Dubin v. United States

599 U.S. 110

• Court: Supreme Court of the United States
• Decided: June 8, 2023
• Docket: 22-10
• Status: Published

Opinion

PRELIMINARY PRINT

Volume 599 U. S. Part 1 Pages 110–139

OFFICIAL REPORTS OF

THE SUPREME COURT June 8, 2023

REBECCA A. WOMELDORF reporter of decisions

NOTICE: This preliminary print is subject to formal revision before the bound volume is published. Users are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, pio@supremecourt.gov, of any typographical or other formal errors. 110 OCTOBER TERM, 2022

Syllabus

DUBIN v. UNITED STATES

certiorari to the united states court of appeals for the fth circuit No. 22–10. Argued February 27, 2023—Decided June 8, 2023 Petitioner David Dubin was convicted of healthcare fraud under 18 U. S. C. § 1347 after he overbilled Medicaid for psychological testing performed by the company he helped manage. The question is whether, in de- frauding Medicaid, he also committed “[a]ggravated identity theft” under § 1028A(a)(1). Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense, such as healthcare fraud], knowingly transfers, possesses, or uses, without lawful authority, a means of identifcation of another person.” The Government argued below that § 1028A(a)(1) was automatically satisfed because Dubin's fraudulent Medicaid billing included the patient's Medicaid reimburse- ment number—a “means of identifcation.” Bound by Fifth Circuit precedent, the District Court allowed Dubin's conviction for aggravated identity theft to stand, even though, in the District Court's view, the crux of the case was fraudulent billing, not identity theft. The Fifth Circuit sitting en banc affrmed in a fractured decision, with fve concur- ring judges acknowledging that under the Government's reading of § 1028A(a)(1), “the elements of [the] offense are not captured or even fairly described by the words `identity theft.' ” 27 F. 4th 1021, 1024 (opinion of Richman, C. J.). Held: Under § 1028A(a)(1), a defendant “uses” another person's means of identifcation “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal. Pp. 116–132. (a) This case turns on the scope of two of § 1028A(a)(1)'s elements: Dubin was convicted under § 1028A(a)(1) for “us[ing]” a patient's means of identifcation “in relation to” healthcare fraud. On the Government's view, a defendant “uses” a means of identifcation “in relation to” a pred- icate offense if the defendant employs that means of identifcation to facilitate or further the predicate offense in some way. Section 1028A(a)(1) would thus apply automatically any time a name or other means of identifcation happens to be part of the payment or billing method used in the commission of a long list of predicate offenses. Dubin's more targeted reading requires that the use of a means of iden- tifcation have “a genuine nexus” to the predicate offense. When the underlying crime involves fraud or deceit, as many of § 1028A's predi- cates do, this entails using a means of identifcation specifcally in a fraudulent or deceitful manner, not as a mere ancillary feature of a pay- Cite as: 599 U. S. 110 (2023) 111

ment or billing method. A careful examination of § 1028A(a)(1)'s text and structure points to a narrower reading. Pp. 116–118. (b) The terms “uses” and “in relation to” have been singled out by this Court as being particularly sensitive to context. The “various defnitions of `use' imply action and implementation.” Bailey v. United States, 516 U. S. 137, 145. Beyond that general concept, however, “ `use' takes on different meanings depending on context.” Id., at 143. This requires looking “not only to the word itself, but also to the statute and the [surrounding] scheme, to determine the meaning Congress in- tended.” Ibid. “In relation to” is similarly context sensitive. If ex- tended to its furthest reach, “relate to” would be practically limitless. The phrase clearly refers to a relationship or nexus of some kind, but the nature and strength of this relationship or nexus will be informed by context. Because the presence of two such context-dependent terms renders § 1028A(a)(1) doubly attuned to its surroundings, resort to con- text is especially necessary. Pp. 118–119. (c) Section 1028A(a)(1)'s title and terms both point toward reading the provision to capture the ordinary understanding of identity theft, where misuse of a means of identifcation is at the crux of the criminal- ity. Pp. 120–127. (1) Section 1028A is a focused, standalone provision, and its title— “Aggravated identity theft”—suggests that identity theft is at the core of § 1028A(a)(1). A statute's title has long been considered a “ `too[l] available for the resolution of a doubt' about the meaning of a statute.” Almendarez-Tor res v. United States, 523 U. S. 224, 234. Section 1028A's title is especially valuable here because it does not summarize a list of “complicated and prolifc” provisions, Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528, and also “reinforces what the text's nouns and verbs independently suggest,” Yates v. United States, 574 U. S. 528, 552 (Alito, J., concurring in judgment). The Court has previously ob- served the contrast between § 1028A's targeted title and the broad title of neighboring provision § 1028: “ `Fraud and related activity in connec- tion with identifcation documents, authentication features, and informa- tion.' ” Flores-Figueroa v. United States, 556 U. S. 646, 655. That “Congress separated the [identity] fraud crime from the [identity] theft crime in” § 1028A suggests that § 1028A is focused on identity theft spe- cifcally, rather than all fraud involving means of identifcation. Ibid. The Government urges the Court to ignore § 1028A's title, because the Government's reading of the provision bears little resemblance to ordinary understandings of “identity theft.” This broad reading would, in practice, place garden-variety overbilling at the core of § 1028A. In- stead, “identity theft” has a focused meaning: “[T]he fraudulent appro- priation and use of another person's identifying data or documents,” Webster's Unabridged Dictionary xi, or “[t]he unlawful taking and use 112 DUBIN v. UNITED STATES

of another person's identifying information for fraudulent purposes,” Black's Law Dictionary 894. This understanding of identity theft sup- ports a reading of “in relation to” where use of the means of identifca- tion is at the crux of the underlying crime. And under these defni- tions, identity theft occurs when a defendant “uses” the means of identifcation itself to defraud others. Further, the inclusion of “aggra- vated” in § 1028A's title suggests that Congress had in mind a particu- larly serious form of identity theft, not just all manner of everyday overbilling offenses. Pp. 120–124. (2) Section 1028A(a)(1)'s language points in the same direction as its title. In particular, Congress used a trio of verbs that refect an ordinary understanding of identity theft. Section 1028A(a)(1) applies when a defendant “knowingly transfers, possesses, or uses, without law- ful authority, a means of identifcation of another person,” “during and in relation to” any predicate offense. (Emphasis added.) The two verbs neighboring “uses”—“transfers” and “possesses”—are most naturally read in the context of § 1028A(a)(1) to connote not only theft, but ordi- nary understandings of identity theft in particular, i. e., they point to (1) theft of a (2) means of identifcation belonging to (3) another person. Because “transfer” and “possess” channel ordinary identity theft, the interpretative cannon noscitur a sociis (“ `a word is known by the com- pany it keeps,' ” McDonnell v. United States, 579 U. S. 550, 568–569) indicates that “uses” should be read in a similar manner. In addition, the Court “assume[s] that Congress used [three] terms because it in- tended each term to have a particular, nonsuperfuous meaning.” Bai- ley, 516 U. S., at 146. On a more targeted reading, § 1028A(a)(1)'s three verbs capture the complexity of identity theft, which intermingles as- pects of theft and fraud, misappropriation and deceitful use. While “transfer” and “possess” conjure up two steps of theft, “uses” supplies the deceitful use aspect. In contrast, if § 1028A(a)(1) is not read in this narrow manner, then the two other verbs risk leaving “uses” without “virtually any function.” Ibid. Pp. 124–127. (d) The list of § 1028A(a)(1)'s predicate offenses creates additional problems for the Government's broad reading. Section 1028A(a)(1)'s enhancement adds a severe 2-year mandatory prison sentence onto un- derlying offenses that do not impose any mandatory prison sentence at all. The Government's reading, however, does not meaningfully distin- guish between the aggravated identity theft crime that Congress sin- gled out for heightened punishment and other crimes. Instead, so long as the criteria for the broad predicate offenses are met, a defendant faces an automatic 2-year sentence for generic overbilling that happens to use names or other means of identifcation for routine billing and payment. A far more sensible conclusion from the statutory structure is that § 1028A(a)(1)'s enhancement targets situations where the means Cite as: 599 U. S. 110 (2023) 113

