.9 5 62.5 1 20.0

Southern 68 5.3 50 73.5 3 6.0

Western 16 3.6 4 25.0 0 0.0

Vermont 0 0.0 0 0.0 0 0.0

THIRD CIRCUIT 104 5.1 57 54.8 23 40.4

Delaware 2 2.9 0 0.0 0 0.0

New Jersey 24 3.7 7 29.2 0 0.0

Pennsylvania

Eastern 56 9.8 43 76.8 23 53.5

Middle 9 3.0 3 33.3 0 0.0

Western 13 3.6 4 30.8 0 0.0

Virgin Islands 0 0.0 0 0.0 0 0.0

FOURTH CIRCUIT 198 4.4 137 69.2 13 9.5

Maryland 52 7.9 48 92.3 4 8.3

North Carolina

Eastern 23 4.2 20 87.0 0 0.0

Middle 15 3.6 13 86.7 0 0.0

Western 16 2.5 9 56.3 1 11.1

South Carolina 29 4.7 7 24.1 1 14.3

Virginia

Eastern 50 6.1 36 72.0 6 16.7

Western 9 3.0 3 33.3 1 33.3

West Virginia

Northern 3 1.0 1 33.3 0 0.0

Southern 1 0.5 0 0.0 0 0.0

Table A-1. Identity Theft Offenders and Convictions under 18 U.S.C. § 1028A By Circuit and District

Fiscal Year 2016

Offenders with Multiple 

Counts of Conviction of 

18 U.S.C. § 1028A

All Identity Theft

Offenders

Offenders with 

18 U.S.C. § 1028A

Convictions

Page 1 of 4
 47

Appendix

CIRCUIT

District Number Percent1 Number Percent2 Number Percent3

FIFTH CIRCUIT 254 1.7 82 32.3 7 8.5

Louisiana

Eastern 18 5.5 6 33.3 1 16.7

Middle 24 15.0 4 16.7 1 25.0

Western 15 7.2 2 13.3 0 0.0

Mississippi

Northern 4 2.5 3 75.0 0 0.0

Southern 17 7.5 6 35.3 1 16.7

Texas

Eastern 37 4.6 14 37.8 2 14.3

Northern 34 2.6 9 26.5 0 0.0

Southern 42 0.7 27 64.3 1 3.7

Western 63 1.1 11 17.5 1 9.1

SIXTH CIRCUIT 145 3.3 52 35.9 7 13.5

Kentucky

Eastern 16 3.7 8 50.0 0 0.0

Western 8 2.8 4 50.0 4 100.0

Michigan

Eastern 31 3.6 10 32.3 0 0.0

Western 14 4.4 4 28.6 0 0.0

Ohio

Northern 20 3.6 14 70.0 2 14.3

Southern 21 4.4 3 14.3 1 33.3

Tennessee

Eastern 16 2.2 5 31.3 0 0.0

Middle 9 4.4 1 11.1 0 0.0

Western 10 2.2 3 30.0 0 0.0

SEVENTH CIRCUIT 80 3.6 37 46.3 2 5.4

Illinois

Central 6 2.3 3 50.0 0 0.0

Northern 25 4.0 10 40.0 0 0.0

Southern 4 1.3 3 75.0 0 0.0

Indiana

Northern 19 6.7 9 47.4 1 11.1

Southern 4 1.2 3 75.0 1 33.3

Wisconsin

Eastern 17 5.7 8 47.1 0 0.0

Western 5 4.0 1 20.0 0 0.0

Table A-1 continued. Identity Theft Offenders and Convictions under 18 U.S.C. § 1028A By Circuit and District

Fiscal Year 2016

All Identity Theft

Offenders with Multiple 

Counts of Conviction of 

18 U.S.C. § 1028A

Offenders with 

18 U.S.C. § 1028A

Convictions
United States Sentencing Commission

Mandatory Minimum Penalties for Federal Identity Theft Offenses (2018)

