What Kind of Liar Are You? The Fifth Circuit's Broad Interpretation of Aggravated Identity Theft

On March 3, 2022, in United States v. Dubin, the United States Court of Appeals for the Fifth Circuit interpreted 18 U.S.C. § 1028A(a)(1) of the aggravated identity theft statute broadly to apply to a defendant who employed a patient’s accurate identifying information to overcharge Medicaid for services provided. In doing so, the court exacerbated the circuit split over the meaning of “use” in § 1028A(a)(1), siding with the Fourth, Eighth, Eleventh, and D.C. Circuits that have interpreted use to mean any involvement of another person’s identifying information in committing certain federal offenses. By contrast, the First, Sixth, Seventh, and Ninth Circuits have confined the statutory meaning of use to describe only cases of identity falsification in the commission of federal offenses. This Comment argues that the Dubin court erred in failing to consider the statutory ambiguity and, consequently, legislative history of § 1028A(a)(1), which indicates a more limited application of the sentencing enhancement. Unless Congress clarifies that the aggravated identity theft statute applies to cases in which no identity has been falsified, the Supreme Court should construe § 1028A(a)(1) narrowly, balancing the plain meaning of use with Congress’s intent to target acts of identity misrepresentation, and avoiding the over-penalization of criminal defendants for want of clarity.