Opinion of the Court

of identifcation itself is at the crux of the underlying criminality, not just an ancillary billing feature. Pp. 127–129. (e) In contrast to the staggering breadth of the Government's reading of § 1028A, this Court has “ `traditionally exercised restraint in assessing the reach of a federal criminal statute,' ” Marinello v. United States, 584 U. S. –––, –––, and prudently avoided reading incongruous breadth into opaque language in criminal statutes. See, e. g., Van Buren v. United States, 593 U. S. –––. The vast sweep of the Government's read- ing—under which everyday overbilling cases would account for the ma- jority of violations—“underscores the implausibility of the Govern- ment's interpretation.” Id., at –––. While the Government represents that prosecutors will act responsibly in charging defendants under its sweeping reading, this Court “cannot construe a criminal statute on the assumption that the Government will `use it responsibly.' ” McDon- nell, 579 U. S., at 576. Pp. 129–131. 27 F. 4th 1021, vacated and remanded.

Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, Kagan, Kavanaugh, Barrett, and Jackson, JJ., joined. Gorsuch, J., fled an opinion concurring in the judgment, post, p. 133. Jeffrey L. Fisher argued the cause for petitioner. With him on the briefs were Pamela S. Karlan, Easha Anand, Anton Metlitsky, Bruce Pettig, Jason Zarrow, and Michael C. Gross. Vivek Suri argued the cause for the United States. With him on the brief were Solicitor General Prelogar, Assistant Attorney General Polite, Deputy Solicitor General Feigin, and Kevin J. Barber.*

Justice Sotomayor delivered the opinion of the Court. There is no dispute that petitioner David Fox Dubin over- billed Medicaid for psychological testing. The question is whether, in defrauding Medicaid, he also committed “[a]ggra- vated identity theft,” 18 U. S. C. § 1028A(a)(1), triggering a

*Briefs of amici curiae urging reversal were fled for the National Asso- ciation of Criminal Defense Lawyers by Henry W. Asbill, Jill Winter, and Barbara E. Bergman; for the National Association of Federal Defenders by Andrew L. Adler, Judith H. Mizner, Davina T. Chen, and Shelley Fite; and for Joel S. Johnson by Mr. Johnson, pro se. 114 DUBIN v. UNITED STATES

mandatory 2-year prison sentence. The Fifth Circuit found that he did, based on a reading of the statute that covers defendants who fraudulently infate the price of a service or good they actually provided. On that sweeping reading, as long as a billing or payment method employs another per- son's name or other identifying information, that is enough. A lawyer who rounds up her hours from 2.9 to 3 and bills her client electronically has committed aggravated identity theft. The same is true of a waiter who serves fank steak but charges for flet mignon using an electronic payment method. The text and context of the statute do not support such a boundless interpretation. Instead, § 1028A(a)(1) is violated when the defendant's misuse of another person's means of identifcation is at the crux of what makes the underlying offense criminal, rather than merely an ancillary feature of a billing method. Here, the crux of petitioner's overbilling was infating the value of services actually provided, while the patient's means of identifcation was an ancillary part of the Medicaid billing process. I David Dubin helped his father manage a psychological services company. This company submitted a claim for re- imbursement to Medicaid for psychological testing by a li- censed psychologist. In fact, however, the claim overstated the qualifcations of the employee who actually performed the testing and who was only a licensed psychological associ- ate. This falsehood infated the amount of reimbursement. Petitioner also changed the date on which the examination occurred.1 Even with the infation, the total reimbursement was only $338. App. 49. Petitioner was accordingly charged with healthcare fraud, a federal offense under 18 1 The parties dispute whether changing the date affected the availability of Medicaid reimbursement. The Court does not reach that question, as the outcome of this case would be the same either way. Cite as: 599 U. S. 110 (2023) 115

U. S. C. § 1347. According to the Government, however, petitioner's conduct also constituted “[a]ggravated identity theft” under § 1028A(a)(1). Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense], knowingly transfers, possesses, or uses, without lawful authority, a means of iden- tifcation of another person.” The predicate offenses in- clude, among many others, healthcare fraud. § 1028A(c)(4). Section 1028A(a)(1) carries a severe penalty: a mandatory minimum sentence of two years in prison “in addition to the punishment” for the predicate offense. According to the Government, this is a clear aggravated identity theft case. The Government argued at trial that § 1028A(a)(1) was automatically satisfed because petitioner's fraudulent billing included the patient's Medicaid reimburse- ment number (a “means of identifcation”). The District Court was less sure. “[T]his doesn't seem to be an aggra- vated identity theft case,” the court explained, as “the whole crux of this case is how [petitioner was] billing.” App. 37– 38. This overbilling was “criminal,” but it “wasn't aggra- vated identity theft.” Id., at 38. Nevertheless, the District Court denied petitioner's post-trial challenge to his aggra- vated identity theft conviction, explaining that contrary Fifth Circuit precedent tied its hands. The court said that it “hope[d]” it would “get reversed.” Id., at 39. On appeal, a Fifth Circuit panel affrmed. On rehearing en banc, a fractured court affrmed again. Five judges who agreed with the Government nonetheless acknowledged that under the Government's reading of § 1028A(a)(1), “the ele- ments of [the] offense are not captured or even fairly de- scribed by the words `identity theft.' ” 27 F. 4th 1021, 1024 (2022) (Richman, C. J., concurring). Eight dissenting judges agreed on this point. This type of prosecution is not uncommon. The Govern- ment has, by its own admission, wielded § 1028A(a)(1) well beyond ordinary understandings of identity theft. One 116 DUBIN v. UNITED STATES

prosecution targeted a defendant who “made a counterfeit handgun permit” for another person, using that person's real name and at that person's request. United States v. Spears, 729 F. 3d 753, 754 (CA7 2013) (en banc). Another involved unlicensed doctors who violated the law by “issu[ing] pre- scriptions that their [actual] patients would then fll at . . . pharmacies.” United States v. Berroa, 856 F. 3d 141, 148, 155–156 (CA1 2017). There was also a prosecution involving an ambulance service infating its reimbursement rates by “mischaracteriz[ing] the nature of the transports, saying that the patients had required stretchers when they had not.” United States v. Michael, 882 F. 3d 624, 628 (CA6 2018) (cit- ing United States v. Medlock, 792 F. 3d 700, 705 (CA6 2015)). Yet another prosecution involved a defendant who “provided massage services to patients to treat their pain,” but improp- erly billed this “as a Medicare-eligible physical therapy serv- ice.” United States v. Hong, 938 F. 3d 1040, 1051 (CA9 2019). Many lower courts have responded to such prosecutions with more restrained readings of the aggravated identity theft statute.2 The Fifth Circuit did not. To resolve the confict in the courts below, this Court granted certiorari, 598 U. S. ––– (2022), and now vacates the judgment of the Fifth Circuit and remands.3

