What Is Misdemeanor Identity Theft? Is It a Felony? Criminal Charges, Penalties & Sentencing

Misdemeanor identity theft is not a felony—it’s a lower-level criminal offense involving unauthorized use of personal information below felony thresholds, typically punishable by up to one year in jail and fines under $1,000. Felony identity theft involves more serious circumstances with higher dollar amounts (often $500-$1,000+), multiple victims, or aggravating factors, carrying penalties from 2 to 30 years in federal prison. The distinction depends on prosecutorial factors including financial loss amounts, victim count, prior convictions, and whether charges are filed at state or federal level.

The classification matters immediately because felony convictions carry harsher penalties including significant prison time, higher fines, and mandatory restitution, while misdemeanor charges may result in probation or shorter jail sentences. Understanding which classification applies determines your potential criminal liability, defense strategy, and long-term consequences including employment prospects and civil rights restrictions.

Understanding Misdemeanor Identity Theft: Legal Definition & Scope

Misdemeanor identity theft occurs when someone unlawfully obtains and uses another person’s identifying information—name, social security number, credit card details, date of birth—for fraudulent purposes that don’t meet felony thresholds.

Depending on location and case nature, identity theft can be treated as either a misdemeanor or felony, with first-time offenders in states like Illinois facing misdemeanor charges initially.

Key characteristics distinguishing misdemeanor identity theft:

• Financial Loss: Typically involves stolen amounts under $500-$1,000 depending on state
• Victim Count: Generally affects one or two individuals
• Intent: Must prove defendant knowingly used information fraudulently
• Circumstances: Lacks aggravating factors like targeting vulnerable victims

Some states treat identity theft like other theft laws, imposing increasing penalties based on monetary loss suffered by the victim—conviction for misdemeanor if losses were under $500, with increasing felony penalties for losses above $500.

Felony Identity Theft: When Charges Escalate

Felony identity theft represents more serious unauthorized use involving substantial harm, multiple victims, or circumstances warranting enhanced punishment.

If the stolen money amount through fraud is substantial or multiple victims were affected by identity theft, charges will likely be elevated to felony level.

Federal law defines felony identity theft under 18 U.S.C. § 1028, which criminalizes:

• Knowingly producing false identification documents
• Transferring identification documents knowing they were stolen
• Possessing five or more false identification documents
• Using another’s means of identification to commit federal felonies

In Florida, if personal identifying information of 20 or more individuals was involved, or identity theft resulted in financial gain of $50,000 or more, the offense would be bumped up to first-degree felony.

Key Differences: Misdemeanor vs. Felony Identity Theft Classifications

Virginia law states violations resulting in financial loss of $1,000 or more shall be punishable as Class 6 felony, with any second or subsequent conviction also punishable as Class 6 felony.

Criminal Charges Available for Misdemeanor Identity Theft

State prosecutors typically charge misdemeanor identity theft under state criminal statutes targeting lower-level fraud:

Common Misdemeanor Charges:

• Petty theft/petit larceny (stolen property value below threshold)
• Fraudulent use of personal information
• Unauthorized access to financial accounts
• First-time identity theft offenses

In Illinois, for example, first-time offenders face misdemeanor charges, giving defendants opportunities for diversion programs, probation, or reduced sentences.

Class A Misdemeanor Identity Theft typically involves:

• Using someone’s credit card without authorization for purchases under $500
• Creating fake ID with another person’s information (first offense)
• Accessing bank accounts fraudulently resulting in minimal loss

These charges preserve defendants’ ability to avoid felony convictions while still holding them accountable for criminal behavior.

Federal and State Felony Identity Theft Charges

Federal prosecutors use multiple statutes to charge felony identity theft:

18 U.S.C. § 1028 (Basic Identity Theft): Punishment includes fine and imprisonment for not more than 15 years if offense involves production or transfer of identification document, authentication feature, or false identification document.

18 U.S.C. § 1028A (Aggravated Identity Theft): Anyone who knowingly transfers, possesses, or uses means of identification of somebody shall, in addition to felony penalties, be sentenced to imprisonment of 2 years, or five years for terrorism—sentences run consecutively to underlying felonies.

