This section contains the nature of the case and procedural background.

D helped his father manage a psychological services company. This company submitted a claim for reimbursement to Medicaid for psychological testing by a licensed psychologist. The claim overstated the qualifications of the employee who actually performed the testing and who was only a licensed psychological associate. This falsehood inflated the amount of reimbursement. D also changed the date on which the examination occurred. Even with the inflation, the total reimbursement was $338. D was charged with healthcare fraud, a federal offense under 18 U. S. C. §1347. P claimed that D’s conduct also constituted “aggravated 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 identification of another person.” The predicate offenses include, 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. P argued at trial that §1028A(a)(1) was automatically satisfied because D’s fraudulent billing included the patient’s Medicaid reimbursement number (a “means of identification”). The District Court denied D’s post-trial challenge to his aggravated identity theft conviction, explaining that contrary Fifth Circuit precedent tied its hands. A Fifth Circuit panel affirmed. On rehearing en banc, a fractured court affirmed again. D appealed.

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