United States of America v. Edwin A. Velasquez Curuchiche

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0089n.06
No. 17-5566
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWIN A. VELASQUEZ CURUCHICHE,
Defendant-Appellant.
)
)
)
)
)
)
)
)
)
)
)
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE
BEFORE: SILER, BATCHELDER, and DONALD, Circuit Judges.
PER CURIAM. Edwin A. Velasquez Curuchiche appeals his 600-month sentence for
producing child pornography. As set forth below, we affirm Curuchiche’s sentence.
Curuchiche pleaded guilty without a plea agreement to two counts of production of child
pornography in violation of 18 U.S.C. § 2251(a), which makes it a crime to produce a visual
depiction of a minor engaging in sexually explicit conduct “if that visual depiction was produced
or transmitted using materials that have been mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means, including by computer.” According to the
presentence report, Curuchiche, a citizen of Guatemala residing in the United States illegally,
befriended a family living near him. On two occasions, Curuchiche sneaked into the family’s
home at night, touched and digitally penetrated the six-year-old daughter’s genitals, and made
videos of that sexual conduct. Curuchiche’s total offense level of 42 and criminal history
category of I corresponded to a guidelines range of 360 months to life, which was capped at

-- 1 of 4 --

No. 17-5566
United States v. Velasquez Curuchiche
- 2 -
720 months due to the 30-year statutory maximum for each count. See 18 U.S.C. § 2251(e);
USSG § 5G1.2(d). After considering the factors under 18 U.S.C. § 3553(a), the district court
sentenced Curuchiche to consecutive terms of 300 months of imprisonment on each count.
In this timely appeal, Curuchiche argues that his 600-month sentence is procedurally
unreasonable because the district court failed to address three non-frivolous arguments for
leniency: (1) the relative severity of his conduct, (2) the comparison to state sentences for
similar conduct, and (3) his imminent deportation. Because at sentencing Curuchiche did not
object to the district court’s purported failure to address these arguments when given the
opportunity to do so, we review for plain error, see United States v. Bostic, 371 F.3d 865, 872-73
(6th Cir. 2004), requiring him “to show (1) error (2) that ‘was obvious or clear,’ (3) that ‘affected
[his] substantial rights’ and (4) that ‘affected the fairness, integrity, or public reputation of the
judicial proceedings.’” United States v. Vonner, 516 F.3d 382, 386 (6th Cir. 2008) (en banc)
(quoting United States v. Gardiner, 463 F.3d 445, 459 (6th Cir. 2006)).
The district court “must consider all non-frivolous arguments in support of a lower
sentence.” United States v. Gunter, 620 F.3d 642, 645 (6th Cir. 2010). The district court is not,
however, required to “give the reasons for rejecting any and all arguments by the parties for
alternative sentences.” Vonner, 516 F.3d at 387; see United States v. Odeh, 815 F.3d 968, 983
(6th Cir. 2016) (“[A] sentencing court need not, in a ‘point-by-point’ fashion, respond to each
mitigation argument offered by a defendant.”). On appeal, we must determine whether, based on
the entire sentencing record, “the district court fulfilled [its] obligation” to “conduct a
meaningful sentencing hearing and truly consider the defendant’s arguments.” Gunter, 620 F.3d
at 646.

-- 2 of 4 --

No. 17-5566
United States v. Velasquez Curuchiche
- 3 -
The district court fulfilled that obligation. Both parties referred to sentences imposed in
other cases involving production of child pornography—the government pointing to 50-year and
80-year sentences and Curuchiche pointing to a 27-year sentence. Curuchiche asserted that his
conduct was not the “worst of the worst” and was less severe than the conduct in the case in
which the government agreed to a 27-year sentence. The district court emphasized that the
nature and circumstances of Curuchiche’s offense were “extremely bad,” declining “to engage in
whether or not it’s the worst of the worst.” The district court expressly acknowledged the
parties’ arguments regarding the sentences imposed in other cases and discerned no sentence
disparities in light of the specific facts of Curuchiche’s case. The district court also
acknowledged Curuchiche’s argument that his conduct was more akin to a state sex offense
subject to a lesser penalty than a federal child pornography offense because he did not distribute
the videos. But the offense to which Curuchiche pleaded guilty does not require distribution, and
while the district court recognized that there was no proof of distribution, the court pointed out
that “it’s clear that he was going to use these [videos] and probably did use them for his own
personal sexual gratification.”
Curuchiche further argued for consideration of his imminent deportation in fashioning an
appropriate sentence. The district court acknowledged that Curuchiche sought a 15-year
mandatory minimum sentence on both counts to run concurrently, followed by deportation. In
addressing the nature and circumstances of Curuchiche’s offense, the district court observed that
the guidelines failed to take into account certain exacerbating facts, such as his unlawful
presence in the United States. This statement indicates that the district court viewed
Curuchiche’s immigration status as warranting a more, rather than less, severe sentence.

-- 3 of 4 --

No. 17-5566
United States v. Velasquez Curuchiche
- 4 -
Curuchiche has failed to demonstrate that the district court erred, let alone plainly erred.
The record reflects that the district court conducted a meaningful sentencing hearing and
considered Curuchiche’s arguments. Accordingly, we AFFIRM Curuchiche’s sentence.

-- 4 of 4 --