                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-9-2006

USA v. Jimenez-Calderon
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3713




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _________________

                                     No. 05-3713
                                  ________________

                          UNITED STATES OF AMERICA

                                           v.

                          ANTONIA JIMENEZ-CALDERON
                             a/k/a MIRIAM CORTEZ
                             a/k/a MIRIAM BARCIA
                                a/k/a BONIVACIO

                                           Antonia Jimenez-Calderon,
                                                              Appellant
                         ______________________________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                         D.C. Crim. Action No. 02-cr-00553
                           (Honorable Faith S. Hochberg)
                               ___________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 28, 2006

      Before: SCIRICA, Chief Judge, NYGAARD and ALARCÓN,* Circuit Judges

                                 (Filed: June 9, 2006)




  *
    The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
                               OPINION OF THE COURT




ALARCON, Circuit Judge.

       Appellant Antonia Jimenez-Calderon (“Ms. Jimenez-Calderon”) pled guilty to

Conspiracy to Promote Sex Trafficking in violation of 18 U.S.C. § 371, and Promoting

Sex Trafficking by Force in violation of 18 U.S.C. § 1591(a)(1), counts One and Fourteen

of the Superceding Indictment. She appeals from the District Court’s sentencing

decision. She argues that the District Court failed to consider adequately all the factors

listed in 18 U.S.C. § 3553(a) when fashioning her sentence, and that the District Court

otherwise failed to explain the sentence adequately in violation of 18 U.S.C. § 3553(c).

Ms. Jimenez-Calderon also argues that her sentence was calculated incorrectly under the

United States Sentencing Guidelines. This Court has jurisdiction pursuant to 18 U.S.C. §

3742. We affirm.

                                              I

       On February 22, 2002, police raided a house of prostitution in Plainfield New

Jersey. Four minors, young Mexican girls, were discovered and detained. Ms. Jimenez-

Calderon and her sister Librada Jimenez-Calderon (“Librada”) were arrested in the raid

and released on bail. They obtained false birth certificates for the four girls and attempted

to gain the girls’ release. Ms. Jimenez-Calderon Antonia and Librada recruited Sergio


                                             2
Farfan, a social worker at the Union County Jail and regular client of the house of

prostitution, to deliver the fraudulent birth certificates to the Union County Juvenile

Detention Center. Mr. Farfan delivered the documents to the Assistant Director of the

Union County Juvenile Detention Center.

        Angel Ruiz owned and operated the house of prostitution. Maritzana Lopez

helped Mr. Ruiz, and visited the house almost daily to deliver beer and to collect proceeds

from the sale of beer and acts of prostitution. In the fall of 2001, Mr. Ruiz and Ms. Lopez

recruited Pedro Garcia Burgos to assist in operating the house of prostitution. Mr. Burgos

lived at the house. The involvement of Ms. Jimenez-Calderon began when Mr. Burgos

brought in Ms. Jimenez-Calderon and Librada to help him run the brothel.

        Initially, the prostitutes working at the house were adults. However, in

approximately November 2000, the Jimenez-Calderon sisters conspired with their

brothers, Delfino and Luis Jimenez-Calderon (“Delfino and Luis”), to lure young girls

from Mexico to work at the house. Delfino and Luis targeted girls from extremely

impoverished families working in cafes in Mexico. Each of the girls worked far away

from their families. They were young, naive, and had a low level of education. Some of

the girls were illiterate. Delfino and Luis gave the girls gifts, pretended to be in love with

them, and convinced them to go to the United States with them to get married and live a

better life.


                                              3
       As part of their plan, Delfino and Luis asked the girls on a date after repeatedly

visiting the girls at their place of work. They took the girls away from the towns where

they lived and worked, and brought them to a motel, or house, where at least two girls

were raped, and one consented to sexual intercourse. The girls were then taken to meet

Delfino and Luis’s mother. They introduced them as their future brides. The girls were

then smuggled into the United States.

       After the girls arrived at the brothel in New Jersey, they were handed over to Ms.

Jimenez-Calderon and Librada and forced into prostitution. To help control the girls, Ms.

