[House Report 112-202]
[From the U.S. Government Publishing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-202

======================================================================



 
                 IDENTITY THEFT IMPROVEMENT ACT OF 2011

                                _______
                                

 September 8, 2011.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

       Mr. Smith of Texas, from the Committee on the Judiciary, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2552]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2552) to amend title 18, United States Code, to 
change the state of mind requirement for certain identity theft 
offenses, and for other purposes, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Committee Votes..................................................     3
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Performance Goals and Objectives.................................     6
Advisory on Earmarks.............................................     6
Section-by-Section Analysis......................................     6
Changes in Existing Law Made by the Bill, as Reported............     7
Dissenting Views.................................................     8

                          Purpose and Summary

    H.R. 2552, the ``Identity Theft Improvement Act of 2011,'' 
corrects a problem created by the Supreme Court in the case of 
Flores-Figueroa v. United States, ____ U.S. ____, 129 S.Ct. 
1886 (2009). The Act specifically alters the state of mind 
requirements of the identity theft statute, Title 18, United 
States Code, Section 1028 so that the Government need not prove 
that the defendant knew the means of identification was of 
another person in order to prosecute for identity theft. The 
concern that this bill addresses arose when the Supreme Court 
interpreted section 1028 as requiring proof that an individual 
using a fake or stolen identification have knowledge that the 
identification belonged to another person.

                Background and Need for the Legislation

    Federal law prohibits identity theft and identity fraud, 
specifically the knowing possession, production, transfer, or 
use of an identification document, a false identification 
document, or a means of identification without lawful 
authority. Penalties for violating this law range from up to 5 
years for garden-variety identity theft to up to 20 years if 
the identity theft facilitates a drug offense, crime of 
violence, or is a second offense, or up to 30 years if the 
identity theft facilitates an act of terrorism. This statute 
was enacted in 1998 at 18 U.S.C. Sec. 1028.
    In 2004, the law was expanded to add a provision known as 
``aggravated identity theft.'' Codified at 18 U.S.C. 
Sec. 1028A, this statute provides for a consecutive 2-year 
sentence for

        ``Whoever, during and in relation to any felony 
        enumerated in subsection (c), knowingly transfers, 
        possesses, or uses, without lawful authority, a means 
        of identification of another person . . .''

    Subsection (c) contains a list of ``predicate'' felonies 
that if accompanied by identity theft can result in the 
consecutive 2-year sentence that is in addition to the sentence 
for the predicate felony. These felonies include theft, 
embezzlement, fraud, false statements, wire fraud, and false 
statements in connection to acquiring a firearm.
    Subsection (c) also includes several immigration-related 
offenses in the list of predicate felonies, including fraud 
relating to citizenship, fraud relating to alien registration 
cards, failure to leave the U.S. following deportation, and 
harboring and unlawful employment offenses under the 
Immigration and Nationality Act.
    Ignacio Flores-Figueroa is a citizen of Mexico. In 2006, 
Flores presented his employer with counterfeit Social Security 
and alien registration cards. But the numbers on both cards 
were in fact numbers assigned to other people. Flores' employer 
reported his request to U.S. Immigration and Customs 
Enforcement (ICE). ICE discovered that the numbers on Flores' 
new documents belonged to other people. The United States then 
charged Flores with two predicate felonies--entering the United 
States without inspection, 8 U.S.C. Sec. 1325(a), and misusing 
immigration documents, 18 U.S.C. Sec. 1546(a). It also charged 
him with aggravated identity theft, 18 U.S.C. Sec. 1028A.
    Flores moved for a judgment of acquittal on the 
``aggravated identity theft'' counts. He claimed that the 
Government could not prove that he knew that the numbers on the 
counterfeit documents were numbers assigned to other people.
    As noted above, the aggravated identity theft statute 
applies to a person who ``knowingly transfers, possesses, or 
uses, without lawful authority, a means of identification of 
another person.'' At issue in this case was whether the statute 
requires the Government to prove beyond a reasonable doubt that 
the defendant knew that the identification he transferred, 
possessed, or used belonged to another person.
    In Flores-Figueroa v. United States, ____ U.S. ____, 129 
S.Ct. 1886, (2009), the Supreme Court held 9-0 that the 
aggravated identity theft statute requires the government to 
prove that the defendant knew the means of identification 
belonged to another person.
    The Supreme Court's decision raised several issues. First, 
how does the government prove that the defendant knows the 
identification belongs to another person? Is it sufficient to 
introduce testimony from the victim that he or she is the 
``owner'' of that identification and that the defendant did not 
have permission? Or does the government now have to introduce 
statements by the defendant that he knows the identification 
belongs to someone else? This is much more difficult to 
accomplish. Without this legislative fix, it would be a simple 
matter for a defendant to escape responsibility by asserting 
that while the documents he possessed were improper, he did not 
have knowledge that they belonged to an actual person.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
2552.

