Why the Federal Identity Theft Sentence Runs Consecutive, Not Concurrent

The Two Years That No Judge Can Take Away

Key Takeaways: A conviction under 18 U.S.C. § 1028A adds a flat two-year prison term that must run consecutively to the underlying felony sentence. Subsection (b)(1) bars probation, subsection (b)(2) bars concurrency with other terms, and subsection (b)(3) prevents judges from shortening the predicate sentence to offset the add-on. The only flexibility appears in subsection (b)(4), which lets multiple § 1028A counts run concurrently with each other. The add-on attaches only when identity misuse occurs without lawful authority and during and in relation to an enumerated felony. Because the two years are immovable, defense efforts typically focus on predicate counts and challenging § 1028A elements, including the narrowed reading of “uses” from Dubin v. United States (2023).

A conviction under 18 U.S.C. § 1028A adds a mandatory two-year consecutive prison term to any underlying felony sentence. Congress wrote the stacking rule directly into the statute, preventing federal judges in the Northern District of New York from running it concurrently, granting probation, or reducing the predicate count to soften the impact. For anyone facing a federal indictment with an aggravated identity theft count, this provision often matters more than other sentencing arguments combined.

If you are under investigation or charged, understanding your exposure is critical before any plea discussions. Hacker Murphy handles federal matters throughout upstate New York. Reach our Albany team at 518-274-5820 or contact us now for confidential consultation.

Where the Consecutive Rule Actually Comes From

The stacking requirement stems from legislation, not judicial custom. The Identity Theft Penalty Enhancement Act, signed July 15, 2004, added § 1028A to Chapter 47 of title 18. Previously, identity theft was addressed through fraud sentencing and guideline enhancements, giving judges more discretion.

Subsection (a) sets the add-on. Under 18 U.S.C. § 1028A(a)(1), anyone who, without lawful authority, knowingly transfers, possesses, or uses another’s means of identification during and in relation to an enumerated felony “shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” Under § 1028A(a)(2), terrorism predicates carry five years.

Subsection (b) mandates the consecutive result. Section 1028A(b)(1) prohibits probation, and § 1028A(b)(2) bars any concurrent imprisonment, subject only to the limited exception in subsection (b)(4). These provisions eliminate the tools judges normally use to moderate total sentences.

The Anti-Offset Clause Most Defendants Never Hear About

The statute closes the workaround. Under 18 U.S.C. § 1028A(b)(3), courts “shall not in any way reduce the term to be imposed for such crime so as to compensate for” the consecutive term. A judge cannot impose six months on the fraud count to offset the mandatory add-on, though predicate sentences are still set independently under ordinary sentencing factors.

One narrow flexibility exists. Under 18 U.S.C. § 1028A(b)(4), when multiple § 1028A counts are sentenced simultaneously, courts may direct those terms run concurrently with one another, exercised under guidelines and policy statements issued under 28 U.S.C. § 994. This carve-out does not allow § 1028A terms to run concurrently with predicate felony sentences.

💡 Pro Tip: When a plea includes multiple § 1028A counts, negotiate the concurrency question under subsection (b)(4) early. Whether add-on terms stack can change total exposure by years.

Understanding the Aggravated Identity Theft Mandatory Minimum in Real Numbers

The effect becomes clear comparing sentences with and without the add-on. Predicate sentences are determined by district judges applying advisory U.S. Sentencing Guidelines with statutory factors, leaving room for mitigation and variance arguments. The § 1028A count sits outside this framework because the term is statutorily fixed, not Guidelines-calculated.

Predicate exposure is often substantial before the add-on attaches. A recent Northern District of New York case shows how the pieces fit. In October 2025, a federal jury convicted a New Rochelle man of conspiracy to commit mail fraud, two counts of mail fraud, and one count of aggravated identity theft tied to fraudulent COVID-19 unemployment claims filed with the New York State Department of Labor using stolen identities. Each fraud count carried up to 20 years in prison, a fine of up to $250,000, and up to three years of supervised release. The U.S. Attorney’s Office for the Northern District of New York stated that the aggravated identity theft count carried a mandatory two-year term “to be imposed consecutively to any other term of imprisonment.” In February 2026, U.S. District Judge Mae A. D’Agostino sentenced him to 54 months in prison, three years of supervised release, and $182,227 in restitution.

Which Predicate Felonies Trigger the Add-On

Section 1028A doesn’t attach to every fraud case. The statute applies only when identity misuse occurs during and in relation to felonies enumerated in 18 U.S.C. § 1028A(c)(1)-(11). The list is broad but finite, and courts require more than incidental connection.