Jimenez-Calderon and her siblings falsely represented that the girls were later to be

married to Delfino and Luis. All of the money earned from prostitution at the house was

turned over to Ms. Jimenez-Calderon. The girls were told that the money they earned

would be given to their future husbands. They were told that Delfino and Luis were in

Mexico. In reality, Delfino and Luis were in the United States. Ms. Jimenez-Calderon

and Librada kept a portion of the money earned. The remainder was divided between

Delfino and Luis, Mr. Ruiz, Ms. Lopez, and Mr. Burgos.

       Eventually, one of the girls, “AHS,” learned that two other girls were also

purportedly engaged to Delfino. When Librada discovered that AHS had learned this

fact, she hit AHS in the face with a closed fist. Another victim, “GCL,” told INS agents

that she still considered Luis to be her husband, that she still loved him, and that he had


                                              4
recently bought her jewelry and clothes.

       The girls were not allowed to be friendly or establish relationships with the

customers, talk to each other, or make any phone calls. The girls were beaten if they

broke the rules. On occasion, Ms. Jimenez-Calderon and Librada called Delfino or Luis

to have them talk to the girls about their behavior. Delfino or Luis would yell at the girls

and tell them to obey Ms. Jimenez-Calderon and Librada. They were given permission to

hit the girls if they did not follow the rules.

       The case is before this Court for a second time. On June 27, 2005, this Court

remanded the instant case to the District Court for re-sentencing pursuant to United States

v. Booker, 543 U.S. 220 (2005) without ruling on the propriety of the sentence. United

States v. Jimenez-Calderon, 135 Fed. Appx. 562 (3d Cir. 2005). On July 19, 2005, the

District Court sentenced Appellant again, ordering that “Antonia Jimenez-Calderon, is

hereby imprisoned for a term of 210 months, of which 60 months will be on Count 1 and

the remainder on Count 14. . . . served concurrently.” Pursuant to 18 U.S.C. § 371, the

maximum sentence is five years on Count I. Life imprisonment is the maximum sentence

allowed on Count 14 under 18 U.S.C. § 1591(a)(1).

                                                  II

                                                  A

       A criminal sentence is reviewed for reasonableness. United States v. Booker, 543


                                                  5
U.S. 220, 261 (2005). “[W]hile not bound to apply the Guidelines, [district courts] must

consult those Guidelines and take them into account when sentencing.” United States v.

Cooper, 437 F.3d 324, 325 (3d Cir. 2006) (quoting Booker, 543 U.S. at 264). District

courts must impose sentences that promote the "sentencing goals" listed in 18 U.S.C. §

3553(a). Id. Pursuant to § 3553(a), courts must consider the following factors when

fashioning a sentence:

              (1) the nature and circumstances of the offense and the history
              and characteristics of the defendant;
              (2) the need for the sentence imposed–
                      (A) to reflect the seriousness of the offense, to promote
                      respect for the law, and to provide just punishment for
                      the offense;
                      (B) to afford adequate deterrence to criminal conduct;
                      (C) to protect the public from further crimes of the
                      defendant; and
                      (D) to provide the defendant with needed educational
                      or vocational training, medical care, or other
                      correctional treatment in the most effective manner;
              (3) the kinds of sentences available;
              (4) the kinds of sentence and the sentencing range established
              for–
                      (A) the applicable category of offense
                      committed by the applicable category of
                      defendant as set forth in the guidelines.

18 U.S.C. § 3553(a).

       The record must demonstrate the trial court gave meaningful consideration to the

factors listed in § 3553(a). Cooper, 437 F.3d at 329 (citing United States v. Williams, 425



                                             6
F.3d 478, 480 (7th Cir. 2005)). A court does not have “to discuss and make findings as to

each of the § 3553(a) factors.” Id. at 329. However, in the instant case, the judge made

explicit findings as to each of the factors enunciated in § 3553(a). App. Vol. II 292-94.