 48

CIRCUIT

District Number Percent1 Number Percent2 Number Percent3

EIGHTH CIRCUIT 169 3.6 63 37.3 8 12.7

Arkansas

Eastern 1 0.3 1 100.0 0 0.0

Western 6 2.4 3 50.0 0 0.0

Iowa

Northern 4 1.2 4 100.0 0 0.0

Southern 4 1.2 0 0.0 0 0.0

Minnesota 43 8.9 27 62.8 1 3.7

Missouri

Eastern 58 7.8 22 37.9 7 31.8

Western 18 2.2 2 11.1 0 0.0

Nebraska 27 5.1 1 3.7 0 0.0

North Dakota 3 0.8 1 33.3 0 0.0

South Dakota 5 1.2 2 40.0 0 0.0

NINTH CIRCUIT 193 1.8 96 49.7 18 18.8

Alaska 3 1.8 3 100.0 2 66.7

Arizona 6 0.1 1 16.7 0 0.0

California

Central 62 7.2 20 32.3 4 20.0

Eastern 34 5.2 24 70.6 3 12.5

Northern 21 4.9 7 33.3 2 28.6

Southen 8 0.4 3 37.5 0 0.0

Guam 3 4.6 2 66.7 0 0.0

Hawaii 1 0.7 0 0.0 0 0.0

Idaho 12 4.7 6 50.0 0 0.0

Montana 5 1.6 5 100.0 3 60.0

Nevada 16 4.1 7 43.8 1 14.3

Northern Mariana Islands 0 0.0 0 0.0 0 0.0

Oregon 6 1.7 5 83.3 0 0.0

Washington

Eastern 2 0.7 1 50.0 0 0.0

Western 14 3.2 12 85.7 3 25.0

TENTH CIRCUIT 70 1.0 30 42.9 3 10.0

Colorado 12 2.6 2 16.7 0 0.0

Kansas 7 1.5 6 85.7 1 16.7

New Mexico 7 0.1 4 57.1 0 0.0

Oklahoma

Eastern 3 3.0 0 0.0 0 0.0

Northern 7 3.3 4 57.1 1 25.0

Western 19 6.4 2 10.5 0 0.0

Utah 13 2.1 11 84.6 1 9.1

Wyoming 2 0.9 1 50.0 0 0.0

Table A-1 continued. Identity Theft Offenders and Convictions under 18 U.S.C. § 1028A By Circuit and District 

Fiscal Year 2016

Offenders with Multiple 

Counts of Conviction of 

18 U.S.C. § 1028A

Offenders with 

18 U.S.C. § 1028A

Convictions

All Identity Theft

Offenders
 49

Appendix

CIRCUIT

District Number Percent1 Number Percent2 Number Percent3

ELEVENTH CIRCUIT 446 7.9 339 76.0 18 5.3

Alabama

Middle 22 14.6 9 40.9 0 0.0

Northern 18 5.4 11 61.1 2 18.2

Southern 1 0.3 0 0.0 0 0.0

Florida

Middle 71 5.1 45 63.4 2 4.4

Northern 30 12.4 27 90.0 2 7.4

Southern 239 11.2 203 84.9 9 4.4

Georgia

Middle 7 2.3 5 71.4 0 0.0

Northern 53 10.1 34 64.2 3 8.8

Southern 5 1.8 5 100.0 0 0.0

3

 The percent of offenders with multiple counts of conviction under 18 U.S.C. § 1028A is presented as a 

share of all identity theft offenders with at least one conviction under 18 U.S.C. § 1028A for each location.

Table A-1 continued. Identity Theft Offenders and Convictions under 18 U.S.C. § 1028A By Circuit and District 

Fiscal Year 2016

Offenders with Multiple 

Counts of Conviction of 

18 U.S.C. § 1028A

Offenders with 

18 U.S.C. § 1028A

Convictions

All Identity Theft

Offenders

1

 The percent of identity theft offenders is presented as a share of all federal offenders included in the 

study for each location.

2

 The percent of offenders with a conviction under 18 U.S.C. § 1028A is presented as a share of all identity 

theft offenders included in the study for each location.