                        Committee Consideration

    On July 20, 2011, the Committee met in open session and 
ordered the bill H.R. 2552 favorably reported without 
amendment, by recorded vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 2552.
    1. An amendment offered by Mr. Scott to exclude cases of 
Aggravated Identity Theft from the bill. Defeated 16 to 10.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................                              X
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................                              X
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
                                                                 -----------------------------------------------
    Total.......................................................             10              16
----------------------------------------------------------------------------------------------------------------

    2. Motion to report H.R. 2552 favorably, without amendment. 
Passed 16 to 10.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................
Mr. Chabot......................................................              X
Mr. Issa........................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................
Mr. Jordan......................................................
Mr. Poe.........................................................
Mr. Chaffetz....................................................
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................              X
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Cohen.......................................................
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................                              X
Ms. Chu.........................................................                              X
Mr. Deutch......................................................
Ms. Sanchez.....................................................
                                                                 -----------------------------------------------
    Total.......................................................             16              10
----------------------------------------------------------------------------------------------------------------


                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2552, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, August 1, 2011.
Hon. Lamar Smith, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2552, the 
``Identity Theft Improvement Act of 2011.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Martin von 
Gnechten.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 2552--Identity Theft Improvement Act of 2011.
    H.R. 2552 would eliminate the state-of-mind requirement in 
certain identity theft cases. Under current law, prosecuting 
attorneys in identity theft cases must prove that the defendant 
knew that the means of identification belonged to another 
individual. Based on information from the Department of 
Justice, CBO estimates that H.R. 2552 would not have a 
significant impact on the Federal budget because the bill would 
probably affect only a small number of cases.
    Enacting H.R. 2552 could affect direct spending and 
revenues; therefore, pay-as-you-go procedures apply. However, 
CBO estimates that the net effects would be insignificant for 
each year.
    Those convicted under H.R. 2552 would be subject to 
criminal fines; therefore, the Federal Government might collect 
additional fines if the bill is enacted. Criminal fines are 
recorded as revenues, deposited in the Crime Victims Fund, and 
later spent. CBO expects that any additional revenues and 
direct spending would not be significant.
    Persons prosecuted and convicted under the bill also could 
be subject to the seizure of assets by the Federal Government. 
Proceeds from the sale of such assets are recorded as revenues, 
deposited into the Assets Forfeiture Fund, and spent mostly in 
the same year. Thus, enacting H.R. 2552 could increase both 
revenues deposited into those funds and direct spending from 
them. However, CBO expects that any increase in revenues or 
spending would be negligible.
    H.R. 2552 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on State, local, or tribal governments.
    The CBO staff contact for this estimate is Martin von 
Gnechten. The estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2552 is intended to clarify the statutory authority for the 
longstanding practice of the Department of Justice of providing 
investigatory assistance on request of State and local 
authorities with respect to certain violent crimes.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2552 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
    Section 1. Short Title. This section cites the short title 
of the bill as the ``Identity Theft Improvement Act of 2011.''
    Section 2. State of Mind Requirement for Identity Theft and 
Aggravated Identity Theft. This section amends Title 18, United 
States Code, Section 1028, subsection (j), to alter the 
elements necessary for the Government to prove the crimes of 
Identity Theft and Aggravated Identity Theft. The section 
specifically states that the Government need not prove that the 
defendant knew that the means of identification was of another 
person.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italics and existing law in which no change is 
proposed is shown in roman):

                      TITLE 18, UNITED STATES CODE

PART I--CRIMES

           *       *       *       *       *       *       *


CHAPTER 47--FRAUD AND FALSE STATEMENTS

           *       *       *       *       *       *       *


Sec. 1028. Fraud and related activity in connection with identification 
                    documents, authentication features, and information

  (a) * * *

           *       *       *       *       *       *       *

  (j) State of Mind Proof Requirement.--In a prosecution under 
subsection (a)(7) or under section 1028A(a), the Government 
need not prove that the defendant knew the means of 
identification was of another person.

