United States v. Donald Domingue , 713 F. App'x 413 ( 2018 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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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.
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Domingue’s position within his company—which he founded, owned, and
managed—afforded him autonomy over the scheme, control over its operation,
and discretion over these funds. The district court did not clearly err by finding
that Domingue, by fraudulently indicating to his vulnerable victims that he
was a professional they could rely on to skillfully perform services of
considerable importance, assumed and abused a position of trust. See § 3B1.3,
comment. (n.1); United States v. Miller, 607 F.3d 144, 149–50 (5th Cir. 2010);
United States v. Sudeen, 434 F.3d 384, 386, 391–92 (5th Cir. 2005); United
States v. Reeves, 255 F.3d 208, 212 (5th Cir. 2001).
Domingue has not meaningfully briefed any argument that the second
requirement—that the position of trust significantly facilitated or concealed
the offense—does not apply. See FED. R. APP. P. 28(a)(8)(A). Accordingly, any
argument as to this second element of this enhancement is forfeited for failure
to brief. See, e.g., United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992).
Regardless, the record demonstrates that the district court did not clearly err
by determining that this position of trust significantly facilitated or concealed
Domingue’s offense. See § 3B1.3; Ollison, 555 F.3d at 165. Domingue’s
cultivation and generation of the belief that he was an immigration consultant
was crucial to his scheme. His victims, in reliance on his alleged qualifications,
made payments and gave him professional discretion that allowed him to
misuse these funds without fear of ready or quick notice. See Reeves, 255 F.3d
at 212–13. Also, given his control over the operation, he could direct whether
actions should be taken in furtherance of the scheme and had unfettered
discretion over the victims’ funds. See § 3B1.3, comment. (n.1); United States
v. Pruett, 681 F.3d 232, 248–49 (5th Cir. 2012); United States v. Buck, 324 F.3d
786, 795 (5th Cir. 2003).
For these reasons, the judgment of sentence is AFFIRMED.
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