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Precedential or Non-Precedential: Non-Precedential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NOT PRECEDENTIAL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
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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.