           *       *       *       *       *       *       *


                            Dissenting Views

    There is no doubt that identity theft is a serious problem 
confronting American citizens. The crime of identity theft is 
very damaging to consumers and is particularly harmful during a 
time when so many Americans are facing financial uncertainty. 
While H.R. 2552 purports to strengthen identity theft laws, it 
does so in a manner that raises serious policy concerns.
    H.R. 2552 expands the category of persons subject to 
counterproductive mandatory minimum sentences. Specifically, by 
lessening the showing necessary for prosecutors to obtain 
convictions for aggravated identity theft offenses under 18 
U.S.C. Sec. 1028A, the bill expands the category of persons 
subjected to a counterproductive 2-year mandatory minimum 
sentence. In addition, H.R. 2552 is a thinly veiled attempt to 
make felons of undocumented immigrants without regard for 
whether they knew that the identification documents they were 
using belonged to another person.
    For these reasons, and those stated below, we respectfully 
dissent and urge our colleagues to oppose this misguided 
legislation.

            I. H.R. 2552 EFFECTUATES POOR SENTENCING POLICY

    Proponents of H.R. 2552 argue that the bill is necessary to 
respond to the Supreme Court's decision in Flores-Figueroa v. 
U.S.\1\ That case interpreted 18 U.S.C. Sec. 1028A, which 
imposes a mandatory additional penalty of 2 years imprisonment 
on anyone who, in the course of committing certain other 
crimes, ``knowingly transfers, possesses, or uses, without 
lawful authority, a means of identification of another 
person[.]'' The issue in the case was whether a defendant could 
be convicted of violating this statute if he knew the means of 
identification was not his own, but did not know that it 
actually belonged to someone else (e.g., using a Social 
Security number that does not belong to you, but that may or 
may not be assigned to someone). The Court ruled that the mens 
rea of ``knowingly'' requires the prosecution to prove that the 
defendant knew that the identification being used was actually 
that of another person.
---------------------------------------------------------------------------
    \1\129 S. Ct. 1886 (2009)
---------------------------------------------------------------------------
    In order to contravene the Court's requirement, H.R. 2552 
sets forth a rule of construction for 18 U.S.C. Sec. Sec. 1028 
and 1028A. It provides that, ``In a prosecution under 
subsection [1028](a)(7) [identity theft] or under section 
1028A(a) [aggravated identity theft], the Government need not 
prove that the defendant knew that the means of identification 
was of another person.'' Because section 1028A provides for the 
mandatory additional 2-year penalty, relaxing the mens rea 
requirement reduces the showing necessary to obtain such a 
mandatory sentence. Consequently, the reduced mens rea 
requirement expands the category of defendants subject to 
mandatory minimum sentences to include even those who did not 
know that the identification they were using belonged to 
another person.
    Mandatory minimum sentences take a charge-centered approach 
to sentencing. Conviction for certain crimes results in a pre-
determined and generally inescapable sentence. Historically, 
they have been adopted to deter would-be criminals, 
incapacitate offenders, and combat disparity by promoting 
uniformity of punishment for similarly situated defendants. 
Nevertheless, mandatory minimum sentencing has not lived up to 
its promise, it is plagued with problems, and has led to 
extraordinary injustice, prison overcrowding and excess costs 
to taxpayers.
    While criminologists of all stripes agree that greater 
reliance on prison has some impact on the crime rate, there is 
no evidence that sentence length or lengthy mandatory minimums 
have had any impact.\2\ The Pennsylvania Sentencing Commission, 
for example, was ordered by the state legislature to study its 
mandatory minimum laws and concluded that ``neither length of 
sentence nor the imposition of a mandatory minimum sentence 
alone was related to recidivism.''\3\
---------------------------------------------------------------------------
    \2\See Andrew von Hirsch, et al, Criminal Deterrence and Sentence 