State Felony Charges Vary:

• Florida: Third-degree felony (up to 5 years), second-degree felony (up to 15 years), first-degree felony (up to 30 years)
• Virginia: Class 6 felony ($1,000+ loss), Class 5 felony (5+ victims), Class 4 felony (50+ victims)
• California: 16 months to 3 years state prison, fines up to $10,000

Florida identity theft is generally charged as third-degree felony punishable by up to five years in prison and up to $5,000 fine, with aggravating circumstances resulting in more severe penalties.

Criminal Penalties and Sentencing Ranges: Misdemeanor Identity Theft

Conviction for misdemeanor offense can lead to up to a year in jail, while felony sentences can result in several years or more in prison.

Typical Misdemeanor Penalties:

• Incarceration: Up to 1 year county jail (often suspended with probation)
• Fines: $1,000-$5,000 depending on state
• Restitution: Mandatory payment to victims for actual losses
• Probation: 1-3 years supervised probation
• Community Service: 50-200 hours
• Counseling: Financial responsibility or theft-deterrence programs

First-time offenders frequently receive:

• Deferred adjudication (charges dismissed after completing probation)
• Diversion programs focusing on rehabilitation
• Suspended sentences with strict compliance requirements

A judge might allow probation for first-time offender who agrees to pay restitution, attend counseling, and follow other conditions ordered by judge.

Federal and State Sentencing Guidelines: Felony Identity Theft

Federal sentencing has increased dramatically: Average sentence imposed increased from 44 months in fiscal year 2020 to 54 months in fiscal year 2024.

Federal Sentencing Breakdown:

Basic Identity Theft (18 U.S.C. § 1028):

• Standard offenses: Up to 15 years federal prison
• Drug trafficking/violent crime connection: Up to 20 years
• Terrorism-related: Up to 30 years
• Fines: Varies based on offense severity and loss amounts

Aggravated Identity Theft (18 U.S.C. § 1028A): Offenses carry mandatory minimum penalty of 24 months, with punishment imposed running consecutively to any other term of imprisonment.

Average sentence for individuals convicted under section 1028A was 54 months; 99.0% were sentenced to prison. Average sentence for individuals convicted only under section 1028A was 25 months; average sentence for individuals convicted of both section 1028A offense and another offense was 57 months.

State Felony Sentencing:

• Third-Degree Felony: 2-5 years prison, $5,000-$10,000 fines
• Second-Degree Felony: 5-15 years prison, $10,000-$25,000 fines
• First-Degree Felony: 10-30 years prison, up to $250,000 fines

If prosecutor proves you made $100,000 or more or used personal information of 30 or more people, it is first-degree felony with mandatory minimum 10-year sentence.

Prosecutorial Factors Determining Misdemeanor vs. Felony Classification

Prosecutors evaluate multiple factors when deciding charges:

1. Financial Loss Amount Most critical factor—states set specific thresholds:

• Texas and Wisconsin have highest thresholds where theft becomes felony if property value exceeds $2,500. New Jersey has much lower limit where stealing goods worth just over $200 can result in felony charge
• Florida law defines felony theft as any stolen property or services valued at $750 or more
• Virginia violations resulting in financial loss of $1,000 or more shall be punishable as Class 6 felony

2. Number of Victims Multiple victims escalate charges significantly:

• Single victim with minimal loss: Likely misdemeanor
• 5 or more persons’ identifying information obtained, recorded, or accessed in same transaction: Class 5 felony in Virginia
• 20 or more individuals’ personal identifying information involved: First-degree felony in Florida

3. Defendant’s Criminal History Prior convictions dramatically affect charging:

• First-time offender: Prosecutors may offer misdemeanor plea
• Any second or subsequent identity theft conviction shall be punishable as Class 6 felony in Virginia
• Three or more theft-related convictions: Often charged as felony under habitual offender statutes

4. Vulnerable Victims Many states impose harsher penalties if defendant targeted vulnerable victim, such as child, elderly person, or someone with mental or physical impairment, or if defendant targeted numerous victims or deceased victims.

