The Exception to Mandatory Sentencing in Aggravated Identity Theft Cases

March 1, 2024

Aggravated identity theft, as outlined under 18 USC 1028A, carries a stringent penalty that includes a mandatory two-year consecutive prison sentence. This sentence is in addition to any punishment handed down for the underlying crime associated with identity theft. This law underscores the seriousness with which the federal system treats identity theft, especially when it’s used to facilitate or commit further crimes. However, a lesser-known provision offers a potential exception to this daunting mandatory minimum, providing a critical avenue for leniency under specific circumstances.

Understanding the Mandatory Sentence for Aggravated Identity Theft

Aggravated identity theft is a federal offense that involves knowingly transferring, possessing, or using, without lawful authority, a means of identification of another person during the commission of certain felony offenses. The law is clear: upon conviction, defendants are subject to an additional two-year prison sentence that must run consecutively to any other sentence imposed. This mandatory consecutive sentencing emphasizes the added severity of using another’s identity in committing crimes, aiming to deter such conduct by imposing strict penalties.

The Exception: 18 USC 3553(e)

Despite the stringent rules surrounding the mandatory sentencing for aggravated identity theft, there exists a notable exception under 18 USC 3553(e). This section allows a judge to impose a sentence below the statutory minimum upon motion by the government. Typically, this departure from the mandatory minimum is agreed upon in the plea agreement between the defendant and the prosecution. It’s a powerful tool that can significantly alter the sentencing landscape for those facing convictions under 18 USC 1028A.

The Role of Government Motion and Plea Agreements

The exception under 18 USC 3553(e) is contingent upon a motion by the government, highlighting the prosecutorial discretion in such matters. In practice, this often means that the possibility of avoiding the additional two-year sentence for aggravated identity theft is negotiated as part of a plea agreement. Defendants may provide valuable cooperation to the government or plead guilty to certain charges in exchange for the government’s willingness to file a motion for a reduced sentence. This cooperative approach not only aids the prosecution in securing convictions for other offenses or defendants but also provides a pathway for reduced sentencing for cooperative defendants.

The Significance of the Exception

The exception to the mandatory minimum for aggravated identity theft serves several important functions. Firstly, it provides an incentive for defendants to cooperate with law enforcement and the prosecution, potentially aiding in the resolution of broader criminal activities. Secondly, it introduces a degree of flexibility into the sentencing process, allowing judges to consider the defendant’s role, cooperation, and other mitigating factors in determining an appropriate sentence. Lastly, it underscores the importance of effective legal representation in negotiating plea agreements that can significantly impact the severity of a defendant’s sentence.


While the mandatory two-year consecutive sentence for aggravated identity theft underscores the seriousness with which the federal system views this crime, the exception provided under 18 USC 3553(e) introduces a crucial mechanism for leniency under specific conditions. This exception highlights the importance of negotiation and cooperation in the federal criminal justice system, providing defendants with a potential pathway to avoid additional incarceration time. It serves as a reminder of the complexities of federal sentencing laws and the value of informed legal counsel in navigating these waters.

If you have been charged or are under investigation for a crime, then contact the Law Offices of John D. Rogers today to speak with an experienced Orange County federal crimes attorney.

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