The FUCC proportionality argument

by: Ryan Scott • September 13, 2026 • no comments

Okay, so assume I take your credit card and use it to buy a hot dog. I would be guilty of three crimes: Identity Theft, Fraudulent Use of a Credit Card (FUCC) and Theft 3. Only one of them is a felony, but as great as my attorney is, she can't get me a misdemeanor offer. We go to trial, and we lose.

The good news is, Identity Theft and FUCC merge. State v Haddon https://scholar.google.com/scholar_case?case=2195126958328344707&q=identity+theft+merger+fraudulent+credit+card&hl=en&as_sdt=4,38&as_ylo=2017

In sum, proof of the elements of fraudulent use of a credit card proves the elements of the offense of identity theft, in the forms in which the offenses were alleged in this case. At least as is alleged here, identity theft does not require proof of an element that is not already included in fraudulent use of a credit card. Therefore, the trial court erred in failing to merge the separate guilty verdicts in each of those pairs of offenses (Counts 1 and 3; Counts 2 and 4). That is, the pair of offenses occurring on the first date should merge; the pair of offenses occurring on the second date should merge.

The bad news is this. Even though all the elements of ID Theft (felony) are contained in FUCC (misdemeanor), I still end up with a felony conviction.

Defendant requests that the court vacate her convictions and sentences for misdemeanor fraudulent use of a credit card. We agree that the offenses merge into the more serious offense but describe the disposition more appropriately. State v. Cloutier, 286 Or. 579, 600, 596 P.2d 1278 (1979) (entry of conviction is for "the most serious of the offenses of which the defendant was guilty").

I think that result is wrong, but you've got to make a proportionality argument under Article I, section 16. It is disproportionate to impose a greater punishment (the felony conviction) on a lesser-included offense. You should raise it as both a straight vertical proportionality argument and as-applied, but you can't raise it until sentencing.