Published on: Friday, June 9, 2023

Yesterday, the Supreme Court rejected the government’s broad reading of aggravated identity theft under 18 U.S.C. § 1028(a)(1), which requires a two-year mandatory add-on sentence. See Dubin v. United States, No. 22-10 (June 8, 2023).  Justice Sotomayor delivered the opinion of a unanimous court, holding that under §1028A(a)(1), a defendant “uses” another person’s means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal.  Justice Gorsuch filed an opinion concurring in the judgment.  Justice Sotomayor’s opinion starts like this:  

There is no dispute that petitioner David Fox Dubin overbilled Medicaid for psychological testing. The question is whether, in defrauding Medicaid, he also committed “[a]ggravated identity theft,” 18 U. S. C. §1028A(a)(1), triggering a mandatory 2-year prison sentence. The Fifth Circuit found that he did, based on a reading of the statute that covers defendants who fraudulently inflate the price of a service or good they actually provided. On that sweeping reading, as long as a billing or payment method employs another person’s name or other identifying information, that is enough. A lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft. The same is true of a waiter who serves flank steak but charges for filet mignon using an electronic payment method.

The text and context of the statute do not support such a boundless interpretation. Instead, §1028A(a)(1) is violated 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 of a billing method. Here, the crux of petitioner’s overbilling was inflating the value of services actually provided, while the patient’s means of identification was an ancillary part of the Medicaid billing process.

Though Dubin involved a direct appeal, it’s holding should apply retroactively to all pending cases and those already final on direct review.  That’s because “new substantive rules generally apply retroactively." See Schriro v. Summerlin, 542 U.S. 348, 351 (2004).  “A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes.” Id. at 353. "This includes decisions that narrow the scope of a criminal statute by interpreting its terms, as well as constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id., at 351–352; see also Welch v. United States, 136 S. Ct. 1257, 1265 (2016); Montgomery v. Louisiana, 136 S. Ct.  718, 728 (2016).  Since Dubin narrowed the scope of the aggravated identity theft statute, it should apply retroactively to cases on collateral reveiw.   

The Court’s decision implicates potentially thousands of aggravated identity theft convictions pending on direct and collateral review, i.e., defendants who may want to argue that their convictions and add-on sentences were not based on “crux” cases, but were wrongly imposed in “ancillary” cases.  While defendants whose cases are final may face procedural obstacles to relief, there are a number of potential remedies, including a new 1-year statute of limitations under 28 U.S.C. § 2255(f)(3) for first-time § 2255 movants.  

The opinion is available here, and the briefing is available on the Supreme Court's docket here.