5. Method and Sophistication

• Simple credit card theft: Possible misdemeanor
• Conspirators obtained stolen personal identifying information from dark web, including names, home addresses, social security numbers, dates of birth, and credit scores from at least nine states—prosecuted as federal felony
• Document production equipment: Federal felony charges

6. Connection to Other Crimes Identity theft aimed at stealing public funds or prescription drugs might carry felony penalties. If thief sells someone’s identifying information to another party, this could lead to felony charges.

Who Prosecutes Identity Theft: State vs. Federal Jurisdiction

State Prosecution: Most identity theft cases remain in state court when:

• Offense occurs entirely within single state
• Financial losses are relatively modest
• No federal interests involved
• Victims and defendant reside in same state

State prosecutors file charges under state criminal codes with penalties varying significantly by jurisdiction.

Federal Prosecution: Federal crime is identity theft under 18 U.S.C § 1028 when it involves producing or transferring identification, counterfeiting, or having equipment to produce documents.

Federal prosecutors take jurisdiction when:

• Offense crosses state lines (interstate commerce)
• Substantial financial losses ($100,000+)
• Multiple victims across different states
• Organized criminal enterprises involved
• Connection to terrorism, immigration fraud, or federal benefits fraud

Between approximately January 2020 and October 2020, defendants and others opened financial accounts using stolen personal identifying information from hundreds of victims and used these accounts to receive and launder proceeds of various frauds, including fraudulently obtained federal income tax refunds, economic impact payments, SBA loans, and unemployment benefits from at least 21 states, causing loss of at least $6 million in government funds.

Statute of Limitations: Misdemeanor vs. Felony Charges

Time limits for filing charges vary dramatically:

Misdemeanor Identity Theft:

• Most states: 1-2 years from offense date
• Some jurisdictions: 3 years for fraud-related misdemeanors
• Clock starts when offense discovered (not when committed)

Felony Identity Theft:

• State felonies: 3-5 years typically
• Statute of limitations for federal identity theft is generally five years, meaning prosecution has five years from date of alleged crime to file charges
• Complex schemes: Clock may start when fraud discovered rather than when initially committed

No Statute of Limitations:

• Cases involving minors (clock may pause until victim reaches adulthood)
• Ongoing conspiracies (new acts restart limitation period)

Defendants facing older allegations should consult attorneys about statute of limitations defenses.

Legal Process for Identity Theft Criminal Cases

Investigation Phase:

• Law enforcement gathers evidence (financial records, victim statements, digital forensics)
• Federal cases investigated by FBI, Secret Service, U.S. Postal Inspection Service
• State cases handled by local police, state investigative bureaus

Charging Decision:

• Prosecutor reviews evidence
• Determines appropriate charges (misdemeanor vs. felony)
• Considers defendant’s criminal history, victim impact, available evidence

Arraignment:

• Defendant formally charged
• Enters initial plea (guilty, not guilty, no contest)
• Bail/bond determined

Pre-Trial:

• Discovery exchange between prosecution and defense
• Motion practice (suppress evidence, dismiss charges)
• Plea negotiations

Trial or Plea:

• Most cases resolve through plea agreements
• Trial before judge or jury if no agreement reached
• Sentencing hearing after conviction

Sentencing: 99.0% of individuals convicted under aggravated identity theft were sentenced to prison, with 64.7% of sentences under Guidelines Manual.

Evidence Required to Prove Identity Theft Charges

Prosecutors must prove beyond reasonable doubt:

Essential Elements:

1. Unauthorized Use: Defendant used another’s identifying information without permission
2. Knowledge: Defendant knew information belonged to another person
3. Intent: Defendant intended to defraud or commit unlawful activity
4. Actual Use: Defendant actually used (not merely possessed) the information

Common Evidence:

• Financial transaction records showing unauthorized charges
• Surveillance footage from purchase locations
• Digital forensics (computer files, internet history)
• Victim testimony about lack of authorization
• Document analysis (fake IDs, forged signatures)
• Agents recovered fraudulent identity documents and financial records from numerous conspirators, including ledger with 151 identity theft victims listed in alphabetical order

