                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-27-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3738




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Recommended Citation
"USA v. Jimenez-Calderon" (2005). 2005 Decisions. Paper 964.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/964


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                                                             NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-3738

                           UNITED STATES OF AMERICA

                                           v.

                         ANTONIA JIMENEZ-CALDERON,
                            a/k/a MIRIAM CORTEZ,
                            a/k/a MIRIAM GARCIA,
                                a/k/a BONIFACIO

                               Antonia Jimenez-Calderon,

                                                Appellant




                    On appeal form the United States District Court
                              for the District of New Jersey
                   District Judge: The Honorable Faith S. Hochberg
                             District Court No. 02-00553-3




                                 Argued June 16, 2004

                    Before: ALITO and SMITH, Circuit Judges, and
                              DUBOIS, District Judge 1


                                 (Filed: June 27, 2005)




      1
        The Honorable Jan E. DuBois, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
                               OPINION OF THE COURT


                                                 Chester M. Keller, Esq. (Argued)
                                                 First Assistant Federal Public Defender
                                                 972 Broad Street
                                                 Newark, New Jersey 07102

                                                 Counsel for Appellant

                                                 Sabrina G. Comizzoli
                                                 Assistant U.S. Attorney
                                                 George S. Leone
                                                 Chief, Appeals Division
                                                 U.S. Attorney’s Office
                                                 970 Broad Street
                                                 Newark, New Jersey 07102

                                                 Counsel for Appellee

DUBOIS, District Judge:

       Appellant, Antonia Jimenez-Calderon, pled guilty to Counts One and Fourteen of

the Superceding Indictment in this case on January 17, 2003. Count One charged

appellant and four of her co-conspirators with conspiracy (a) to provide and obtain labor

and services of underage Mexican girls by threats of serious harm and physical restraint,

contrary to 18 U.S.C. § 1589, and (b) to recruit, harbor, transport, provide and obtain

underage Mexican girls, knowing that force, fraud and coercion would be used to cause

the girls to engage in commercial sex acts, affecting interstate commerce, contrary to 18

U.S.C. § 1591(a), in violation of 18 U.S.C. § 371. Count Fourteen charged appellant and



                                             2
three of her co-conspirators with commercial sex trafficking by force, fraud and coercion

affecting interstate commerce in violation of 18 U.S.C. §§ 1597(a)(1) and (2). On August

7, 2003, the district court sentenced appellant, inter alia, to imprisonment for a term of

210 months.

       Appellant challenges only her sentence in this appeal. Specifically, she raises the

following arguments:

       1. The district court erred in enhancing the offense level under U.S.S.G. §

2G1.1(b)(4) (B) for “otherwise unduly influencing a minor to engage in a commercial sex

act” on the ground that such conduct was incorporated into the base offense level

calculation under U.S.S.G.

§ 2G1.1(b)(1);

       2. The district court erred in applying a 2-level vulnerable victim enhancement

pursuant to U.S.S.G. § 3A1.1; and,

       3. The district court erred in determining that defendant was an organizer or leader

of a criminal activity that involved five or more participants or was otherwise extensive

pursuant to U.S.S.G. § 3B1.1.

       Appellant’s sentence was imposed prior to the Supreme Court decision in United

States v. Booker, 125 S. Ct. 738 (2005). In Booker, the Supreme Court declared that the

United States Sentencing Guidelines are only advisory. Id. at 757. As a result,

appellant’s sentence may have been affected by the district court’s treatment of the



                                              3
Guidelines as mandatory.

       Pursuant to the Court’s Notice dated February 17, 2005, appellant submitted a

letter pursuant to Federal Rule of Appellate Procedure 28(j) on March 4, 2005, in which

she stated she wants to challenge her sentence under Booker, and the government

responded.

       This Court concludes that the sentencing issues appellant raises and her challenge

to her sentence under Booker are best determined by the district court in the first instance.

Therefore, we will vacate the sentence and remand for re-sentencing in accordance with

Booker.
