SCOTUS takes up case to address reach of federal two-year mandatory minimum added prison term for identity theft

I missed late yesterday that the Supreme Court issued a tiny order list on Thursday that granted cert on a single new case.  This news is exciting for those of us interest in seeing a bit more criminal action on the SCOTUS docket, and this SCOTUSblog posting has the details:

The Supreme Court announced on Thursday afternoon that it will weigh in on what it means to commit identity theft. After holding their private conference a day early because Friday is a federal holiday, the justices released a one-sentence order list that added one new case to their merits docket for the 2022-23 term: Dubin v. United States.

The defendant in the case is David Dubin, who was convicted of Medicaid fraud.  As the dispute comes to the Supreme Court, Dubin is challenging a separate conviction under a federal law that makes it a crime to use another person’s identity in the process of committing another crime.  Federal prosecutors contend that Dubin’s use of his patient’s name on a false Medicaid claim violated the statute, adding an extra two years to his one-year sentence for fraud.

A three-judge panel of the U.S. Court of Appeals for the 5th Circuit upheld Dubin’s conviction and sentence, and on rehearing a deeply divided full court affirmed that decision. Dubin appealed to the justices in June, and they agreed on Thursday to take up his case, which will likely be argued sometime early next year.

Here is how the question in the case is presented by the defendant in his cert petition:

The federal aggravated identity theft statute provides: “Whoever, during and in relation to any felony violation enumerated [elsewhere in the statute], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person, shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” 18 U.S.C. § 1028A(a)(1).

The question presented is whether a person commits aggravated identity theft any time he mentions or otherwise recites someone else’s name while committing a predicate offense.