Aggravating Evidence Triggering Felony:

• Bank statements showing substantial losses
• Multiple victim statements
• Evidence of sophisticated schemes
• Connection to organized crime or terrorism

Recent Court Rulings on Identity Theft Classification (2024-2025)

Supreme Court Narrows Aggravated Identity Theft Statute: Court held that under aggravated identity theft statute, defendant’s “use” of person’s means of identification “in relation to” predicate offense must be “at crux of what makes underlying offense criminal”—prohibiting stealing and misuse of people’s identities in order to commit another felony involving fraud or deception, not conduct where person’s identity is merely incidental or ancillary to underlying felony.

This ruling limits prosecutors’ ability to add mandatory 2-year consecutive sentences in cases where identity use was tangential to underlying fraud.

Sentencing Trends 2024: Average sentence imposed increased from 44 months in fiscal year 2020 to 54 months in fiscal year 2024, reflecting tougher federal prosecution approach.

Multi-State Identity Theft Ring Prosecutions: Ten defendants convicted in federal court for participation in identity theft and fraud ring based out of Columbia, South Carolina with victims in at least South Carolina, North Carolina, Florida, Texas, Georgia, Virginia, Missouri, and New York.

Lead defendant Ronda Weston faces up to 20 years federal prison plus mandatory additional two years for aggravated identity theft, demonstrating federal prosecutors’ aggressive approach to organized schemes.

Comparison: Misdemeanor vs. Felony Identity Theft Cases

Misdemeanor Case Example: First-time offender uses roommate’s credit card without permission to make $300 in purchases. No prior criminal history. Single victim willing to accept restitution.

Likely outcome: Class A misdemeanor, probation, $300 restitution, $1,000 fine, theft education program.

Felony Case Example: From at least May 2018 through November 2020, defendant executed scheme to defraud wherein he obtained means of identification of many individuals and used that information to create false identification documents, open credit accounts, obtain loans, takeover existing credit accounts, and make purchases. When law enforcement executed search warrant on December 2, 2020, they discovered mobile identity theft lab inside trailer defendant purchased using another person’s identity.

Defendant received 90 months (7.5 years) federal prison, illustrating severe penalties for sophisticated, multi-victim schemes.

Legal Defenses in Misdemeanor vs. Felony Identity Theft

Common Defense Strategies:

Lack of Intent Defendant didn’t knowingly use another’s information or had permission to use credentials. Particularly effective in misdemeanor cases involving family members or close relationships.

Mistaken Identity Defendant wasn’t person who committed offense. Critical in federal felony cases relying on surveillance or digital evidence.

Insufficient Evidence Prosecution cannot prove defendant actually used information or knew it belonged to another. May result in charge reduction from felony to misdemeanor.

Constitutional Violations Illegal search and seizure, Miranda violations, coerced statements. Can lead to evidence suppression and case dismissal.

Statute of Limitations Charges filed outside applicable time period. More common defense in older misdemeanor cases.

100% of sentences for convictions under aggravated identity theft only were under Guidelines Manual, with average sentence reduction of 56.9% for those receiving below-guideline sentences, suggesting successful defense strategies can significantly reduce sentences even in federal felony cases.

Practical Guidance: Understanding Your Criminal Liability

If You’re Accused of Identity Theft:

1. Don’t Give Statements: Exercise right to remain silent until consulting attorney
2. Preserve Evidence: Gather documents, communications, receipts showing authorization or innocence
3. Understand Charges: Determine whether facing misdemeanor or felony allegations
4. Calculate Potential Exposure: Review state thresholds and federal guidelines
5. Evaluate Plea Options: First-time misdemeanor may qualify for diversion

Factors Favoring Misdemeanor Disposition:

• First offense with no criminal history
• Single victim with losses under $500-$1,000
• Defendant willing to make immediate restitution
• No sophisticated planning or organization
• Victim supports reduced charges

Factors Triggering Felony Prosecution:

• Losses exceeding state threshold ($750-$2,500+)
• Multiple victims across different states
• Prior theft or fraud convictions
• Vulnerable victim targeting
• Connection to organized crime or terrorism

Common Misconceptions About Identity Theft Classification

Myth: All Identity Theft is Automatic Felony Reality: Depending on where you’re located and nature of crime, identity theft can be treated as either misdemeanor or felony.