The court discussed and analyzed each factor in light of the facts presented in the instant

case. Id. at 292-94. The discussion of each factor evidences the court’s meaningful

consideration of the requirements set forth in § 3553(a). It also satisfies the requirements

of 18 U.S.C. § 3553(c). Accordingly, we reject Ms. Jimenez-Calderon’s challenge to her

sentence under § 3553.

       Ms. Jimenez-Calderon also maintains that the district court erred by imposing a

sentence greater than necessary because it treated the Sentencing Guidelines as

“presumptively appropriate” and “per se reasonable.” Appellant’s Br. 12. “The advisory

guidelines range is itself one of the § 3553(a) factors, 18 U.S.C. § 3553(a)(4), and

continues to play an integral part in sentencing decisions.” Cooper, 437 F.3d at 331

(citing Booker, 543 U.S. at 264). Although the Sentencing Guidelines are discretionary,

the district courts “must consult those Guidelines and take them into account when

sentencing.” Booker, 543 U.S at 264. There is nothing in the record to indicate that the

court considered the Sentencing Guidelines to be presumptively appropriate or per se

reasonable. Before pronouncing sentence, the District Court stated: “I use my discretion

to sentence based on 18 United States Code, Section 3553. I have to consider all of the


                                             7
factors listed in that section.” In view of this comment, and the lack of any statement

made by the District Court to support Ms. Jimenez-Calderon’s argument, we reject

Appellant’s claim that the court considered the guidelines to be presumptively

appropriate. While there is no question the District Court consulted the guidelines as

required, Booker, 543 U.S. at 264, the Court also made it clear that it exercised its

discretion in fashioning the sentence.

                                             B

       Ms. Jimenez-Calderon argues that the District Court engaged in double counting

when it applied § 2G1.1(b)(4)(B) because “the evils addressed by § 2G1.1(b)(4)(B)

respond to the same evils of inducement or coercion already found in subsection §

2G1.1(b)(1)(A) and (B)[.]” Appellant’s Br. 20. “We review the District Court's

interpretation of the Sentencing Guidelines de novo.” United States v. Pojilenko, 416

F.3d 243, 246 (3d Cir. 2005) (quoting United States v. Mobley, 956 F.2d 450, 451 (3 Cir.

1992)).

       The relevant version of § 2G1.1(b)(1) applicable at the time of sentencing1

provided for a 4-level increase if “the offense involved (A) a commercial sex act; and (B)

the use of physical force, fraud, or coercion.” Section 2G1.1(b)(4)(B) provides an

additional 2-level increase if “a participant otherwise unduly influenced a minor to

   1
    U.S.S.G § 2G1.1 was amended effective November 1, 2004.

                                              8
engage in a commercial sex act.” The gravamen of Ms. Jimenez-Calderon’s argument is

that she should not have been sentenced for unduly influencing a minor to engage in a

commercial sex act pursuant to subsection (b)(4)(B) because “the use of physical force,

fraud, or coercion” takes any undue influence into account.

       “The Sentencing Commission's awareness of potential double counting issues is

clearly reflected in other Guidelines provisions.” United States v. Wong, 3 F.3d 667, 670

(3d Cir. 1993) (holding that enhancements for more than minimal planning and for being

an organizer or leader were appropriately applied in tandem). In Wong, this Court stated

that “only when the Guidelines explicitly prohibit double counting will it be

impermissible to raise a defendant's offense level under one provision when another

offense Guideline already takes into account the same conduct.” Id. at 671. “The offense

level adjustments from more than one specific offense characteristic within an offense

guideline are applied cumulatively (added together) unless the guideline specifies that

only the greater (or greatest) is to be used.” U.S.S.G. § 1B1.1 cmt. n.4. Because the

adjustments listed under U.S.S.G. § 2G1.1 are graduated, cumulative, and there is no

explicit prohibition of double counting, the District Court correctly added 4 levels

pursuant to § 2G1.1(b)(1) in addition to a two-level increase under § 2G1.1(b)(4)(B).

       Ms. Jimenez-Calderon’s reliance on United States v. Fenton, 309 F.3d 825 (3d Cir.

