NOT RECOMMENDED FOR PUBLICATION File Name: 25a0356n.06
No. 24-1773
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 22, 2025 ) KELLY L. STEPHENS, Clerk UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF EMANUEL JOSE VIRAMONTES- ) MICHIGAN HERNANDEZ, aka Amador Carrillo, ) Defendant-Appellant. ) OPINION )
Before: SUTTON, Chief Judge; STRANCH and RITZ, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Emanuel Jose Viramontes-Hernandez appeals his
sentence for possession of child pornography in violation of 18 U.S.C. § 2252A and § 2256. He
argues that his trial counsel was ineffective for withdrawing an objection to a five-point sentencing
enhancement for engaging in a pattern of activity under USSG § 2G2.2(b)(5) and that the trial
court imposed a procedurally and substantively unreasonable sentence. For the reasons that
follow, we AFFIRM.
I. BACKGROUND
A. Factual Background
Viramontes-Hernandez admitted the following facts as part of his plea agreement. In 2020,
his brother was under thirteen years old, and Viramontes-Hernandez knew his brother was under
thirteen years old. On multiple occasions, he removed his brother’s clothes and touched his
brother’s naked body with his penis. On multiple occasions, Viramontes-Hernandez ejaculated No. 24-1773, United States v. Viramontes-Hernandez
onto his brother’s naked bottom. On one occasion, he used his brother’s feet to stimulate his penis
while he was masturbating. Viramontes-Hernandez recorded videos of several of these sexual
encounters with his brother and threatened to send them to family members.
The Grand Rapids Police Department began investigating this sexual abuse in December
2020, and on February 25, 2021, they arrested Viramontes-Hernandez. The police department
seized the phone that Viramontes-Hernandez had on his person when he was arrested. The phone
contained over 600 images of child pornography including pornographic images of infants and
toddlers.
B. Procedural History
Viramontes-Hernandez was charged in state court with criminal sexual conduct for his
abuse of his brother. He fled after being released on bond and was not apprehended until March
2023 when he was found living and working under an alias and, once again, arrested. His phone
contained still more child pornography involving toddlers.
In October 2023, a federal grand jury indicted Viramontes-Hernandez for possession of
child pornography involving prepubescent minors in violation of 18 U.S.C. § 2252A and § 2256.
Specifically, the grand jury charged that Viramontes-Hernandez had possessed child pornography
“including[] but not limited to” three specific video files that had been found on Viramontes-
Hernandez’s computer during the February 2021 search. In May 2024, Viramontes-Hernandez
entered into a plea agreement with the Government, and, on May 9, 2024, he pled guilty to a single
count of possession of child pornography.
The initial presentence report recommended a five-level enhancement to Viramontes-
Hernandez’s base offense level under USSG § 2G2.2(b)(5), which provides for an increase “[i]f
the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a
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minor.” The initial presentence report explained that Viramontes-Hernandez had “sexually
assaulted his prepubescent brother over the course of several years and produced several videos of
such.” R. 48, Initial PSR, PageID 101. Viramontes-Hernandez objected to this enhancement,
arguing that the abuse of his brother was not, in fact, conduct underlying the instant offense,
because it was conduct underlying his state abuse offense for which he had received criminal
history points. In the revised presentence report, the probation department removed the criminal
history points for the state offense to resolve Viramontes-Hernandez’s objection but maintained
the five-level enhancement under USSG § 2G2.2(b)(5). The report now classified the abuse of
Viramontes-Hernandez’s brother as “relevant conduct” to the instant offense, and therefore not
eligible for criminal history points. In the sentencing memorandum he filed after the revised
presentence report, Viramontes-Hernandez indicated that he no longer objected to the imposition
of the pattern enhancement. At sentencing, Viramontes-Hernandez’s counsel again indicated that
he had no objection to the Guidelines calculation in the revised presentence report.
As calculated in the final presentence report, Viramontes-Hernandez had a Guidelines
range of 135 to 168 months. The Government moved for an upward variance from this range, and
Viramontes-Hernandez moved for a downward variance from this range. Viramontes-Hernandez
explained that he had been abandoned, neglected, and often starved as a child. He was raised by
various relatives after his parents, who were both suffering from substance abuse and addiction,
became unable to care for him. He was beaten often at a young age and suffered extensive corporal
punishment. At the age of seven, he was sexually abused multiple times by a male friend of the
family. At the age of fourteen, he was abused by another adult man. As a teenager, Viramontes-
Hernandez began to abuse drugs because of untreated mental health issues. Viramontes-
Hernandez argued that his criminal behavior was the product of his unstable and abusive
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upbringing and that his abuse of his brother was a continuation of the pattern of abuse he had
suffered. He argued that there was a substantial chance of rehabilitation with mental health and
substance abuse treatment.