II A This case turns on two of § 1028A(a)(1)'s elements. Of the various possible ways to violate § 1028A(a)(1), petitioner was convicted for “us[ing]” a patient's means of identifcation “in 2 See Berroa, 856 F. 3d, at 148, 155–157; Michael, 882 F. 3d, at 628; Spears, 729 F. 3d, at 754; Hong, 938 F. 3d, at 1051. 3 The Government argued below that because petitioner did not properly raise certain challenges to his § 1028A conviction, he cannot obtain relief without meeting the higher bar for plain-error review. The Fifth Circuit below did not decide that question, which this Court leaves for remand. Cite as: 599 U. S. 110 (2023) 117

relation to” healthcare fraud. The parties offer competing readings of these two elements. The Government reads the terms broadly and in isolation. On the Government's view, “[a] defendant uses a means of identifcation `in relation to' a predicate offense if the use of that means of identifcation `facilitates or furthers' the predi- cate offense in some way.” Brief for United States 10 (quot- ing Smith v. United States, 508 U. S. 223, 232 (1993)). As to “uses,” the Government seems just to mean “employ[s]” in any sense. Brief for United States 5, 7, 10–11. Section 1028A(a)(1) would thus apply automatically any time a name or other means of identifcation happens to be part of the payment or billing method used in the commission of a long list of predicate offenses. In other words, virtually all of the time. Petitioner, in response, offers a more targeted reading. For petitioner, using a means of identifcation in relation to a predicate offense requires “a genuine nexus to the predicate offense.” Brief for Petitioner 15. On this reading, the means of identifcation is at the crux of what makes the pred- icate offense criminal, rather than merely an ancillary fea- ture of a payment method. When the underlying crime in- volves fraud or deceit, as many of § 1028A's predicates do, this entails using a means of identifcation specifcally in a fraudulent or deceitful manner. To illustrate, petitioner borrows a heuristic from the Sixth Circuit. See Michael, 882 F. 3d, at 628. The relevant lan- guage in § 1028A(a)(1) “covers misrepresenting who received a certain service,” but not “fraudulent claims regarding how or when a service was performed.” Brief for Petitioner 15. In other words, fraud going to identity, not misrepresenta- tion about services actually provided. Take an ambulance service that actually transported patients but infated the number of miles driven. The crux of this fraud was “how” services were rendered; the patients' names were part of the billing process, but ancillary to what made the conduct fraud- 118 DUBIN v. UNITED STATES

ulent. See Michael, 882 F. 3d, at 628–629. In contrast, take the pharmacist who swipes information from the phar- macy's fles and uses it to open a bank account in a patient's name. That “misuse of th[e] means of identifcation” would be “integral to” what made the conduct fraudulent, because misrepresentation about who was involved was at the crux of the fraud. Id., at 629. In deciding between the parties' readings, one limited and one near limitless, precedent and prudence require a careful examination of § 1028A(a)(1)'s text and structure. While “uses” and “in relation to” are, in isolation, indeterminate, the statutory context, taken as a whole, points to a nar- rower reading. B In interpreting the scope of “uses” and “in relation to,” the Court begins with those terms themselves. Both terms have been singled out by this Court as particularly sensitive to context, and they do not, standing alone, conclusively re- solve this case. Start with “uses.” As the Court has observed more than once, “the word `use' poses some interpretational diffculties because of the different meanings attributable to it.” Bai- ley v. United States, 516 U. S. 137, 143 (1995); see also Leocal v. Ashcroft, 543 U. S. 1, 9 (2004). The “ `ordinary or natural' meaning” of “ `use' ” is “variously defned as `[t]o convert to one's service,' `to employ,' `to avail oneself of,' and `to carry out a purpose or action by means of.' ” Bailey, 516 U. S., at 145. “These various defnitions of `use' imply action and implementation.” Ibid. Beyond that general concept, however, “ `use' takes on different meanings depending on context,” and because it “draws meaning from its context, . . . we will look not only to the word itself, but also to the statute and the [surrounding] scheme, to determine the meaning Congress intended.” Id., at 143; see also Leocal, 543 U. S., at 9 (“Particularly when interpreting a statute that features as elastic a word as `use,' we construe language in its context and in light of the terms surrounding it”). Cite as: 599 U. S. 110 (2023) 119

For example, the federal arson statute only applies to buildings “ `used in' commerce or commerce-affecting activ- ity.” Jones v. United States, 529 U. S. 848, 850–851 (2000). In that statutory context, the Court distinguished between uses of a building as “the locus of any commercial undertak- ing,” and noncovered “passive,” “passing,” or ancillary uses of a building “as collateral to obtain and secure a mortgage” or to obtain an insurance policy. Id., at 855–856. It is statutory context, therefore, that determines what kind of active employment or conversion to one's service triggers § 1028A(a)(1)'s harsh penalty. “In relation to” is similarly context sensitive. If “ `relate to' were taken to extend to the furthest stretch of its indeter- minacy, then for all practical purposes” there would be no limits, as “ `[r]eally, universally, relations stop nowhere.' ” New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U. S. 645, 655 (1995) (quoting H. James, Roderick Hudson xli (New York ed., World's Clas- sics 1980)). This language thus cannot be “considered in iso- lation,” Maracich v. Spears, 570 U. S. 48, 59 (2013), and the Court must “go beyond the unhelpful text and the frustrat- ing diffculty of defning [this] key term” and look to statu- tory context. Travelers, 514 U. S., at 656. That the phrase refers to a relationship or nexus of some kind is clear. See Smith, 508 U. S., at 238 (“ `[I]n relation to' ” requires “some purpose or effect” between two things). Yet the kind of re- lationship required, its nature and strength, will be informed by context. The presence of two such context-dependent terms ren- ders § 1028A(a)(1) doubly attuned to its surroundings. The parties' competing readings both fall within the range of meanings of “uses” and “in relation to,” taken alone. Resort to context is thus especially necessary here.4 4 The Government tries to head off any contextual analysis at the pass, urging that “uses” and “during and in relation to” in § 1028A(a)(1) must be read identically to Smith and other of this Court's cases interpreting 18 U. S. C. § 924(c)(1)(A). That provision applies to “any person who, dur- 120 DUBIN v. UNITED STATES

