Identity Theft vs. Aggravated Identity Theft: The Real Difference

Q: What makes identity theft "aggravated"?

Aggravated identity theft, under 18 U.S.C. Section 1028A, requires someone to knowingly use another real person's identifying information while committing a separate federal felony, like wire fraud or bank fraud. Regular identity theft charges under Section 1028 don't require that second felony.

A detective calls with an update on your case. The word "aggravated" comes up. You didn't ask for a law degree today, but suddenly you need one.

Here's the plain-English version of what that word actually changes, and what it means for you as the person this happened to.

Quick Answer

Identity theft, under 18 U.S.C. § 1028, covers producing, transferring, possessing, or using someone's identifying information unlawfully. Penalties range from 1 to 30 years depending on the conduct, and judges have discretion within that range.

Aggravated identity theft, under 18 U.S.C. § 1028A, is a separate charge that only applies when someone uses your identity while committing another federal felony. It adds a mandatory 2-year prison sentence that a judge cannot reduce, and it must run consecutively, not at the same time as the other sentence.

⚠ Check This First: Does Federal Law Even Apply to Your Case?

Everything below describes federal law. Most identity theft cases are actually prosecuted at the state level, under your state's own identity theft statute, not these federal charges. If your case involves local police and a county prosecutor, your state's law governs, not what's on this page.

Federal charges like these typically only appear when federal agents, an interstate scheme, or a federal felony like wire fraud or bank fraud is involved. If you're not sure which applies, ask the officer or prosecutor's office directly which system your case is in.

Key Takeaways

"Aggravated" isn't just a scarier word. It's a distinct charge requiring a separate underlying felony.
The 2-year sentence enhancement is mandatory and consecutive. A judge has zero discretion to shorten or waive it.
Multiple victims can mean multiple mandatory 2-year terms stacked on top of each other.

Jump to: Identity Theft (§ 1028) · Aggravated Identity Theft (§ 1028A) · Side-by-Side · Why It Matters to You · What to Do as a Victim · FAQ

What Regular Identity Theft Actually Covers

18 U.S.C. § 1028 is the broad federal statute. It criminalizes producing, transferring, possessing, or using false identification documents, or someone else's real identifying information, without authorization.

The penalties vary a lot depending on what actually happened. Simple possession might carry up to a year. Producing or trafficking in fake IDs can reach 15 years. Cases tied to drug trafficking or violence can reach 20, and terrorism-connected cases up to 30.

The key point: under this statute alone, a judge has real discretion. The sentence can move up or down within that range based on the specifics of the case.

What Makes It "Aggravated"

18 U.S.C. § 1028A only applies on top of another federal felony. It's not a standalone charge — it requires the government to prove three things.

A predicate felony was committed. This means one of dozens of specific federal crimes: wire fraud, bank fraud, mail fraud, healthcare fraud, immigration violations, and more.
The identity theft happened "during and in relation to" that felony. It has to be central to the crime, not just coincidentally connected.
The person knew the information belonged to a real, actual person. This came from a 2009 Supreme Court case, Flores-Figueroa v. United States, and it's a real, litigated defense.

⚠ The Part That Surprises People

The 2-year sentence isn't optional once it's charged and proven. It can't run at the same time as the other sentence. It can't be reduced for good behavior. A judge has no discretion here at all.

Side-by-Side: What Actually Differs

Factor	Identity Theft (§ 1028)	Aggravated Identity Theft (§ 1028A)
Standalone charge?	Yes	No — requires a separate predicate felony
Sentence range	1 to 30 years, judge's discretion	Mandatory 2 years, no discretion
Runs concurrently?	Can run concurrently with other counts	Must run consecutively, always
Multiple victims?	Factored into sentencing discretion	Each victim can mean another mandatory 2-year term

Why This Distinction Actually Matters to You

If your case involves an aggravated identity theft charge, it usually means investigators found a bigger underlying crime. Your stolen information wasn't the whole scheme. It was one piece of something larger, like a fraud ring or a multi-victim scam.

That's not necessarily worse news for you personally. It does mean your case is likely more complex, may take longer, and may involve federal prosecutors rather than local police alone.

Whatever level your case is at, the free first move is the same: confirm your report is filed at IdentityTheft.gov if it isn't already. That record exists independent of the criminal case and matters for your own recovery either way.

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What to Do as a Victim, Regardless of the Charge

Report it at IdentityTheft.gov if you haven't already. This creates an official record independent of any criminal case.
Ask the prosecutor's office about a victim liaison. Federal cases often have a dedicated contact who can update you on restitution and case status.
Freeze your credit at all three bureaus if you haven't. The criminal case moving forward doesn't undo any damage already done to your accounts.
Keep records of every dollar lost and hour spent. Restitution isn't automatic, and documentation helps if it's ordered.

Worth knowing: restitution depends on the defendant's actual ability to pay, not just the amount lost. Many victims never recover the full amount, even after a conviction.

Worth knowing: the Identity Theft Resource Center, a nonprofit that supports victims through exactly this process, notes that documentation and early reporting are what most often determine whether restitution is even possible later.

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Frequently Asked Questions

What makes identity theft "aggravated"?

Aggravated identity theft, under 18 U.S.C. § 1028A, requires someone to knowingly use another real person's identifying information while committing a separate federal felony, like wire fraud or bank fraud. Regular identity theft charges under Section 1028 don't require that second felony.

Tip: If you're unsure which charge applies to your case, the prosecutor's office or victim liaison can tell you directly.

Does aggravated identity theft mean my case is more serious?

It usually signals the person who stole your identity is facing a separate, underlying federal felony, not just the identity theft itself. The aggravated charge adds a mandatory 2-year prison sentence on top of whatever sentence that other felony carries.

Real scenario: Someone's stolen SSN turns out to be one of a dozen used in a wire fraud scheme. What looked like a single incident becomes a much larger federal case.

Can someone get aggravated identity theft charges dropped?

Yes, in some cases. The Supreme Court's 2009 Flores-Figueroa decision requires prosecutors to prove the person knew the identifying information belonged to an actual real person, not just that they used it.

Stat: That knowledge requirement is a real, litigated defense, not a technicality. Cases have been dismissed on exactly this point.

Will I get restitution either way?

Restitution isn't guaranteed under either charge and depends on the case, the defendant's ability to pay, and the judge's order. It's separate from the prison sentence.

Red flag: Anyone promising you a guaranteed restitution amount before a case concludes is telling you something no prosecutor could actually promise.

Aaron Bryce

Aaron Bryce researches consumer credit, fraud prevention, and identity protection. He has spent over a decade hands-on testing identity theft protection and credit monitoring services, cutting through marketing claims to show readers what actually works. Not a licensed attorney or financial advisor; this guide is education only.

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