The district court declined to impose either requested variance. The court recognized that
the Guidelines were advisory and that it had discretion to vary from them but, nonetheless, found
that a downward variance was not warranted. It reasoned that the nature of the conduct in this case
was “a very serious matter,” including not just the possession of child pornography but also the
abuse of Viramontes-Hernandez’s brother. R. 80, Sentencing Tr., PageID 476. The court also
reasoned that it had a responsibility to effect both general and specific deterrence. The court noted
that it had a responsibility to protect the public from future crimes and that danger assessments run
by the probation department indicated that Viramontes-Hernandez posed a moderate risk of re-
offense. The court recommended that Viramontes-Hernandez take the time he spent in prison to
complete sex offender treatment. It also took into account the mitigating evidence presented by
the defendant including both his past history of abuse and his desire for reform in declining to
impose an upward variance despite the severity of the conduct. As a result, the court imposed a
sentence of 168 months, at the top end of the Guidelines range.
II. ANALYSIS
A. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his
defence.” “It has long been recognized that the right to counsel is the right to the effective
assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). A defendant’s
Sixth Amendment rights are violated where (1) counsel’s performance was deficient, and (2) the
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deficient performance prejudiced the defendant. Gardner v. United States, 122 F.4th 254, 258 (6th
Cir. 2024) (citing Strickland v. Washington, 466 U.S. 668, 686 (1984)). To show deficient
performance, Viramontes-Hernandez must demonstrate that his counsel made errors “so serious
that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth Amendment.”
Strickland, 466 U.S. at 687. To show prejudice, Viramontes-Hernandez must demonstrate a
“reasonable probability” that his sentencing outcome would have been more favorable in the
absence of counsel’s errors. Id. at 694.
Viramontes-Hernandez alleges that his counsel was ineffective for withdrawing his
objection to the application of the pattern objection once the revised presentence report was
issued—a decision he characterizes as “without reason.” Appellant’s Br. 8. When an appellant
alleges that counsel was ineffective for failure to raise an issue, this court is mindful that “by
definition” counsel “cannot be ineffective for a failure to raise an issue that lacks merit.” Greer v.
Mitchell, 264 F.3d 663, 676 (6th Cir. 2001). Thus, the determination of whether an objection to
the application of the USSG § 2G2.2(b)(5) pattern enhancement for Viramontes-Hernandez’s
repeated sexual abuse of his brother in the revised presentence report would have had merit is key
to the determination of whether he was provided with ineffective counsel at sentencing.
The pattern enhancement applies “[i]f the defendant engaged in a pattern of activity
involving the sexual abuse or exploitation of a minor.” USSG § 2G2.2(b)(5). At the outset, the
parties disagree as to when the defendant must have engaged in this pattern of activity in order for
the enhancement to apply. The commentary to § 2G2.2(b)(5) provides that
“Pattern of activity involving the sexual abuse or exploitation of a minor” means any combination of two or more separate instances of the sexual abuse or sexual exploitation of a minor by the defendant, whether or not the abuse or exploitation (A) occurred during the course of the offense; (B) involved the same minor; or (C) resulted in a conviction for such conduct.
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USSG § 2G2.2(b)(5) cmt. n.1. Viramontes-Hernandez argues, however, that we should not apply
this commentary because its reading of the guideline is unambiguously foreclosed by the plain text
of the guideline itself. He asserts that the pattern of activity must have occurred during the
“relevant conduct” specified in USSG § 1B1.3.
We need not decide here whether the pattern of activity referred to by § 2G2.2(b)(5) can
extend beyond the “relevant conduct” defined by § 1B1.3, because Viramontes-Hernandez’s
objection would fail even under his narrower reading of § 2G2.2(b)(5). Guideline 2G2.2 requires
“grouping” under USSG § 3D1.2—that is, the severity of the crime is measured based on the total
aggregation of a pattern of activity, in this case the number of pornographic images downloaded.
For crimes subject to grouping, the “relevant conduct” defined by § 1B1.3 includes two categories.
