In addition to prescribing the elements of the prohibited acts and federal jurisdictional circumstances, 18 U.S.C. § 1028 provides a three-tier level of penalties depending upon the nature of the prohibited act and the type of document involved.
- Section 1028(b)(1) is aimed at the most dangerous producers of and traffickers in false identification. It governs offenses involving: (1) the production or transfer of an identification document or false identification document that is or appears to be a United States identification document or a birth certificate, driver's license, or personal identification card; (2) the production or transfer of more than five identification documents or false identification documents; or (3) the production, transferring or possession of a document-making implement under section 1028(a)(5).
- Section 1028(b)(2) creates an intermediate penalty for the other producers and traffickers if the offense involves: (1) any production or transfer of an identification document or false identification document other than that penalized by 18 U.S.C. § 1028(b)(1); or (2) the possession with the intent to use unlawfully or transfer unlawfully five or more identification documents (other than those issued lawfully for the use of the possessor) or false identification documents under 18 U.S.C. § 1028(a)(3).
- Section 1028(b)(3) covers offenses under 18 U.S.C. § 1028(a)(4) and (a)(6).
While it may be argued that the penalty provision for an attempt is unclear under 18 U.S.C. § 1028 (e.g., does the word "production" encompass also an attempt to produce or is an attempt to be treated as "any other case" under 18 U.S.C. § 1028(b)(3)), the legislative history conclusively indicates that Congress intended attempts to be punished at the same level as the completed offense. Federal prosecutors should therefore urge the higher penalty for attempt. Of course, attempts to violate 18 U.S.C. § 1028(a)(4) and (a)(6) would be misdemeanors because such offenses are themselves misdemeanors.
[cited in USAM 9-64.400]