Yes, if you have logged onto xbox live at any time before upgrading your Hard drive with that xbox, then you will most likely get banned. There are some exceptions where people have gotten on and not gotten banned. Some say that if they got rid of that gamertag before switching HD's and signed up again with the new one they didn't get banned. Others say if they used account recovery when they upgraded they haven't gotten banned. These stories are rare, 90% of the time if you upgrade your Hard Drive AFTER signing up/using for xbox live you will get banned.