C Having found the key terms “use” and “in relation to” in- determinate, the next step is to look to their surrounding words. After all, “a statute's meaning does not always turn solely on the broadest imaginable defnitions of its compo- nent words.” Epic Systems Corp. v. Lewis, 584 U. S. –––, ––– (2018) (internal quotation marks omitted). Instead, “[l]inguistic and statutory context also matter.” Ibid. Even in cases where “the literal language of the statute is neutral” in isolation, reading “the whole phrase” can point to a more targeted reading. Marinello v. United States, 584 U. S. –––, ––– – ––– (2018). Such is the case here. Section 1028A(a)(1)'s title and terms both point to a narrower reading, one centered around the ordinary understanding of identity theft. This cuts against the Government's broad reading, which the Govern- ment admits bears little relationship to the common under- standing of identity theft. In contrast, a more targeted reading accurately captures the ordinary understanding of identity theft, where misuse of a means of identifcation is at the crux of the criminality. 1 Start at the top, with the words Congress chose for § 1028A's title: “Aggravated identity theft.” 118 Stat. 831. This Court has long considered that “ `the title of a stat-

ing and in relation to any crime of violence or drug traffcking crime . . . uses or carries a frearm.” One need look no further than this Court's § 924(c) case law to see why this argument fails. The teaching of those cases is that because “use” “draws meaning from its context, . . . we will look not only to the word itself, but also to the statute and the [broader] scheme.” Bailey v. United States, 516 U. S. 137, 143 (1995). Section 1028A(a)(1) differs greatly from § 924(c), from the thing that is “used,” to the title, to the nature of the predicate offenses to which the enhancement relates. Words can wound, but names and numbers are not guns. If any- thing, the ubiquity of names and their vast range of “uses” makes the verb especially indeterminate in this context. For that same reason, the Court's decision today does not alter its § 924(c) case law. Cite as: 599 U. S. 110 (2023) 121

ute and the heading of a section' are `tools available for the resolution of a doubt' about the meaning of a statute.” Almendarez-Torres v. United States, 523 U. S. 224, 234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528–529 (1947)). A title will not, of course, “override the plain words” of a statute. Fulton v. Philadelphia, 593 U. S. –––, ––– (2021). Yet here, the key terms are so “elastic” that they must be construed “in light of the terms surrounding [them],” Leocal, 543 U. S., at 9, and the title Congress chose is among those terms. Even the Government acknowledged that if the terms in § 1028A(a)(1) are unclear, “the title is a useful clue.” Tr. of Oral Arg. 80. Two additional points bolster this approach. First, the title here is not serving the unenviable role of pithily summa- rizing a list of “complicated and prolifc” provisions. Train- men, 331 U. S., at 528. Section 1028A is a focused, stand- alone provision. Second, a title is “especially valuable [where] it reinforces what the text's nouns and verbs inde- pendently suggest.” Yates v. United States, 574 U. S. 528, 552 (2015) (Alito, J., concurring in judgment). As explained below, § 1028A(a)(1)'s text independently suggests a focus on identity theft. See infra, at 124–127. Indeed, this Court has already once used § 1028A's title and place in the statutory scheme to shed light on its text. In Flores-Figueroa v. United States, 556 U. S. 646 (2009), this Court pointed out that a neighboring provision, § 1028, carries the broad title “ `Fraud and related activity in connec- tion with identifcation documents, authentication features, and information.' ” Id., at 655. Section 1028A, in contrast, is far more targeted, “us[ing] the words `identity theft.' ” Ibid. That “Congress separated the [identity] fraud crime from the [identity] theft crime in” § 1028A suggests that § 1028A is focused on identity theft specifcally, rather than all fraud involving means of identifcation. Ibid.5 5 Flores-Figueroa held that under § 1028A(a)(1) a defendant must know “that the `means of identifcation' he or she unlawfully transferred, pos- sessed, or used, in fact, belonged to `another person.' ” 556 U. S., at 647. 122 DUBIN v. UNITED STATES

Given that, it is abundantly clear why the Government urges the Court to ignore the title. The Government's broad reading, covering any time another person's means of identifcation is employed in a way that facilitates a crime, bears little resemblance to any ordinary meaning of “identity theft.” Consider again an unlicensed doctor who flls out a prescription actually requested by a patient; no one would call that identity theft. Even judges below who agreed with the Government's reading of § 1028A(a)(1), and ultimately the Government itself, acknowledged that its reading of § 1028A(a)(1) does not fairly capture the ordinary meaning of identity theft. Nor is the difference just around the edges; the Government's reading would, in practice, place garden- variety overbilling at the core of § 1028A. Instead, “identity theft” has a focused meaning. One dictionary defnes identity theft as “the fraudulent appropri- ation and use of another person's identifying data or docu- ments, as a credit card.” Webster's Unabridged Dictionary xi (2d ed. 2001) (Webster's). Another similarly offers “[t]he unlawful taking and use of another person's identifying infor- mation for fraudulent purposes; specif[ically] a crime in which someone steals personal information about and belong- ing to another, such as a bank-account number or driver's- license number, and uses the information to deceive others.” Black's Law Dictionary 894 (11th ed. 2019) (Black's) (defning “identity theft”).6 This supports a reading of “in relation to” where use of the means of identifcation is at the crux of the underlying criminality. These defnitions refer to offenses built around what the defendant does with the means of identifcation in particular. In other words, the means of identifcation spe-

The Court not only looked to § 1028A(a)(1)'s theft-focused title and role in the statutory structure, but also drew on an understanding that the provi- sion covers “classic identity theft.” Id., at 655–656. 6 “Steal[ing]” can, of course, include situations where something was ini- tially lawfully acquired. See Black's 1710 (defning “steal”). Cite as: 599 U. S. 110 (2023) 123

cifcally is a key mover in the criminality. This central role played by the means of identifcation, which serves to desig- nate a specifc person's identity, explains why we say that the “identity” itself has been stolen. See, e. g., Spears, 729 F. 3d, at 756 (“identity theft” occurs when someone's “iden- tity has been stolen or misappropriated”). This helps ex- plain why the examples resulting from the Government's theory do not sound like identity theft. If a lawyer rounds up her hours from 2.9 to 3 and bills her client using his name, the name itself is not specifcally a source of fraud; it only plays an ancillary role in the billing process. The same is true for the waiter who substitutes one cut of meat for an- other; we might say the flet mignon's identity was stolen, perhaps, but not the diner's. This understanding of identity theft also supports a more targeted defnition of “uses.” The word “use” appears in these defnitions with a specifc meaning: Identity theft en- compasses when a defendant “uses the information to de- ceive others,” Black's 894 (emphasis added), and “the fraudu- lent . . . use” of a means of identifcation, Webster's xi (emphasis added). In other words, identity theft is com- mitted when a defendant uses the means of identifcation it- self to defraud or deceive. This tracks the Sixth Circuit's heuristic. When a means of identifcation is used decep- tively, this deception goes to “who” is involved, rather than just “how” or “when” services were provided. Use of the means of identifcation would therefore be at “the locus of [the criminal] undertaking,” rather than merely “passive,” “passing,” or ancillary employment in a crime. Jones, 529 U. S., at 855–856. On top of that, § 1028A's title is not just “identity theft,” but “Aggravated identity theft.” Typically, “[a]n `aggra- vated' offense is one `made worse or more serious by circum- stances such as violence, the presence of a deadly weapon, or the intent to commit another crime.' ” Carachuri- Rosendo v. Holder, 560 U. S. 563, 574 (2010) (quoting Black's 124 DUBIN v. UNITED STATES

