Published on: Tuesday, October 23, 2018

In September, the United States Sentencing Commission published a report titled Mandatory Minimum Penalties for Federal Identity Theft Offenses. See also Report at a Glance; Figures & Tables. As the title suggests, this report examines the application of mandatory minimum penalties specific to identity theft cases, such as 18 U.S.C. § 1028A, which provides a two-year mandatory minimum penalty for aggravated identity theft.   General identity theft under § 1028 does not have a minimum mandatory.   Here are some highlights from the report:

  • The average sentence for identity theft offenders by conviction and relief status in FY2016:
    • 22 months: not convicted of § 1028A
    • 51 months: convicted of § 1028A
    • 32 months: relieved of § 1028A
    • 54 months: no relief, subject to mand min
  • Just 1.6% of all federal offenders were convicted under 18 U.S.C. § 1028A, the aggravated identity theft statute carrying a two-year mandatory minimum penalty. However, these offenders comprised slightly more than half of all federal identity theft offenders (53.4%, N=978). Just 1.6% of all federal offenders were convicted
  • Aggravated identity theft offenders accounted for a small (7.2%) but growing proportion of all offenders facing a mandatory minimum penalty. The percentage of federal identity theft offenders convicted of aggravated identity theft has more than doubled over the last decade (from 21.9% in fiscal year 2006 to 53.4% in fiscal year 2016).
  • The Eleventh Circuit accounted for about one-third of all aggravated identity theft cases in fiscal year 2016 (34.7%), with the Southern District of Florida alone accounting for 20.8% of such cases.
  • Consistent with the statutory requirements of section 1028A (that the offense was committed during and in relation to any enumerated felony violation), the majority of offenders (88.7%) convicted under this statute were also convicted of another offense.
  • In the remaining 11.3% of section 1028A offenses, charging and plea decisions appeared to result in less than half the average sentence length imposed on other section 1028A offenders facing more than one count of conviction (22 months as compared to 54 months).

The Training Division provides resources on defending an identity theft case in federal court on the password protected side of www.fd.org.