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June 8, 2023

How many of the many thousands convicted of federal aggravated identity theft might now have Dubin claims?

As reported in this prior post, the US Supreme Court this morning rejected the Fifth Circuit's (and the Government's) very broad reading of aggravated identity theft under 18 U.S.C. § 1028A(a)(1). The Court explained in Dubin v. US, No. 22-10 (S. Ct. June 8, 2023) (available here), that the two-year mandatory sentence of 1028A only applies "when the defendant’s misuse of another person’s means of identification is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature."  For a variety of reasons, I hope federal prosecutors have in the past mostly used the hammer of the two-year mandatory prison term of 1028A in "crux" cases rather than "ancillary" cases (and I sense some other circuits have sometimes limited cases in this way).  But the Dubin case and others cited therein certainly suggest that more than a few persons in the past have been wrongly subject to 1028A liability in "ancillary" cases.

Helpfully, the US Sentencing Commission has one of its great "Quick Facts" publications focused specifically on "Section 1028A Aggravated Identity Theft Offenses."  This July 2022 version reports on the total number of 18 U.S.C. § 1028A offenders sentenced from Fiscal Year 2017 through 2021.  Interestingly, in the three pre-pandemic years, there were over 1000 annual total 1028A offenders sentenced in federal courts; but in FY 2020 and thereafter the yearly numbers clocked in at just over 600.  The typical sentence for most of these offenders across a number of years seems to be in the four- to five-year range.  Consequently, using very "back of the envelop" math, I would guestimate there could be as many as a couple thousand 1028A offenders who are currently imprisoned and maybe a few thousand more currently serving terms of supervised release.  I remain eager to believe and hope that most of these folks were soundly convicted in "crux" cases, but surely many may be eager to claim in court that their convictions and added prison terms were wrongly imposed in "ancillary" cases.

Offenders now looking to pursue what might be called "Dubin claims" could, of course, face procedural barriers of all sorts.  But the still open-ended sentence reduction authority of 3582 might be one ready means for at least some (over-sentenced) prisoners to secure relief.  And there are likely more than a few currently pending federal prosecutions that may get a jolt of uncertainty with Dubin now requiring crux/ancillary distinctions in the application of 18 U.S.C. § 1028A(a)(1).  (But, critically, Justice Gorsuch's concurring opinion warns that we ought not try to sort any of this out while driving to summer vacation.  As he sternly explains: "Criminal statutes are not games to be played in the car on a crosscountry road trip.") 

June 8, 2023 at 05:04 PM | Permalink


There are two types of potential Dubin claims: 1) those who actually received the enhancement; and 2) those who pled guilty to an unenhanced charge to avoid the enhancement. At least from my experience in the state system, courts are only likely to look with favor on the first type of claim (if raised in a timely fashion) on the theory that there was insufficient evidence (or insufficient factual basis in the case of a plea) or that the enhancement language failed to state an offense. The second one is harder because it almost has to be phrased as ineffective assistance and, prior to the decision, competent counsel would have had to advise the client that there was a chance that the courts might find that they were subject to an enhancement.

Posted by: tmm | Jun 8, 2023 5:57:58 PM

Would the "no longer a crime" exception to habeas get it done?

Posted by: federalist | Jun 13, 2023 5:26:30 PM

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