Law Dictionary 75 (9th ed. 2009)). This suggests that Con- gress had in mind a particularly serious form of identity theft. Yet the Government's reading “would apply an `ag- gravated' . . . label” to all manner of everyday overbilling offenses. Carachuri-Rosendo, 560 U. S., at 574. “Of course . . . Congress, like `Humpty Dumpty,' has the power to give words unorthodox meanings.” Id., at 575. Yet where “the Government argues for a result that the English language tells us not to expect, . . . we must be very wary of the Government's position.” Ibid. (internal quotation marks omitted). The title suggests identity thef t is at the core of § 1028A(a)(1). On the Government's reading, however, ev- eryday overbilling would become the most common trigger for § 1028A(a)(1)'s severe penalty. This would turn the core of “worse or more serious” identity theft into something the ordinary user of the English language would not consider identity theft at all. 2 The title is, by defnition, just the beginning. A title does not supplant the actual text of the provision, as the Govern- ment observes. The problem for the Government is that § 1028A(a)(1)'s language points in the same direction as its title. In particular, Congress used a trio of verbs that re- fect an ordinary understanding of identity theft. While “uses” is indeterminate in isolation, here it has com- pany. Section 1028A(a)(1) applies when a defendant “know- ingly transfers, possesses, or uses, without lawful authority, a means of identifcation of another person,” “during and in relation to” any predicate offense. (Emphasis added.) “Under the familiar interpretive canon noscitur a sociis, `a word is known by the company it keeps.' ” McDonnell v. United States, 579 U. S. 550, 568–569 (2016) (quoting Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)). “[T]his canon is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended Cite as: 599 U. S. 110 (2023) 125

breadth to the Acts of Congress.” McDonnell, 579 U. S., at 569 (internal quotation marks omitted). The two neighboring verbs here, “transfers” and “pos- sesses, ” are most naturally read in the context of § 1028A(a)(1) to connote theft. While it is not necessary to determine the precise metes and bounds of these two verbs, their role in the provision points to this targeted reading. Section 1028A(a)(1) covers unlawful possession or transfer of a means of identifcation belonging to “another person.” Generally, to unlawfully “possess” something belonging to another person suggests it has been stolen. And to unlaw- fully “transfer” something belonging to another person simi- larly connotes misappropriating it and passing it along. In Flores-Figueroa, this Court drew a similarly intuitive link between a defendant taking a means of identifcation he knows belongs to another person and “ `theft.' ” 556 U. S., at 655. The Government, at argument, agreed: these two verbs “refer to circumstances in which the information is sto- len.” Tr. of Oral Arg. 90.7 “Transfer” and “possess” not only connote theft, but iden- tity theft in particular. The verbs point to (1) theft of a (2) means of identifcation belonging to (3) another person. That tracks ordinary understandings of identity theft: “a crime in which someone [1] steals [2] personal information about and [3] belonging to another.” Black's 894. Simi- larly, “the [1] fraudulent appropriation and use of [3] another person's [2] identifying data or documents.” Webster's xi. If this parallel were not enough, § 1028A(a)(1)'s title indicates

7 Those who fnd legislative history helpful will fnd yet further support. “[P]ossesses” refers to “someone who has wrongly acquired another's means of identifcation, but has not yet put it to use or transferred it elsewhere.” H. R. Rep. No. 108–528, p. 10 (2004). “[T]ransfers” is when the defendant “transferred it to another person or location where it can be put to use.” Ibid. And “uses” is when “a defendant . . . obtained someone else's means of identifcation and actually put that means of iden- tifcation to use.” Ibid. 126 DUBIN v. UNITED STATES

that the type of theft its verbs connote is identity theft specifcally. Because “transfer” and “possess” channel ordinary iden- tity theft, noscitur a sociis indicates that “uses” should be read in a similar manner to its companions. See McDonnell, 579 U. S., at 568–569. “Uses” is quite amenable to such a reading, and not just because of its indeterminacy. As ex- plained above, “using” another person's means of identifca- tion to deceive or defraud is a common feature of identity theft. See Webster's xi (“the fraudulent . . . use” of a means of identifcation (emphasis added)); Black's 894 (when a de- fendant “uses the information to deceive others” (emphasis added)). Congress thus employed a trio of verbs that capture vari- ous aspects of “classic identity theft.” Flores-Figueroa, 556 U. S., at 656. There is “the defendant [who] has gone through someone else's trash to fnd discarded credit card and bank statements,” ibid., and thus has taken possession unlawfully. There is the bank employee who passes along customer information to an accomplice, and thus transfers it unlawfully. Then there is use involving fraud or deceit about identity: “a defendant [who] has used another person's identifcation information to get access to that person's bank account.” Ibid. Another canon of construction offers a further point in favor of this narrow interpretation. The Court “assume[s] that Congress used [three] terms because it intended each term to have a particular, nonsuperfuous meaning.” Bai- ley, 516 U. S., at 146. Reading § 1028A(a)(1)'s operative verbs as tracking aspects of classic identity theft, each verb has an independent role to play. As the defnitions reveal, identity theft covers both when “someone steals personal in- formation about and belonging to another . . . and uses the information to deceive others,” Black's 894 (emphasis added), and “fraudulent appropriation and use,” Webster's xi (em- phasis added). Identity theft thus intermingles aspects of Cite as: 599 U. S. 110 (2023) 127

theft and fraud, misappropriation and deceitful use. Section 1028A(a)(1)'s three verbs capture this complexity. While “transfer” and “possess” conjure up two steps of theft, “uses” supplies the deceitful use aspect. In contrast, if § 1028A(a)(1)'s verbs do not track identity theft and if the means of identifcation need only facilitate the predicate offense, the other two verbs threaten to leave “uses” without “virtually any function.” Bailey, 516 U. S., at 146. Return to a defnition of “in relation to” that just means “ `facilitates or furthers' the predicate offense in some way.” Brief for United States 10. In virtually all cases where a defendant employs a means of identifcation to facili- tate a crime, the defendant will also possess or transfer the means of identifcation in a way that facilitates the crime. For example, petitioner's possession of the patient's means of identifcation facilitated the fraud, as did petitioner's transfer of the patient's means of identifcation to Medicaid. It is hard to imagine when “uses” would not similarly be covered by, at least, one of the two other verbs. This risk of superfuity suggests giving § 1028A(a)(1) a more precise reading. In sum, § 1028A(a)(1)'s title and text are mutually reinforc- ing. Both point toward requiring the means of identifcation to be at the crux of the criminality.

