Minimum Sentences for Identity Theft, 2025 Federal and State Breakdown

Identity theft remains one of the fastest-growing financial crimes in the U.S., and its penalties vary significantly based on whether the offense is charged as basic identity theft under 18 U.S.C. § 1028 or aggravated identity theft under 18 U.S.C. § 1028A. Understanding the minimum sentencing rules—both federally and at the state level—is vital for defendants, attorneys, policymakers, and victims.

Federal Sentencing: No Floor vs. Mandatory Minimum

1. Basic Identity Theft – 18 U.S.C. § 1028(a)(7)

• Mandatory Minimum: None
  
• Maximum Penalty: Up to 15 years, fines up to $250,000, and asset forfeiture
  
• Common Offenses: Possessing or using false identification, stolen data, or counterfeit documents

Although no mandatory floor exists, the U.S. Sentencing Guidelines (USSG § 2B1.1) determine punishment based on:

• Loss amount
  
• Number of victims
  
• Role in the offense

Judges retain discretion to impose probation, home confinement, or short jail terms, especially for first-time offenders and nonviolent crimes.

2. Aggravated Identity Theft – 18 U.S.C. § 1028A

• Mandatory Minimum: 2 years imprisonment, consecutive to any other sentence
• Terrorism-Linked Cases: 5-year minimum if the identity theft is linked to terrorism under 18 U.S.C. § 2332b
  
• No Downward Departures: Courts must impose at least the minimum even if guideline levels fall below that

This statute often applies when identity theft is used to:

• Commit bank fraud, tax fraud, or immigration violations
  
• Steal Social Security numbers to file false tax returns

53.4% of federal identity theft prosecutions now involve aggravated charges, and 98.1% of those convicted receive prison time—averaging 51 months.

Sentencing Guidelines vs. Statutory Floors

The U.S. Sentencing Guidelines assign base offense levels with potential enhancements based on:

• Number of stolen IDs
  
• Use of sophisticated means
  
• Impact on vulnerable victims (e.g., children, seniors)

But where § 1028A applies, judges must impose the 2- or 5-year floor—even if the computed guideline range is lower.

Related article: 7 Types of Identity Theft Penalties

State-Level Sentencing Minimums (2025 Snapshot)

State penalties range widely, with many states offering diversion programs or probation for low-level, first-time offenders. However, others enforce strict minimums based on factors like financial harm, repeat offenses, or victim vulnerability.

State	Mandatory Minimum	Maximum Term	Key Criteria
Florida	None for 3rd-degree; 1 yr (2nd-deg); 5 yrs (1st-deg)	5 yrs, 15 yrs, 30 yrs	Based on loss amount and prior history
California	None for most offenses; 6 months jail possible	16 months to 3 years	Minor losses, often probation eligible
Texas	180 days jail (state jail felony)	2–20 years (up to 1st degree)	Based on fraud severity
New Jersey	3 years (2nd-degree); 5 years (1st-degree)	10 to 20 years	Elevated penalties for higher-degree felonies

➡ 37 states still allow no mandatory minimum for first-time or low-loss crimes, making probation or deferred adjudication common.

Mandatory Minimum Triggers & Enhancements

Certain factors elevate identity theft cases, triggering statutory floors or enhanced penalties:

• Aggravated Charges (§ 1028A): Always require a 2-year sentence
  
• Terrorism Connection: 5-year minimum under § 1028A
  
• Repeat Offenders: Up to 5 additional years under § 1028(b)
  
• Victim Type: Targeting seniors or children often results in enhanced sentences

Avoiding or Reducing Minimum Sentences

Though federal floors for aggravated cases are fixed, basic cases offer flexibility. Defendants may avoid or reduce prison time by:

• Plea Bargains: Cooperating with prosecutors can lead to reduced charges or recommendations for leniency
  
• Restitution Agreements: Paying back victims may convert jail to probation in some states
  
• Diversion Programs: Especially in California and some federal districts, first-time offenders may enter pretrial diversion
  
• Mental Health or Coercion Claims: Mitigating circumstances like mental illness can support reduced sentencing
  
• Challenging Evidence: Defendants can seek suppression of evidence if obtained through illegal searches

Financial Penalties & Restitution

• Fines: No mandatory minimum; up to $250,000 per individual federally
  
• Restitution: Required under the Mandatory Victims Restitution Act (18 U.S.C. § 3663A) for all quantifiable losses, regardless of sentence length
  
• Collateral Consequences: Deportation (for non-citizens), loss of professional licenses, and credit ruin are common even in non-custodial cases

Juvenile Identity Theft Cases

Federal and state systems favor rehabilitation over incarceration for minors. Common outcomes include:

• Probation
  
• Community service
  
• Counseling
  
• Restitution

Mandatory minimums rarely apply in juvenile cases unless tried as adults.

2025 Sentencing Data & Trends

• 53.4% of identity theft cases involve § 1028A aggravated charges
  
• 98.1% of § 1028A defendants receive mandatory prison time
  
• 6.2% avoid incarceration through substantial assistance
  
• IRS-related identity theft cases can take 506+ days to resolve, often causing prolonged victim hardship

Reform & Policy Debate

Critics argue that rigid mandatory minimums for nonviolent identity theft can lead to disproportionate sentences. Reform efforts include:

• Allowing judicial discretion for mitigating factors
  
• Raising financial thresholds to trigger federal prosecution
  
• Rewarding restitution compliance with sentence reductions

Ongoing legislative proposals aim to better align penalties with harm caused and culpability of the offender.

Key Takeaways

“While basic identity theft may carry no mandatory minimum, aggravated federal cases under § 1028A guarantee at least 2 years in prison—and 5 years if linked to terrorism. State penalties differ widely, but many offer diversion or probation for nonviolent, first-time offenses. Strategic plea deals, restitution, and evidence challenges can significantly reduce sentencing risks. However, collateral damage to victims often outlasts the punishment.”

— Synthesized from DOJ, FTC, U.S. Sentencing Commission, and Congressional Research Service guidelines

Sources

• Justice Department – Identity Theft Statutes
  
• U.S. Sentencing Commission Guidelines Manual
  
• Congressional Research Service – Identity Theft Laws
  
• Legal Information Institute – 18 U.S.C. §§ 1028, 1028A
  
• National Conference of State Legislatures (NCSL)