Myth: Federal Cases Always Result in Prison Reality: While 99.0% convicted under aggravated identity theft were sentenced to prison, sentences varied significantly, with some defendants receiving substantial below-guideline sentences.

Myth: Statute of Limitations Doesn’t Apply Reality: Both misdemeanor and felony identity theft have specific limitation periods, though federal offenses typically allow five years for prosecution.

Myth: First-Time Offenders Always Get Probation Reality: While first-time offenders may receive favorable treatment in misdemeanor cases, federal felony identity theft carries mandatory minimum sentences that cannot be suspended.

FAQ: Misdemeanor vs. Felony Identity Theft

Q: What is misdemeanor identity theft?

Misdemeanor identity theft is unauthorized use of another person’s personal information for fraudulent purposes below felony thresholds—typically involving financial losses under $500-$1,000, single victims, and first-time offenders. Penalties include up to one year jail, fines under $5,000, and restitution.

Q: Is identity theft a felony or misdemeanor?

It depends on circumstances. Identity theft can be treated as either misdemeanor or felony depending on location and case nature. Key factors include dollar amount stolen, number of victims, defendant’s criminal history, and whether case involves aggravating factors like vulnerable victims or sophisticated schemes.

Q: What are the penalties for misdemeanor identity theft? A: Conviction for misdemeanor offense can lead to up to a year in jail, fines of $1,000-$5,000, mandatory restitution to victims, probation terms of 1-3 years, community service, and theft education programs. First-time offenders often receive probation rather than incarceration.

Q: What are the penalties for felony identity theft?

Federal felony identity theft carries imprisonment for not more than 15 years for standard offenses, with sentences up to 20 years for drug trafficking or violent crime connections and up to 30 years for terrorism-related offenses. Aggravated identity theft adds mandatory 2 years or 5 years for terrorism, running consecutively. State felonies range from 2-30 years depending on classification.

Q: What is the statute of limitations for identity theft?

Statute of limitations for federal identity theft is generally five years, meaning prosecution has five years from alleged crime date to file charges. State misdemeanor limitations typically range 1-3 years, while state felonies allow 3-5 years. Some jurisdictions start clock when fraud discovered rather than when committed.

Q: How do prosecutors decide whether to charge misdemeanor or felony?

 Prosecutors evaluate financial loss amounts (most states have $500-$2,500 thresholds), number of victims (multiple victims trigger felony), defendant’s criminal history (prior convictions escalate charges), victim vulnerability (elderly, disabled, children), method sophistication, and connection to other crimes. Virginia charges felony when financial loss reaches $1,000 or more, or for any second or subsequent conviction.

Q: What are recent sentencing trends for identity theft?

Average federal sentence for aggravated identity theft increased from 44 months in fiscal year 2020 to 54 months in fiscal year 2024, reflecting tougher prosecution stance. Recent Supreme Court ruling narrowed when aggravated identity theft applies, potentially reducing some sentences, but prosecutors continue pursuing maximum penalties for organized schemes and multi-victim cases.

Disclaimer

This information is for educational purposes only and does not constitute legal advice. Identity theft criminal classifications, penalties, and sentencing vary by state and jurisdiction. Consult official government resources, court records, or an attorney for specific guidance regarding your situation and potential criminal liability. Criminal charges require immediate legal representation to protect your rights and explore defense options.

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• Consumer Protection Attorney Who Handles Identity Theft Cases
• Should I Hire a Lawyer for Identity Theft
• Identity Theft Lawyer Cost

About the Author

Sarah Klein, JD, is a former consumer rights attorney who spent years helping clients with issues like unfair billing, product disputes, and debt collection practices. At All About Lawyer, she simplifies consumer protection laws so readers can defend their rights and resolve problems with confidence.
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