D Section 1028A's list of predicate offenses points to yet an- other stumbling block for the Government's broad reading. Section 1028A(a)(1) is an enhancement, and a severe one at that. It adds a 2-year mandatory prison sentence onto un- derlying offenses that do not impose a mandatory prison sen- tence of any kind. See, e. g., 18 U. S. C. § 1035 (“[f]alse state- ments relating to health care matters,” setting no minimum sentence). This prevents sentencing judges from consider- ing the severity of the offense, even if the amount of money involved was quite small or there are other mitigating fac- 128 DUBIN v. UNITED STATES

tors. Interpretation of § 1028A(a)(1) should thus refect the “distinction between” the aggravated identity theft crimes that “Congress sought to distinguish for heightened punish- ment and other crimes.” Leocal, 543 U. S., at 11. Far from distinguishing, the Government's reading col- lapses the enhancement into the enhanced. Here, the Gov- ernment claims that because petitioner's overbilling was facilitated by the patient's Medicaid reimbursement number, § 1028A(a)(1) automatically applies. Patient names or other identifers will, of course, be involved in the great majority of healthcare billing, whether Medicare for massages, Hong, 938 F. 3d, at 1051, or for ambulance stretcher services, Med- lock, 792 F. 3d, at 706. Patient names will be on prescrip- tions, Berroa, 856 F. 3d, at 148, 155–156, and patients com- mitting fraud on their own behalf will often have to include the names of others on their forms, such as doctors or em- ployers. Under the Government's own reading, such cases are “automatically identity theft,” Tr. of Oral Arg. 82, inde- pendent of whether the name itself had anything to do with the fraudulent aspect of the offense. Nor are these implications confned to healthcare. Sec- tion 1028A(a)(1)'s predicates include a vast array of offenses, including wire fraud and mail fraud. § 1028A(c)(5). The Government's boundless reading of “uses” and “in relation to” would cover facilitating mail fraud by using another per- son's name to address a letter to them.8 Even beyond that,

8 To avoid this, the Government has advanced a medley of shifting and inconsistent readings of “without lawful authority,” another element of § 1028A(a)(1). Sometimes the Government has claimed that a defendant would not violate § 1028A(a)(1) if they had permission to use a means of identifcation to commit a crime. See Brief for United States 32 (“every- one is presumed to have permission to use other people's names” in certain ways to facilitate crimes, such as addressing a letter); id., at 31–32 (a defendant can have “lawful authority” to use a co-conspirator's name to commit bank fraud). Other times the Government has argued that no one ever has permission to commit a crime. App. 32 (a person “can't give someone [else] permission” to use their name to facilitate a crime); Tr. of Cite as: 599 U. S. 110 (2023) 129

names or other means of identifcation are used routinely for billing and payment, whether payment apps, credit and debit cards, a bill sent by mail, or an invoice sent electronically. So long as the criteria for the broad predicate offenses are met, the Government's reading creates an automatic 2-year sentence for generic overbilling that happens to use ubiqui- tous payment methods. A far more sensible conclusion from the statutory struc- ture is that § 1028A(a)(1)'s enhancement is not indiscrimi- nate, but targets situations where the means of identifcation itself plays a key role—one that warrants a 2-year manda- tory minimum. This points once more to a targeted reading, where the means of identifcation is at the crux of the under- lying criminality, not an ancillary feature of billing.

E If more were needed, a fnal clue comes from the stagger- ing breadth of the Government's reading. This Court has “ `traditionally exercised restraint in assessing the reach of a federal criminal statute.' ” Marinello, 584 U. S., at ––– (quoting United States v. Aguilar, 515 U. S. 593, 600 (1995)); see also Arthur Andersen LLP v. United States, 544 U. S. 696, 703–704 (2005); McBoyle v. United States, 283 U. S. 25, 27 (1931). This restraint arises “both out of deference to the prerogatives of Congress and out of concern that a fair warning should be given to the world in language that the common world will understan[d] of what the law intends to do if a certain line is passed.” Marinello, 584 U. S., at ––– (internal quotation marks omitted). After all, “[c]rimes are supposed to be defned by the legislature, not by clever

Oral Arg. 91–92 (doctor would violate § 1028A(a)(1) even if patient granted permission to use his name in the fraud). The Court need not, and does not, reach the proper interpretation of “without lawful authority.” Suffce it to say, these attempts to rein in § 1028A(a)(1) through another element of the statute show that the Government itself understands the problems that arise from its sweeping reading of “uses” and “in relation to.” 130 DUBIN v. UNITED STATES

prosecutors riffng on equivocal language.” Spears, 729 F. 3d, at 758. Time and again, this Court has prudently avoided reading incongruous breadth into opaque language in criminal stat- utes. In Van Buren v. United States, 593 U. S. ––– (2021), the “far-reaching consequences” of the Government's reading “underscore[d] the implausibility of the Government's inter- pretation.” Id., at –––. In Marinello, the Court rejected the Government's reading of a statute about obstructing ad- ministration of the Tax Code that would have swept in the “person who pays a babysitter $41 per week in cash without withholding taxes,” as well as someone who “leaves a large cash tip in a restaurant, fails to keep donation receipts from every charity to which he or she contributes, or fails to pro- vide every record to an accountant.” 584 U. S., at –––. Nor was all such conduct innocent, as the statute required an individual to act “ `corruptly.' ” Id., at –––. Even still, “[h]ad Congress intended” to sweep so far, “it would have spoken with more clarity than it did.” Id., at –––. In Yates, the Court held that the Government's “unrestrained” reading would have turned a provision focused on “records” and “documents” into “an all-encompassing ban on the spolia- tion of evidence” that would “sweep within its reach physical objects of every kind,” including a fsh. 574 U. S., at 536, 540 (plurality opinion). Had Congress set out to do so, “one would have expected a clearer indication of that intent.” Id., at 540. So too here. The Government's reading would sweep in the hour-infating lawyer, the steak-switching waiter, the building contractor who tacks an extra $10 onto the price of the paint he purchased. So long as they used various com- mon billing methods, they would all be subject to a manda- tory two years in federal prison. To say that such a result is implausible would be an understatement.9 Because ev- 9 Even the Government had trouble stomaching some of these results, offering inconsistent accounts of certain examples. The Government claimed, for example, that if “an applicant for a bank loan . . . slightly Cite as: 599 U. S. 110 (2023) 131

eryday overbilling cases would account for the majority of violations in practice, the Government's reading places at the core of the statute its most improbable applications. Finally, the Government makes a familiar plea: There is no reason to mistrust its sweeping reading, because prosecu- tors will act responsibly. To this, the Court gives a just-as- familiar response: We “cannot construe a criminal statute on the assumption that the Government will `use it responsi- bly.' ” McDonnell, 579 U. S., at 576 (quoting United States v. Stevens, 559 U. S. 460, 480 (2010)). “[T]o rely upon prose- cutorial discretion to narrow the otherwise wide-ranging scope of a criminal statute's highly abstract general statu- tory language places great power in the hands of the prose- cutor.” Marinello, 584 U. S., at –––. This concern is par- ticularly salient here. If § 1028A(a)(1) applies virtually automatically to a swath of predicate offenses, the prosecutor can hold the threat of charging an additional 2-year manda- tory prison sentence over the head of any defendant who is considering going to trial. III All the points above are different wells drawing from the same source. The Court need not decide whether any of these points, standing alone, would be dispositive. Taken together, from text to context, from content to common sense, § 1028A(a)(1) is not amenable to the Government's at- tempt to push the statutory envelope. A defendant “uses” another person's means of identifcation “in relation to” a predicate offense when this use is at the crux of what makes the conduct criminal. To be clear, being at the crux of the criminality requires more than a causal relationship, such as “ `facilitation' ” of the offense or being a but-for cause of its “success.” Post, at 135, 137–138 (Gorsuch, J., concurring in judgment). Instead, with fraud or deceit crimes like the infates his salary while correctly identifying the co-signer,” “the inclusion of the co-signer's name is not `in relation to' the fraud.” Brief for United States 31–32 (some internal quotation marks omitted). This cannot be squared with the Government's own “facilitates” standard. 132 DUBIN v. UNITED STATES