First, under § 1B1.3(a)(1), relevant conduct includes “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or willfully caused by the defendant . . . that
occurred during the commission of the offense of conviction, in preparation for that offense, or in
the course of attempting to avoid detection or responsibility for that offense.” Second, under
§ 1B1.3(a)(2), relevant conduct includes acts, omissions, etc., that were “part of the same course
of conduct or common scheme or plan as the offense of conviction.” United States v. Hill, 79 F.3d
1477, 1481 (6th Cir. 1996) (quoting USSG § 1B1.3(a)(2)).
It is the second category that is relevant to this case. We have explained that in order to
fall into “part of the same course of conduct or common scheme or plan as the offense of
conviction,” the conduct must be “a criminal violation that could result in incarceration—either
under federal or state law” and “bear some logical relationship to the offense of conviction.”
United States v. Hodge, 805 F.3d 675, 679-80 (6th Cir. 2015). And we have held that prior,
uncharged attempts to create child pornography are “relevant conduct” to child pornography
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offenses under § 1B1.3. Id. at 682-83. For example, in Hodge, the defendant attempted to create
a video of his minor stepdaughter as she was stepping out of the shower nude. Id. at 677. As a
result of the investigation of this incident, it was discovered that he had substantial quantities of
child pornography on his computer, and he was charged with possession of child pornography
based on the images on his computer. Id. We held that “Hodge had a common purpose—
fulfillment of his sexual interest in minors—for his receipt of child pornography and his production
of the voyeur videos. The voyeur videos were thus part of a ‘common scheme’ with his offense
of conviction.” Id. at 683.
In the present action, no party disputes that Viramontes-Hernandez’s abuse of his brother
was criminal. And the offense of conviction is even more tightly intertwined with the purported
“relevant conduct”—i.e., the sexual abuse of Viramontes-Hernandez’s brother—than in Hodge.
Viramontes-Hernandez pled guilty to possession of child pornography and specifically
acknowledged in the “Factual Basis of Guilt” section of his plea agreement that he possessed child
pornography that he, himself, had taped of his brother while sexually abusing his brother. R. 38,
Plea Agreement, PageID 71-72. Viramontes-Hernandez’s abuse of his brother was not merely part
of a common scheme to fulfill a sexual interest in minors—it was part of a common scheme to
possess pornography including but not limited to pornography featuring Viramontes-Hernandez’s
abuse of his brother. Viramontes-Hernandez’s abuse of his brother was, therefore, “relevant
conduct.”
The abuse occurred multiple times. It was, therefore, “a pattern of activity involving the sexual
abuse or exploitation of a minor” and meets the requirements for the application of § 2G2.2(b)(5).
Application of that enhancement was appropriate, and any objection would have been meritless.
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It was not ineffective assistance of counsel for Viramontes-Hernandez’s counsel to withdraw his
objection.1
B. Sentencing
There are two components to our review of a district court’s sentence: procedural
reasonableness and substantive reasonableness. See United States v. Bolds, 511 F.3d 568, 578 (6th
Cir. 2007). Procedurally, the district court must “properly calculate the Guidelines range, treat
that range as advisory, consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from
considering impermissible factors, select the sentence based on facts that are not clearly erroneous,
and adequately explain why it chose the sentence.” United States v. Rayyan, 885 F.3d 436, 440
(6th Cir. 2018). Substantively, the sentence, must be sufficient but no more than necessary to
achieve the sentencing goals set out in § 3553(a). United States v. Perez-Rodriguez, 960 F.3d 748,
753 (6th Cir. 2020).
1. Procedural Reasonableness
Procedurally, Viramontes-Hernandez alleges that the trial court failed to adequately
consider the § 3553(a) factors or to explain its reasoning. Ordinarily, we review procedural
reasonableness claims under the abuse of discretion standard. See United States v. Small, 988 F.3d
241, 257 (6th Cir. 2021). However, because Viramontes-Hernandez failed to object to any
procedural defects at sentencing, we review only for plain error. United States v. Solano-Rosales,
781 F.3d 345, 351 (6th Cir. 2015). “To show plain error, Defendant ‘must show (1) error (2) that
1 This should not be taken as an indication that Viramontes-Hernandez’s counsel’s initial objection was meritless. Initially, the presentence report included the state charge for Viramontes-Hernandez’s sexual abuse of his brother as a separate incident, not as part of the relevant offense conduct, for the purpose of the criminal history calculation. Thus, it was classified as part of the offense conduct for the purposes of Viramontes-Hernandez’s base offense level but not as part of the offense conduct for his criminal history calculation—functionally double counting it. This issue was resolved in the revised presentence report, and therefore, any objection on these grounds to the revised report would have been meritless.
