United States v. Donald Domingue

Case: 17-30516 Document: 00514374205 Page: 1 Date Filed: 03/06/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit No. 17-30516 FILED Summary Calendar March 6, 2018 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff-Appellee v. DONALD DOMINGUE, also known as Donald Domingues, also known as Donald Dominguez, Defendant-Appellant Appeal from the United States District Court for the Western District of Louisiana USDC No. 6:16-CR-216-1 Before WIENER, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Donald Domingue pleaded guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343, and was sentenced to 18 months in prison. He argues that the district court wrongly applied a two-level adjustment pursuant to U.S.S.G § 3B1.3 for abuse of a position of trust. He argues that this court has not held * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Case: 17-30516 Document: 00514374205 Page: 2 Date Filed: 03/06/2018 No. 17-30516 that the position that he portrayed himself as occupying—an immigration consultant—is a position of trust. The district court’s application of § 3B1.3, including its factual finding as to whether a defendant held a position of trust, is reviewed for clear error. United States v. Dial, 542 F.3d 1059, 1060 (5th Cir. 2008). Under § 3B1.3, an adjustment is proper if the defendant (1) held a position of trust and (2) abused it in a manner that significantly facilitated the commission or concealment of the offense. § 3B1.3; United States v. Ollison, 555 F.3d 152, 165 (5th Cir. 2009). The adjustment applies if a defendant provides sufficient indicia to the victim that he validly holds a position of trust even if he does not. § 3B1.3, comment. (n.3). The unrebutted facts in the presentence report (PSR), which the district court adopted, support the adjustment. See Dial, 542 F.3d at 1060. Domingue falsely portrayed himself to detainees in Immigration and Customs Enforcement (ICE) facilities, and their relatives and friends, as an immigration consultant whose company performed immigration-related services. These alleged services, included, inter alia, bonding detainees out of ICE facilities, assisting them with their deportation proceedings, consulting with them on immigration laws and procedures, and otherwise aiding with their immigration cases. Domingue thus convinced his legally unsophisticated victims—who were desperate to avoid possible deportation and confinement— that he and his company could ably handle their immigration concerns. Relying on Domingue’s misrepresentations, his victims transferred him money for the promised services. Instead, however, Domingue exploited the discretion afforded to him by his victims: after receiving the transfers, he and his company would cease all contact with the detainee and the transferor, not pay the bond, and not represent or assist the detainee in deportation proceedings. 2 Case: 17-30516 Document: 00514374205 Page: 3 Date Filed: 03/06/2018 No. 17-30516 Domingue’s position within his company—which he founded, owned, and managed—afforded him ...

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