one in this case, the means of identifcation specifcally must be used in a manner that is fraudulent or deceptive. Such fraud or deceit going to identity can often be succinctly sum- marized as going to “who” is involved.10 Here, petitioner's use of the patient's name was not at the crux of what made the underlying overbilling fraudulent. The crux of the healthcare fraud was a misrepresentation about the qualifcations of petitioner's employee. The pa- tient's name was an ancillary feature of the billing method employed. The Sixth Circuit's more colloquial formulation is a helpful guide, though like any rule of thumb it will have its limits. Here, however, it neatly captures the thrust of the analysis, as petitioner's fraud was in misrepresenting how and when services were provided to a patient, not who received the services. * * * Because petitioner did not use the patient's means of iden- tifcation in relation to a predicate offense within the mean- ing of § 1028A(a)(1), the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. 10 Adrift in a blizzard of its own hypotheticals, the concurrence believes that it is too diffcult to discern when a means of identifcation is at the crux of the underlying criminality. Post, at 136. The concurrence's be- wilderment is not, fortunately, the standard for striking down an Act of Congress as unconstitutionally vague. There will be close cases, cer- tainly, but that is commonplace in criminal law. Equally commonplace are requirements that something play a specifc role in an offense, whether that role is articulated as a “nexus,” Marinello v. United States, 584 U. S. –––, ––– (2018), a “locus,” Jones v. United States, 529 U. S. 848, 855–856 (2000), or “proximate cause,” Robers v. United States, 572 U. S. 639, 645 (2014). Such requirements are not always simple to apply. Yet resolving hard cases is part of the judicial job description. Hastily resorting to vagueness doctrine, in contrast, would hobble legislatures' ability to draw nuanced lines to address a complex world. Such an approach would also leave victims of actual aggravated identity theft, a serious offense, without the added protection of § 1028A(a)(1). Cite as: 599 U. S. 110 (2023) 133

Gorsuch, J., concurring in judgment

Justice Gorsuch, concurring in the judgment. Whoever among you is not an “aggravated identity thief,” let him cast the frst stone. The United States came to this Court with a view of 18 U. S. C. § 1028A(a)(1) that would affx that unfortunate label on almost every adult American. Every bill splitter who has overcharged a friend using a mobile-payment service like Venmo. Every contractor who has rounded up his billed time by even a few minutes. Every college hopeful who has overstated his involvement in the high school glee club. All of those individuals, the United States says, engage in conduct that can invite a man- datory 2-year stint in federal prison. The Court today rightly rejects that unserious position. But in so holding, I worry the Court has stumbled upon a more fundamental problem with § 1028A(a)(1). That provision is not much bet- ter than a Rorschach test. Depending on how you squint your eyes, you can stretch (or shrink) its meaning to convict (or exonerate) just about anyone. Doubtless, creative prose- cutors and receptive judges can do the same. Truly, the statute fails to provide even rudimentary notice of what it does and does not criminalize. We have a term for laws like that. We call them vague. And “[i]n our constitutional order, a vague law is no law at all.” United States v. Davis, 588 U. S. –––, ––– (2019). The “[a]ggravated identity theft” statute stipulates that “[w]hoever, during and in relation to any felony violation” listed in a later subsection, “knowingly transfers, possesses, or uses, without lawful authority, a means of identifcation of another person shall, in addition to the punishment provided for such felony, be sentenced to a term of imprisonment of 2 years.” § 1028A(a)(1). Today, the Court sets out to deter- mine what conduct that law reaches. It is, as the Court ac- knowledges, no easy task. Both the term “us[e]” and the phrase “in relation to” can support a multitude of possible meanings. Ante, at 118–119. They of course “ `imply action and implementation.' ” Ante, at 118 (quoting Bailey v. 134 DUBIN v. UNITED STATES

United States, 516 U. S. 137, 145 (1995)). Beyond that “gen- eral concept,” however, we must fend for ourselves based only on limited contextual clues. Ante, at 118–119. The United States offers up a rapacious interpretation that would require only “the use of th[e] means of identifca- tion [to] `facilitat[e] or furthe[r]' the predicate offense in some way.” Brief for United States 10 (emphasis added). Ad- mittedly, this reading “fall[s] within the range” of plausible meanings the statute could support. Ante, at 119. But so too do other readings—ones that require a more demanding “nexus” between the “means of identifcation” and the under- lying misconduct. Ante, at 119–120. For many of the rea- sons the Court gives (and more besides), I agree that we must adhere to those more restrained offerings. The United States' maximalist approach has simplicity on its side, yes; an everybody-is-guilty standard is no challenge to ad- minister. But the Constitution prohibits the Judiciary from resolving reasonable doubts about a criminal statute's mean- ing by rounding up to the most punitive interpretation its text and context can tolerate. See Wooden v. United States, 595 U. S. –––, ––– – ––– (2022) (Gorsuch, J., concurring in judgment). That insight alone means Mr. Dubin's § 1028A(a)(1) conviction cannot stand. Unfortunately, our opinion cannot end there. Having told lower courts how not to read the statute, we owe them some guidance as to how they should read it. That is where the real challenge begins. Drawing on contextual clues and rules of statutory interpretation, the Court concludes that a violation of § 1028A(a)(1) occurs whenever the “use of the means of identifcation is at the crux of the underlying crimi- nality.” Ante, at 122 (emphasis added). “In other words, the means of identifcation specifcally” must be in some way “a key mover in the criminality.” Ante, at 122–123 (empha- sis added). Put still another way, the “means of identifca- tion” must play the (or maybe a) “central role” in the com- mission of the offense. Ante, at 123 (emphasis added). Cite as: 599 U. S. 110 (2023) 135

Setting aside some defnite-article inconsistency, those for- mulations all sound sensible enough. On closer review, how- ever, they present intractable interpretive challenges of their own. When, exactly, is a “means of identifcation” “at the crux,” “a key mover,” or a “central role” player in an offense? No doubt, the answer “turns on causation, or at least causation often helps to answer the question.” United States v. Michael, 882 F. 3d 624, 628 (CA6 2018). The Court agrees but stresses that “a causal relationship” of any kind will not suffce. Ante, at 131. At the same time, however, it studiously avoids indicating whether the appropriate standard is proximate cause or something else entirely novel. Ibid. All of which gives rise to further questions. In vir- tually every fraud, a “means of identifcation” plays some critical role in the fraud's success—good luck committing a mail or wire fraud, for instance, without relying heavily on the name of the victim and likely the names of other third parties. Just how much “causation” must a prosecutor es- tablish to sustain a § 1028A(a)(1) conviction? For that mat- ter, how does one even determine the extent to which a “means of identifcation” “caused” an offense, as compared to the many other necessary inputs? The Court supplies no frm answer. Instead, it leans on various illustrations that only highlight the diffculties inher- ent in this exercise. Take, for instance, the Court's assur- ance that a “waiter who serves fank steak but charges for flet mignon using an electronic payment method” has not committed aggravated identity theft. Ante, at 114, 123. Why not, exactly? In one sense, the “means of identifca- tion” (the credit card) lies “at the crux” of the fraud. The restaurant uses it to charge the customer for a product it never supplied. Maybe that feels less distasteful than a sce- nario in which an overseas hacker steals an individual's credit card information and deploys it to order luxury goods on Amazon. But the Constitution's promise of due process means that criminal statutes must provide rules “knowable 136 DUBIN v. UNITED STATES