• Theft of public money, bank embezzlement, and theft from employee benefit plans under 18 U.S.C. §§ 641, 656, and 664

• Mail, bank, and wire fraud under Chapter 63

• Nationality, citizenship, passport and visa offenses under Chapters 69 and 75

• False statements for financial institution customer information under 15 U.S.C. § 6823

• Social Security Act offenses including sections 208, 811, 1107(b), 1128B(a), and 1632

The pairing is often visible in the indictment. Total exposure generally equals the predicate sentence plus 24 months.

How the Federal Rule Differs From New York’s Approach

New York grades identity theft by degree; federal law imposes a flat add-on. State law recognizes identity theft in first and second degrees under Penal Law §§ 190.80 and 190.79, plus unlawful possession of personal identification information in first and second degrees under §§ 190.83 and 190.82, each with distinct sentencing ranges. Federal aggravated identity theft produces a fixed consecutive term rather than a graded range.

Parallel State Exposure Is Real

State prosecutors have broad venue authority. Under CPL § 20.40(1), identity theft charges may be prosecuted in any county where part of the offense occurred, where the victim resided, or where the person whose information was used resided. These venue rules, with wiretap eligibility under CPL § 700.05(8)(s), mean Albany County residents face multi-directional investigation risk.

Why the Guidelines Still Matter

Discretion has relocated to predicate counts. Loss calculation, victim count, sophisticated means, role, and acceptance of responsibility drive guideline ranges on underlying felonies, and amendments like the 2023 federal sentencing changes may shift calculations. Guideline commentary prevents applying identity theft enhancements on predicate counts when they would duplicate § 1028A conduct. Because the two-year term is immovable, mitigation concentrates where outcomes remain flexible.

Where These Cases Are Won or Narrowed

Challenges often target elements rather than sentences. The government must prove the means of identification belonged to an actual person and the defendant knew it, that the defendant lacked lawful authority, and that use occurred during and in relation to a qualifying predicate. The Supreme Court held in Dubin v. United States (2023) that a defendant “uses” another’s means of identification under § 1028A only when that identification is at the crux of what makes the underlying offense criminal, not merely ancillary. Attribution issues, shared devices, forensic gaps, and absence of enumerated predicates are fact-dependent avenues that may support dismissal or removal in negotiation.

Frequently Asked Questions

1. Can a judge ever run a § 1028A term concurrently with the fraud sentence?

Generally no. Section 1028A(b)(2) bars concurrency with other imprisonment terms, and the only exception under § 1028A(b)(4) applies to multiple § 1028A counts sentenced simultaneously.

2. Does probation or a suspended sentence remain available?

No. Section 1028A(b)(1) prohibits probation, and federal law no longer provides suspended sentences, making the aggravated identity theft mandatory minimum a critical plea strategy driver.

3. Can the two-year term be reduced through cooperation?

Sentences below statutory minimums generally require government motions under 18 U.S.C. § 3553(e) or Federal Rule of Criminal Procedure 35(b). Outcomes are fact-specific and never guaranteed. Courts cannot reduce terms independently for mitigating circumstances.

4. Is the add-on always two years?

Two years applies in most cases, but 18 U.S.C. § 1028A(a)(2) sets five years when the predicate is an enumerated terrorism felony under 18 U.S.C. § 2332b(g)(5)(B).

5. Can New York prosecute the same conduct after a federal case?

Overlapping exposure is possible under dual sovereignty, but New York’s statutory double jeopardy provisions in CPL §§ 40.20 and 40.30 are broader than federal constitutional rules and often bar state prosecution based on the same criminal transaction. Whether successive prosecution proceeds depends on specific facts, charges, and prosecutorial discretion.

What to Do Next If a § 1028A Count Appears on Your Indictment

Read the indictment for structure, not just allegations. Identify the predicate count, confirm it appears on the § 1028A(c) list, and count add-on charges. Preserve devices and records without deleting anything, decline agent discussions without counsel, and avoid contact with anyone named in the case. Because the two-year term is statutorily fixed, the window to influence total exposure may be widest before charging decisions solidify.

The consecutive structure of § 1028A is not judicial preference, it’s written into subsections (b)(1) through (b)(3), reinforced by the anti-offset clause, and applied across federal courts. Understanding this architecture early allows defense to focus where discretion exists.

The criminal defense team at Hacker Murphy is available to review your exposure. Call 518-274-5820 or schedule a confidential consultation today.

Disclaimer: This content is for informational purposes only and is not legal advice. Every case is unique, and results may vary. Consult an attorney about your specific circumstances.

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