2002) is misplaced. The question presented in Fenton was whether a state law crime,


                                             9
identical and conterminous with a federal crime, can be considered ‘another felony

offense’ within the meaning of the Sentencing Guidelines. Id. at 826. Fenton is

inapposite because the enhancement at issue in the instant case was not applied for an

additional state law crime. In United States v. Lloyd, 361 F.3d 197 (3d Cir. 2004) this

Court explained that the holding in Fenton applies only to cases “where a defendant is

convicted for possession of firearms resulting from a theft of those same firearms.”

Lloyd, 361 F.3d at 202.

       Similarly, the District Court did not engage in impermissible double counting

when it applied an enhancement to the base level offense calculation pursuant to §

2G1.1(b)(4)(B). Ms. Jimenez-Calderon was convicted of “[s]ex trafficking of children or

by force, fraud, or coercion.” 18 U.S.C. § 1591 (emphasis added). Section 1591 does not

solely address the trafficking of minors. It prohibits the trafficking of any person, adult or

minor, if force, fraud, or coercion is used to cause that person to engage in a commercial

sex act. 18 U.S.C. § 1591. A base offense level of 19 applies “if the offense involved a

minor.” U.S.S.G. § 2G1.1(a)(1). If the victims in the instant case had been adults, the

base level for the offense would have been 14. U.S.S.G. § 2G1.1(a)(2). The District

Court applied a two-level enhancement pursuant to § 2G1.1(b)(4)(B) for unduly

influencing a minor to engage in a commercial sex act. There was no double counting

because there is no explicit prohibition in the Sentencing Guidelines preventing the


                                             10
cumulative application of the provisions listed under § 2G1.1. Wong, 3 F.3d at 671.

                                             C

       Ms. Jimenez-Calderon claims that there is “an absence of any factors that rendered

the instant victims unusually vulnerable for victims of this offense.” Appellant’s Br. 28.

Citing United States v. Zats, 298 F.3d 182, 186 (3d Cir. 2002), she maintains that the

victims must be particularly vulnerable, and not just vulnerable in the conventional sense

of the word. In accordance with § 3A1.1 the vulnerable victim enhancement may be

applied where:

              (1) the victim was particularly susceptible or vulnerable to the
              criminal conduct; (2) the defendant knew or should have
              known of this susceptibility or vulnerability; and (3) this
              vulnerability or susceptibility facilitated the defendant's crime
              in some manner; that is, there was ‘a nexus between the
              victim's vulnerability and the crime's ultimate success.’

United States v. Iannone, 184 F.3d 214, 220 (3d Cir. 1999) (quoting United States v.

Monostra, 125 F.3d 183, 190 (3d Cir. 1997)).

       We reject Ms. Jimenez-Calderon’s suggestion that the victims were not

particularly vulnerable. It is difficult to imagine a group of victims more vulnerable than

the girls preyed upon in this scheme. Delfino and Luis targeted the girls precisely

because they were particularly vulnerable, satisfying the first and second factor

enunciated in Iannone. See id. at 220. These girls were young, uneducated, naive and



                                             11
from extremely impoverished families. Delfino and Luis convinced these girls to go to

the United States with them to get married and live a better life. They maintained that

ruse until the house of prostitution was raided by police. Some of the girls were raped,

and they were all humiliated. There is no question that there was a nexus between the

victims’ vulnerability and the ultimate success of the crime. Accordingly, the

enhancement was properly applied by the District Court.

                                             D

        Ms. Jimenez-Calderon argues that the District Court erred in applying a four-level

enhancement pursuant to U.S.S.G. § 3B1.1(a) because she organized fewer than five co-

conspirators. Section 3B1.1(a) provides: “If the defendant was an organizer or leader of a

criminal activity that involved five or more participants or was otherwise extensive,

increase by 4 levels.” U.S.S.G. § 3B1.1(a) (emphasis added). In United States v. Katora,

981 F.2d 1398, 1402 (3d Cir. 1992), this Court held that a “a district court must find that

the defendant exercised control over at least one other person” to apply an enhancement

pursuant to § 3B1.1(c).2 The district court erred in Katora because § 3B1.1 cannot

    2
     Section 3B1.1(c) does not require five or more participants. In its entirety, section 3B1.1
provides:
             Based on the defendant's role in the offense, increase the offense level
             as follows:
             (a) If the defendant was an organizer or leader of a criminal activity that
             involved five or more participants or was otherwise extensive, increase
                                                                             (continued...)

