Consent Does Not Defeat Aggravated Identity Theft: Sixth Circuit’s Broad Reading of “Without Lawful Authority” Under 18 U.S.C. § 1028A

Introduction

United States v. Kelli Prather, decided May 27, 2025 by the Sixth Circuit, arises from a sweeping fraud scheme against two pandemic‐relief programs—the Paycheck Protection Program (PPP) and the Economic Injury Disaster Loan (EIDL) program—created by the CARES Act. The government charged Prather with bank fraud, wire fraud, aggravated identity theft, and false statements on loan applications after she and her disabled nephew, “D.P.,” applied for over $1.2 million in loans using fabricated businesses and false credentials. The jury convicted Prather on all counts, and the district court imposed an 84-month sentence. On appeal, Prather raised challenges to the sufficiency of evidence for aggravated identity theft, evidentiary rulings under Rules 701 and 404(b), jury instructions on wire fraud, and two sentencing enhancements. The Sixth Circuit affirmed in full.

Summary of the Judgment

Aggravated Identity Theft (18 U.S.C. § 1028A): The court held that using another person’s identifying information “without lawful authority” to commit fraud encompasses misuse even with the person’s ostensible permission (following Sixth Circuit precedent in Lumbard and Mobley), and that sufficient evidence supported the convictions.
Evidentiary Rulings: Lay-opinion testimony by an SSA special agent about D.P.’s lack of understanding was admissible (or at least harmless), and testimony from Prather’s ex-fiancé about unrelated prior misconduct did not prejudice her under Rule 404(b).
Wire Fraud Instruction (18 U.S.C. § 1343): The court reaffirmed that scienter is not required for the interstate-communications element because that element is jurisdictional.
Sentencing Enhancements: (1) The district court properly relied on the Sentencing Guidelines’ commentary (entitled to Auer/Kisor deference) to define “loss” as the greater of actual or intended loss. (2) The “vulnerable victim” enhancement applied where Prather exploited a disabled person’s identity.

Analysis

1. Precedents Cited

Sherer and Tragas set the standard for manifest miscarriage of justice in unpreserved sufficiency challenges. Lumbard (706 F.3d 716) and Mobley (618 F.3d 539) held that “without lawful authority” under § 1028A(a)(1) covers misuse of identity even with permission. Dubin (599 U.S. 110) clarified the scope of “use” but expressly declined to resolve the meaning of “without lawful authority,” leaving Lumbard intact. For wire fraud’s interstate element, circuits such as Blackmon (2d Cir.), Tum (1st Cir.), and Jinian (9th Cir.) treat it as jurisdictional. On sentencing, United States v. You (6th Cir.) applied Kisor to uphold Auer deference to the Guidelines commentary defining “loss,” while Havis (en banc) requires distinguishing interpretative from legislative commentary. Finally, the “vulnerable victim” analysis draws on commentary to § 3A1.1 and cases like O’Lear (6th Cir.).

2. Legal Reasoning

Aggravated Identity Theft: The court concluded that Prather “used” D.P.’s name, birthday, and Social Security number in fraudulent EIDL applications, and it affirmed that § 1028A(a)(1) does not require non-consensual taking of identity. Even if D.P. voluntarily provided his information, using it to defraud the government is “without lawful authority.” The jury could reasonably find Prather exploited D.P.’s disabilities and duplicitous submission of applications under his name.

Rule 701 Lay-Opinion Testimony: Special Agent Reier’s testimony that D.P. lacked comprehension was at least cumulative of D.P.’s own confusion and FBI Agent Yi’s similar observations, so any error was harmless.

Rule 404(b) Prior-Acts Evidence: Willis’s testimony about a 2013 fraudulent lien was not prejudicial in light of overwhelming evidence of Prather’s PPP/EIDL fraud.

Wire Fraud Jurisdictional Element: Following Torres and sister-circuit decisions, the court held that knowledge of interstate wires is not an element requiring scienter.

Guidelines “Loss” Definition: Under You and Kisor, the Sentencing Commission’s commentary defining “loss” as actual or intended is entitled to deference. The district court correctly applied a 14-level enhancement based on intended loss.

Vulnerable Victim Enhancement: The court applied § 3A1.1(b)(1) to increase Prather’s offense level by two points, finding that D.P.’s mental disability rendered him a “vulnerable victim” under the commentary’s relevant-conduct analysis.

3. Impact

Reinforces that consent to use identity is irrelevant where the use itself is illegal.
Clarifies that wire-fraud defendants need not know their communications cross state lines.
Confirms Auer/Kisor deference to interpretive Guidelines commentary remains binding post-Loper Bright (which addressed Chevron).
Affirms robust application of the “vulnerable victim” enhancement where disability is exploited.
Signals continuing deference to agency interpretations within sentencing commentary, guiding district courts and practitioners in loss and victim enhancements.

Complex Concepts Simplified

Auer/Kisor Deference: Courts defer to an agency’s reasonable interpretation of its own genuinely ambiguous regulation or commentary (e.g., Sentencing Commission’s “loss” definition), unless plainly erroneous.
Plain Error Review: An unpreserved objection survives only if the error is clear, affects substantial rights, and undermines the trial’s fairness or integrity.
Jurisdictional Element: A requirement (like interstate wires in § 1343) that merely grants federal courts authority, not a criminal intent element.
“Without Lawful Authority”: In § 1028A, it means any unauthorized or illegal use of another’s identity to commit a crime, regardless of ostensible consent.
Relevant Conduct in Sentencing: Under the Guidelines, courts may consider criminal acts “in the commission of the offense” for enhancements such as victim vulnerability.

Conclusion

United States v. Prather cements key principles in federal fraud and sentencing law. It affirms that aggravated identity theft under § 1028A encompasses misuse of another’s identity even with ostensible consent, clarifies scienter is not required for wire-fraud jurisdictional elements, and upholds deference to Sentencing Commission commentary defining “loss.” The decision strengthens the government’s ability to prosecute pandemic-relief fraud and guides lower courts on evidentiary standards and sentencing enhancements. As a milestone in Sixth Circuit jurisprudence, Prather will shape future cases involving identity theft, wire fraud, and loss calculations under the Guidelines.