in advance,” not intuitions discoverable only after a prosecu- tor has issued an indictment and a judge offers an opinion. Percoco v. United States, 598 U. S. 319, 337 (2023) (Gorsuch, J., concurring in judgment). Not yet convinced? Consider some tweaks to the Court's hypothetical. Suppose that, instead of misrepresenting the cut of its steaks, a restaurant charged a customer for an ap- petizer he ordered that never arrived. What about an appe- tizer he never ordered? An additional entrée? Three? Three plus a $5,000 bottle of Moët? How about a Boeing 737? Now suppose the restaurant ran the customer's credit card for the same steak twice. What if it waited an hour to do so? A day? A year? What if the waiter gave the credit card information to a different employee at the same restaurant to run the charge? A different employee at a different restaurant? What if the restaurant sold the cus- tomer's credit card information on the dark web, and another restaurant ran the card for flet mignon? On the Court's telling, the “crux” of the fraud in some of these examples lies merely in “how and when services were provided,” while in others the “crux” involves “who received the services.” Ante, at 132. But how to tell which is which? The Court's “crux” test seemingly offers no sure way through this “blizzard of . . . hypotheticals.” Ibid., n. 10. Nor is that because I have cherry-picked “hard cases.” Ibid. Scenarios like these—and variations of them—illus- trate the sorts of problems that invariably arise in even simple § 1028A(a)(1) cases involving bogus restaurant bills. Other contexts can present still greater complications and still deeper uncertainties. The problem we face, then, is not that § 1028A(a)(1) presents some hard cases at its edges; the problem is this statute has no easy cases. Really, you could spend a whole day cooking up scenarios—ranging from the mundane to the fanciful—that collapse even your most basic intuitions about what § 1028A(a)(1) does and does not crimi- nalize. Try making up some of your own and running them Cite as: 599 U. S. 110 (2023) 137

by a friend or family member. You may be surprised at how sharply instincts diverge. For the less adventurous, consider just the facts of the case now before us. On one framing, it seems outrageous to convict Mr. Dubin of aggravated identity theft. After all, the patient did (at one point) receive psychological testing. So you might say, as the Court does, that Mr. Dubin lied only about the qualifcations of the individual who provided those services and the date on which they occurred. See ante, at 119, 132. But on another framing, the patient's identity was “a key mover,” perhaps even “at the crux,” of the fraud. Mr. Dubin could not have successfully billed the insurance provider without accurately offering up some specifc pa- tient's name and information. Nor, as the United States notes, could Mr. Dubin have simply drawn a random name from a hat. Rather, his fraud depended on purloining the specifc identity of a “Texas Medicaid enrollee who had at least three hours of psychological-testing reimbursement left in his or her account.” Brief for United States 13. Along the way, Mr. Dubin's fraud directly harmed the patient by depriving him of his annual eligibility for otherwise- compensable psychological services. From the patient's perspective, Mr. Dubin's use of his “means of identifcation” could hardly feel “ancillary.” Ante, at 114. As an abstract exercise, debating fact patterns like these may seem good fun. But there is nothing entertaining about a 2-year mandatory federal prison sentence. Criminal statutes are not games to be played in the car on a cross- country road trip. To satisfy the constitutional minimum of due process, they must at least provide “ordinary people” with “fair notice of the conduct [they] punis[h].” Johnson v. United States, 576 U. S. 591, 595 (2015). And, respectfully, I do not see how § 1028A(a)(1) can clear that threshold. Under the Court's “crux” test, no boundary separates con- duct that gives rise to liability from conduct that does not. And it appears I share this concern with the very lower 138 DUBIN v. UNITED STATES

court judges who will have to apply this standard prospec- tively. As even many of the Fifth Circuit dissenters below warned, the sort of “facilitation standard” the Court today adopts, “with its incidental/integral dividing line,” is un- workable because it “lacks clear lines and a limiting princi- ple.” 27 F. 4th 1021, 1042 (2022) (en banc) (Costa, J., dissent- ing). In the end, it is hard not to worry that the Court's “crux” test will simply become a fg leaf for judges' and ju- rors' own subjective moral judgments about whether (as the Court itself puts it) the defendant's crime is “one that war- rants a 2-year mandatory minimum.” Ante, at 129. I do not question that the Court today has done the best it might to make sense of this statute. It's just that it faces an impossible task. In the past when this Court has grap- pled with similar statutory language, it has done so in con- texts where the relevant terms could carry only a few possi- ble (and comparatively fxed) meanings. For example, when it comes to the “us[e]” of a frearm “in relation” to a crime of violence, 18 U. S. C. § 924(c)(1)(A), the presence of a gun could be a but-for cause of (or a necessary ingredient of) the offense—used, for example, as compensation in an exchange for illicit drugs. Smith v. United States, 508 U. S. 223, 237– 238 (1993). Or the gun could be “ `used as a weapon' ” by being discharged or brandished. Id., at 243 (Scalia, J., dis- senting). Because both those interpretations are relatively bounded and understandable, this Court could use principles of statutory interpretation to choose between them. The same holds true for many of the other statutes the Court (mistakenly) frets I would call into doubt. See ante, at 132, n. 10. The same cannot be said for § 1028A(a)(1), though. There are an uncountable number of ways in which an individual could “us[e]” the “means of identifcation” of another to com- mit fraud. That list covers everything from including a vic- tim's name in the subject line of a fraudulent email; to misrepresenting information on a loan form involving a Cite as: 599 U. S. 110 (2023) 139

co-signer; to putting on a wig and walking into a bank with a fake ID. And no obvious neutral rule exists to separate those “uses” that violate § 1028A(a)(1) from others that do not. In this way, § 1028A(a)(1) is not just an “ambiguous” statute—“one that does defne prohibited conduct with some precision, but [that] is subject to two or more different inter- pretations.” J. Decker, Addressing Vagueness, Ambiguity, and Other Uncertainty in American Criminal Laws, 80 Den- ver U. L. Rev. 241, 261 (2002) (emphasis added). Instead, it is a vague statute—one that “does not satisfactorily defne the proscribed conduct” at all. Id., at 260–261. I do not write this opinion as wishcasting. Perhaps, by applying the Court's “crux” test, lower courts will achieve a consistency that has, to date, eluded them. Or perhaps they will, prompted by today's decision, locate a previously unseen path through this statutory quagmire. But I would not hold my breath. Section 1028A(a)(1) simply does too little to specify which individuals deserve the inglorious title of “ag- gravated identity thief.” That is a problem Congress alone can fx. Until it does, I fear the issues that have long plagued lower courts will persist. And I will not be sur- prised if someday, maybe someday soon, they fnd their way back here. Reporter’s Note

The attached opinion has been revised to refect the usual publication and citation style of the United States Reports. The revised pagination makes available the offcial United States Reports citation in advance of publication. The syllabus has been prepared by the Reporter of Decisions for the convenience of the reader and constitutes no part of the opinion of the Court. A list of counsel who argued or fled briefs in this case, and who were members of the bar of this Court at the time this case was argued, has been inserted following the syllabus. Other revisions may include adjustments to formatting, captions, citation form, and any errant punctuation. The following additional edits were made:

p. 112, line 20 from bottom, “term to a have” is changed to “term to have” p. 126, line 9 from bottom, “term to a have” is changed to “term to have”