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was obvious or clear, (3) that affected [D]efendant’s substantial rights and (4) that affected the
fairness, integrity, or public reputation of the judicial proceedings.’” Id. (alteration in original)
(quoting United States v. Wallace, 597 F.3d 794, 802 (6th Cir. 2010)).
Section 3553(a) provides that a sentencing court should consider: (1) “the nature and
circumstances of the offense and the history and characteristics of the defendant;” (2) the “need
for the sentence imposed” in light of the need to reflect the seriousness of the offense, protect the
public, deter others, and promote rehabilitation; (3) “the kinds of sentences available;” (4) “the
kinds of sentence and the sentencing range established for . . . the applicable category of offense
committed by the applicable category of defendant;” (5) “any pertinent policy statement[;]”
(6) “the need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct;” and (7) “the need to provide restitution to any
victims of the offense.”
A court is not required to act as an “automaton” and recite each factor; highlighting the
individual characteristics that distinguish the defendant from others and that merit the sentence
imposed is enough. United States v. Smith, 474 F.3d 888, 894 (6th Cir. 2007). The district court
must simply “address[] the relevant factors in reaching its conclusion” and produce a record that
“allow[s] for meaningful appellate review.” United States v. Dexta, 470 F.3d 612, 614-15 (6th
Cir. 2006).
In this case, the district court carefully walked through the factors it found relevant in
imposing its sentence. The court addressed the factors it found concerning, notably the severity
of the crime and the effect it had on Viramontes-Hernandez’s younger brother, the court’s belief
that Viramontes-Hernandez posed a risk of recidivism absent a substantial prison sentence, and
the need to deter others from engaging in similarly damaging behavior. The court also explained
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that it has considered Viramontes-Hernandez’s mitigation evidence, including evidence that his
behavior was the product of a cycle of abuse and his commitment to changing his life upon release
from prison, then noted that it was imposing a more lenient sentence as a result of these factors.
The court considered the advisory Guidelines range and concluded that it adequately represented
the appropriate sentence and that, therefore, no variance was needed in either direction. In short,
the court adequately set forth the considerations raised by both parties and explained how it
weighed the various factors in play. The court did not obviously err in doing so.
2. Substantive Reasonableness
Viramontes-Hernandez also argues that his sentence was substantively unreasonable
because the district court placed too great a weight on the nature of his crime and too little on his
mitigation evidence. We review such a challenge under an abuse of discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). A court acts unreasonably if it “place[s] too much weight
on some of the § 3553(a) factors and too little on others” in reaching its sentencing decision.
United States v. Parrish, 915 F.3d 1043, 1047 (6th Cir. 2019) (quoting Rayyan, 885 F.3d at 442).
However, because Viramontes-Hernandez’s sentence was within the Guidelines range, we apply
a presumption of reasonableness. See United States v. Vonner, 516 F.3d 382, 389-90 (6th Cir.
2008) (en banc). We respect “the district court’s reasoned discretion to weigh the factors ‘to
fashion individualized, fact-driven sentences without interference from appellate courts.’” Perez-
Rodriguez, 960 F.3d at 754 (quoting United States v. Boucher, 937 F.3d 702, 708 (6th Cir. 2019)).
We overturn only if we are “left with a definite and firm conviction that the district court
committed a clear error of judgment.” Id. at 753 (internal quotation marks omitted).
The nature of the crimes in this case was severe, even relative to other convictions for
possession of large quantities of child pornography. As both the Government and the district court
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noted below, Viramontes-Hernandez did not just possess or view child pornography; he created it,
and he sexually abused his younger brother in the process of doing so. The district court did not
err in giving significant weight to the severity of this conduct, the need to deter Viramontes-
Hernandez—who posed a moderate recidivism risk—from engaging in similar conduct again, and
the need to deter others from engaging in similar conduct.
Nor did the court overlook the mitigation evidence Viramontes-Hernandez presented. The
court’s reasoning at the sentencing hearing evinces its understanding that those who are victims of
child sex abuse often go on to victimize others and that Viramontes-Hernandez’s behavior may
well be a product of the treatment he received as a child. The court also recognized that
Viramontes-Hernandez had taken responsibility for his conduct, understood that his conduct was
wrong, and wanted to change his life, and the court factored all of this into its consideration of the
need for specific deterrence. The court did not abuse its discretion by treating this evidence as
mitigating the severity of the conduct in this case but declining to treat it as so mitigating that it
merited a downward variance from the Guidelines range. The sentence was not substantively
unreasonable.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
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