Severity: An Analysis of Recent Research (1999); Michael Tonry, 
Purposes and Functions of Sentencing, 34 Crime and Justice: A Review of 
Research 28-29 (2006); David Weisburd et. al., Specific Deterrence in a 
Sample of Offenders Convicted of White-Collar Crimes, 33 Criminology 
587 (1995).
    \3\Pennsylvania Commission on Sentencing: Report to the House of 
Representatives, House Resolution 12, Session of 2007, A Study on the 
Use and Impact of Mandatory Minimum Sentences, (Harrisburg, PA: October 
2009) 3, available at http://pcs.la.psu.edu/HR_12_
FINAL_REPORT_WEB.pdf.
---------------------------------------------------------------------------
    Intended to, among other things, reduce unwarranted 
disparity among similarly situated defendants, mandatory 
minimum sentencing has instead produced both unwarranted 
uniformity and disparity. For example, in drug offenses, the 
type and weight of a drug are alone sufficient to trigger a 
mandatory minimum sentence. The type and quantity of drugs are, 
however, poor proxies for culpability, because very different 
offenders, with varying degrees of culpability, can be subject 
to the same mandatory minimum sentence. This unwarranted 
uniformity means that a drug ``mule'' carrying a backpack 
filled with drugs on several occasions, for relatively small 
amounts of remuneration, receives the same sentence as the drug 
kingpin, who arranges the trips and enjoys enormous profits. In 
its 1991 study of mandatory minimums, the United States 
Sentencing Commission called the exaggerated role of drug 
quantity the ``tariff'' effect, and criticized it for 
prohibiting the consideration of traditional sentencing 
factors.
    At the same time, the mandatory minimum sentencing regime 
has had the effect of transferring discretion from judicial to 
prosecutorial control, creating unwarranted disparity in 
application. Prosecutors control what crime to charge and which 
sentencing factors to bring to the court's attention, whether 
to drop a charge or ``fact bargain'' sentencing elements, and 
whether to charge a crime that carries a mandatory minimum 
sentence or one that does not. All of those decisions are made 
away from the public record and are unreviewable. This has the 
result of treating similarly situated people differently based 
not on the offense committed but on the prosecutor in charge.
    There are 172 statutes with mandatory minimums in the 
Federal code. In 2008, 21,023 individuals were sentenced to 
31,239 counts of conviction carrying mandatory minimum 
sentences at an average cost of $28,000 per individual per 
year.\4\ Mandatory minimums cause other unintended, but very 
real, consequences beyond the daily and personal injustice of 
subjecting many defendants to sentences that are too long. They 
contribute to over-incarceration.
---------------------------------------------------------------------------
    \4\``Overview of Statutory Mandatory Minimum Sentencing,'' United 
States Sentencing Commission. http://www.ussc.gov/Legislative--and--
Public--Affairs/Congressional_Testimony_and
_Reports/Submissions/20090710_StC_Mandatory_Minimum.pdf
---------------------------------------------------------------------------
    As Federal Public Defender Michael Nachmanoff testified 
before the U.S. Sentencing Commission in 2009:

        The Federal prison population is currently at 206,786 
        inmates, a nearly five-fold increase since mandatory 
        minimums and mandatory guidelines became law. The major 
        cause of the prison population explosion is the 
        increase in sentence length for drug trafficking, from 
        23 months before the guidelines to 73 months in 2001. 
        About 75% of this increase was due to mandatory 
        minimums, and 25% was due to guideline increases above 
        mandatory minimum levels. Today, the average sentence 
        length for drug trafficking is even higher than in 
        2001, at 83.2 months.\5\
---------------------------------------------------------------------------
    \5\The Sentencing Reform Act of 1984: 25 Years Later, Public 
Hearing Before the U.S. Sentencing Commission, New York, New York, July 
9, 2009 (Statement of Michael Nachmanoff, Federal Public Defender for 
the Eastern District of Virginia), available at http://www.fd.org/
pdf_lib/
Statement%20of%20Michael%20Nachmanoff%20USSC%20Regional%20Hearing%207.9.

