                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3626
                                   ___________

United States of America,               *
                                        *
                   Appellee,            * Appeal from the United States
                                        * District Court for the Western
      v.                                * District of Missouri.
                                        *
Gary Lee Smith,                         *    [PUBLISHED]
                                        *
                   Appellant.           *
                                   ___________

                             Submitted: April 13, 2004

                                  Filed: May 5, 2004
                                   ___________

Before LOKEN, Chief Judge, RICHARD S. ARNOLD and FAGG, Circuit Judges.
                              ___________

PER CURIAM.

       Gary Lee Smith, a commercial photographer, took sexually explicit
photographs of a nude twelve-year-old girl. He later distributed the photographs over
the Internet and by mail. The Government charged Smith with production of child
pornography, interstate transportation of child pornography, and reproduction of child
pornography for interstate distribution. See 18 U.S.C. §§ 2251(a), 2252(a)(1),
2252(a)(2). Smith retained counsel in May 2002. On the first day of Smith’s bench
trial eleven months later, Smith asked the district court* for the first time to remove
his attorney for ineffective assistance. Smith also requested a continuance. The court
denied Smith’s requests. At the conclusion of Smith’s bench trial, Smith was
convicted. Before sentencing, the Government filed a motion for an upward
departure alleging Smith’s criminal history was understated and his guideline
calculation underestimated his risk of recidivism. After hearing the testimony of
several witnesses at the sentencing hearing, the district court agreed. In a written
statement of reasons for departing upward, the district court specified it added two
criminal history levels because Smith’s otherwise applicable criminal history category
understates his past criminal conduct and his likelihood of re-offending. Thus, the
district court increased Smith’s criminal history category from II to IV. With a total
offense level of 33, Smith’s sentencing range was 188-235 months. The district court
sentenced Smith to 235 months in prison.

       Smith first contends the district court committed error in departing upward at
sentencing. We review de novo whether the district court based its departure on a
permissible factor, review the factual findings supporting the departure for clear error,
and review the reasonableness of the departure for abuse of discretion. United States
v. Long Turkey, 342 F.3d 856, 859-60 (8th Cir. 2003). In this case, the district court
based its departure on a permissible factor. Section 4A1.3(a)(1) of the sentencing
guidelines provides for upward departures when “reliable information indicates that
the defendant’s criminal history category substantially under-represents the
seriousness of the defendant’s criminal history or the likelihood that the defendant
will commit other crimes.” Section 4A1.3(a)(2) specifies the types of information
forming the basis for an upward departure, including earlier sentences not used in
computing the criminal history category and earlier similar adult criminal conduct not
resulting in a criminal conviction. At the sentencing hearing, Government witnesses


      *
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.

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testified about Smith’s production and attempted production of child pornography
involving victims other than the trial victim, both before and after the trial victim’s
ordeal. One of the other victims testified Smith took sexually explicit photographs
of her when she was fifteen and tried to engage her in sexual activity. The victim was
corroborated by the photographs Smith had taken of her. None of this conduct was
taken into account in Smith’s initial criminal history category. The district court did
not commit clear error in crediting the victim’s testimony and finding Smith engaged
in the uncharged criminal conduct. Further, Smith had a conviction that was too old
to be counted for criminal history purposes. Contrary to Smith’s assertion, the district
court adequately specified the reasons for the departure in its written statement of
reasons attached to the judgment. See United States v. Aguilar-Lopez, 329 F.3d 960,
963 (8th Cir. 2003) (similar statement of reasons sufficient to allow review of
departure decision). The district court did not abuse its discretion in departing
upward two criminal history levels to account for the uncharged conduct.

       Next, Smith contends his 1998 Arkansas conviction for first-degree sexual
abuse, Ark. Code Ann. § 5-14-108 (Michie 1997), was not one relating to child
exploitation, and thus did not trigger an enhanced statutory minimum sentence of
fifteen years. Under the statute in effect at the time of Smith’s conviction, 18 U.S.C.
§ 2251(d) (2000), the basic statutory minimum sentence was ten years, but if the
defendant had one earlier conviction under certain federal laws or “under the laws of
any State relating to the sexual exploitation of children,” the statutory minimum
sentence was fifteen years. Smith does not contest that his victim in the Arkansas
case was fifteen years old. Likewise, Smith does not argue or cite authority for the
proposition that the district court could not look behind the elements of his state
offense to consider the age of his victim. Compare United States v. Galo, 239 F.3d
572, 582 (3d Cir. 2001) (district court may focus only on statutory definitions of
earlier convictions in determining whether defendant is subject to § 2251(d)
enhancement), with United States v. Rezin, 322 F.3d 443, 447-49 (7th Cir. 2003)
(rejecting Galo and holding that when indictment and judgment, read in light of the

                                          -3-
statute of conviction, do not deny some fact that is relevant to enhancement and the
fact is uncontested or uncontestable, district court may use the fact–age of the
victim–in deciding whether the defendant has an earlier conviction relating to abusive
sexual conduct involving a minor warranting enhancement under § 2252(b)(2)).

       Instead, Smith argues only that the term “sexual exploitation of children” is
limited to pornography or criminal sexual conduct captured in visual depictions. We
reject this argument. Although the term “sexual exploitation of children” is not
defined in the statute, the term unambiguously refers to any criminal sexual conduct
with a child. By its very nature, any criminal sexual conduct with a child takes
advantage of, or exploits, a child sexually. The conduct need not be photographed
to qualify. In addition, the federal crimes specified in § 2251(d) as triggering the
enhancement are not limited to offenses involving pornography or visual depictions.
Accordingly, we conclude the district court properly applied the § 2251(d)
enhancement to Smith.

       Last, the district court did not abuse its discretion in denying Smith’s last-
minute request for a new attorney and a continuance from trial. See United States v.
Barrow, 287 F.3d 733, 738 (8th Cir. 2002); United States v. Yockel, 320 F.3d 818,
827 (8th Cir. 2003). Any claims of ineffective assistance are better addressed in
collateral proceedings, rather than on direct appeal. United States v. Pherigo, 327
F.3d 690, 696 (8th Cir. 2003).

      We thus affirm Smith’s conviction and sentence.
                     ______________________________




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