Supreme Court Prepares to Review Identity Theft Sentencing Rule

Some federal and state criminal laws provide for “sentence enhancements.” These are additional penalties tacked onto the standard penalties for an offense when certain circumstances apply. A common example is the use of a firearm during the commission of a crime, which may add years to a prison sentence after a conviction. The U.S. Supreme Court soon will consider another type of sentence enhancement, based on a federal law known as the Identity Theft Penalty Enhancement Act.

Among other provisions, this law provides a sentence enhancement of two years of imprisonment for knowingly transferring, possessing, or using (without lawful authority) a means of identification of another person during and in relation to specified felony convictions. These include theft of public money, property, or rewards, among others. In other words, if the defendant engaged in this behavior, the sentencing judge must add two years to the prison sentence that they otherwise would have received. Sometimes the sentence enhancement is longer than the underlying prison term.

The case before the Supreme Court involves David Dubin, a managing partner at a mental health testing company. Dubin told an employee to file a fraudulent Medicaid reimbursement claim for a patient who had exhausted their Medicaid benefits and thus did not receive a full exam from the testing company. The form provided the name and identification number of the patient. Dubin was eventually convicted of health care fraud. He received a total of three years in prison, one year based on the underlying offense and two years based on the identity theft sentence enhancement, which was triggered because he used the name of the patient on the form.

Dubin challenged the application of the sentence enhancement, but the Fifth Circuit Court of Appeals affirmed the decision. This month, the Supreme Court granted Dubin’s petition for a writ of certiorari. (This is the process of asking the Supreme Court to review the case.) In the petition for certiorari, Dubin’s attorney pointed out that the identity theft sentence enhancement could be applied almost automatically to any crime involving health care fraud. It also could cover anyone who submits a form for someone else that contains a misrepresentation, regardless of whether the misrepresentation involves the identity of the other person. Dubin’s attorney questions whether the statute should extend so broadly. However, the U.S. Solicitor General has urged the Supreme Court to uphold the Fifth Circuit decision as congruent with the letter of the federal law.

Oral arguments on this case likely will unfold in early 2023. The outcome will shape how courts interpret the scope of the identity theft sentence enhancement, and it could potentially influence trends in how these statutes are interpreted more generally.

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