                                             12
“enhance the sentences of a duo when they bear equal responsibility for ‘organizing’ their

own commission of a crime.” Id. at 1403. Relying on Katora, Ms. Jimenez-Calderon

contends that the District Court erred in the instant case by counting her sister and other

co-conspirators among those she supervised. Katora is inapposite because it applies to §

3B1.1(c), not § 3B1.1(a), and the two defendants in Katora were the only culpable

participants in the crime. Katora, 981 F.2d at 1399.

       United States v. Fuentes, 954 F.2d 151 (3d Cir. 1992) is similarly distinguishable

because the defendant in that matter did not supervise any other individual. Id. at 153.

The instant case is closer to the situation described in United States v. Ortiz, 878 F.2d

125, 127 (3d Cir. 1989). In Ortiz, the defendant was subordinate to another individual but

qualified as a leader because he acted as a principal in an illicit transaction, recruited two

members of the conspiracy and directed the actions of some other conspirators. Id. at

127; see also United States v. Bass, 54 F.3d 125, 129 (3d Cir. 1995) (holding “[a] person



   2
    (...continued)
             by 4 levels.
             (b) If the defendant was a manager or supervisor (but not an organizer
             or leader) and the criminal activity involved five or more participants
             or was otherwise extensive, increase by 3 levels.
             (c) If the defendant was an organizer, leader, manager, or supervisor in
             any criminal activity other than described in (a) or (b), increase by 2
             levels.
U.S.S.G. § 3B1.1.


                                              13
who plans, funds, and supervises a conspiracy's operation does not immunize himself

from upward adjustment under § 3B1.1 just because he does not join in all of the

mechanics and all of the various activities of the illegal enterprise.”).

         The plain language of § 3B1.1(a) states that 4-level enhancement applies to “an

organizer or leader of a criminal activity that involved five or more participants or was

otherwise extensive.” U.S.S.G. § 3B1.1(a). While Ms. Jimenez-Calderon did not

supervise all of her co-conspirators, the criminal activity involved more than five

participants and it was extensive. Application Note 4 to § 3B1.1 instructs the court to

consider the recruitment of accomplices in determining whether an individual is a leader.

Ms. Jimenez-Calderon enlisted her two brothers to procure the victims. She recruited Mr.

Farfan to assist in the obstruction of justice after the house was raided. Mr. Burgos

helped Ms. Jimenez-Calderon to enforce the rules and collect money. If he caught one of

the victims breaking the rules, Mr. Burgos would bring her to Ms. Jimenez-Calderon and

Librada to be reprimanded. She ran the brothel along with her sister, Librada, a fifth

person. However her sister shared equal culpability. There were two other people

involved in the conspiracy. Mr. Ruiz owned and operated several houses of prostitution,

including the one at issue in the instant case, and he was aided in that enterprise by Ms.

Lopez.

         Ms. Jimenez-Calderon also collected money earned from the activity, and


                                              14
distributed the proceeds to her co-conspirators. See U.S.S.G § 3B1.1 cmt. n.3 (stating

that “[a]n upward departure may be warranted, . . . in the case of a defendant who did not

organize, lead, manage, or supervise another participant, but who nevertheless exercised

management responsibility over the property, assets, or activities of a criminal

organization.”).

       In sum, Ms. Jimenez-Calderon supervised four people–her brothers, Delfino and

Luis, Mr. Farfan, and Mr. Burgos–while participating in a larger conspiracy with her

sister, Librada, and others. Accordingly, she was a leader of a criminal activity that

involved more than five people. In view of these facts, the District Court did not err in

imposing a four-point enhancement pursuant to § 3B1.1(a).

       For the foregoing reasons, we will affirm the judgment of the District Court.




                                            15