09.pdf. Public Hearing Before the United States Sentencing Commission, 
The Sentencing 
Reform Act of 1984: 25 Years Later http://www.fd.org/pdf_lib/
Statement%20of%20
Michael%20Nachmanoff%20USSC%20Regional%20Hearing%207.9.09.pdf

Since Mr. Nachmanoff delivered his testimony 2 years ago, the 
Federal prison population has climbed more than 210,000 and the 
annual average cost to incarcerate an offender is more than 
$28,000.
    Mandatory minimums make no pretense of accommodating the 
factors in 18 U.S.C. Sec. 3553(a) that account for individual 
characteristics at sentencing. They are impervious to the 
studied inquiry of that law, and wholly unable to honor 
parsimony. They are frequently longer than needed to comply 
with the purposes of punishment, only crudely reflect the 
seriousness of the offense, and completely fail to account for 
individual characteristics of the offense or the offender.\6\
---------------------------------------------------------------------------
    \6\Mary Price, Everything Old is New Again, New England Journal on 
Criminal and Civil Confinement, 83 (Winter 2010).
---------------------------------------------------------------------------
    For all of these reasons, opposition to mandatory minimum 
sentencing laws is growing, including in some unexpected 
quarters. In the past couple of years, numerous high-profile 
national conservative leaders have expressed opposition to 
mandatory minimum sentencing laws. Americans for Tax Reform 
President Grover Norquist, American Civil Rights Institute 
President Ward Connerly, National Rifle Association President 
David Keene, and Justice Fellowship President Pat Nolan have 
called mandatory minimum sentences into question.
    More recently, these conservative leaders joined former 
House Speaker Newt Gingrich, former Attorney General Ed Meese, 
Family Research Council President Tony Perkins, and former drug 
czar Bill Bennett and others to form Right on Crime, a group 
dedicated to achieving a cost-effective criminal justice system 
that ``protects citizens, restores victims, and reforms 
wrongdoers.''\7\ Included in the group's proposals for reform 
is a call to consider ``eliminating many mandatory minimum 
sentencing laws for nonviolent offenses. These laws remove all 
discretion from judges who are the most intimately familiar 
with the facts of a case and who are well-positioned to know 
which defendants need to be in prison because they threaten 
public safety and which defendants would in fact not benefit 
from prison time.''\8\
---------------------------------------------------------------------------
    \7\The Conservative Case for Reform: Fighting Crime, Prioritizing 
Victims, and Protecting Taxpayers. http://www.rightoncrime.com/
priority-issues/prisons/
    \8\Id.
---------------------------------------------------------------------------

       II. H.R. 2552 MAKES FELONS OUT OF UNDOCUMENTED IMMIGRANTS

    Although H.R. 2552 purports to address identity theft, it 
is really intended to make felons out of undocumented 
immigrants. Current law already makes it a crime to knowingly 
use or possess a false identification document, Social Security 
number, or passport.\9\ The crime of aggravated identity theft 
further penalizes the knowing use of another person's 
identifying information in connection with an additional 
criminal offense.\10\ By removing the requirement that a person 
know that the identifying information he or she is using 
belongs to another person, H.R. 2552 adds additional criminal 
charges and mandatory minimum punishment on top of behavior 
that already is criminalized.
---------------------------------------------------------------------------
    \9\18 U.S.C. Sec. 1546; 42 U.S.C. Sec. 408(a)(7)(B); 18 U.S.C. 
Sec. 1542.
    \10\18 U.S.C. Sec. 1028A.
---------------------------------------------------------------------------
    If H.R. 2552 were to become law, an individual could be 
guilty of aggravated identity theft and subject to a 2-year 
mandatory minimum sentence in prison even if such individual 
did not know that he or she used identifying information that 
belonged to someone else. In essence, the bill takes the theft 
out of identity theft, and subjects undocumented immigrants who 
use a false identification document for employment purposes 
only--even if they do not know that the identification document 
belongs to another person--to mandatory prison time.

                            III. CONCLUSION

    Because this bill expands the reach of mandatory minimum 
sentences, with particularly serious concerns with respect to 
its application to undocumented immigrants, it does not 
constitute an advance in the fight against the serious problem 
of identity theft. Rather, it would reduce the ability of 
courts to apply appropriate, case-specific sentences and would 
waste scarce resources through over-incarceration. We 
respectfully dissent.

                                   John Conyers, Jr.
                                   Robert C. ``Bobby'' Scott.
                                   Sheila Jackson Lee.
                                   Henry C. ``Hank'' Johnson, Jr.

                                  
