                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 05-4354
                                   ___________

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      * Appeal from the United States
      v.                              * District Court for the District of
                                      * South Dakota.
Archie Alexander Mack,                *
                                      *
            Defendant-Appellant.      *
                                 ___________

                             Submitted: June 12, 2006
                                Filed: June 22, 2006
                                 ___________

Before BYE, LAY, and RILEY, Circuit Judges.
                              ___________

BYE, Circuit Judge.

       Archie Mack pleaded guilty to one count of sexual abuse of a minor (statutory
rape), in violation of 18 U.S.C. § 2243. The district court1 departed upward from the
advisory guideline range of thirty to thirty-seven months of imprisonment and
sentenced Mack to fifty-one months. We affirm.

       Mack was originally indicted on one count of possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(A), and one count of sexual abuse of a minor.

      1
       The Honorable Chief Judge Karen E. Schreier, United States District Court for
the District of South Dakota.
He pleaded guilty only to the possession count, but his advisory guideline range for
this crime would have included the application of a cross-reference, enhancing his
sentence more than either Mack or the government anticipated. As a result, he
withdrew his guilty plea and instead pleaded guilty to the sexual abuse charge, and the
government dismissed the possession charge.

       Mack's conviction was based on an allegedly consensual relationship between
himself, twenty years old at the time of sentencing, and the victim, who was fourteen.
The relationship lasted over one year, and Mack knew the victim's true age. In
January and February 2005, Mack videotaped them engaging in sexual acts on at least
six different occasions, and he later showed the tape to friends. Some portions of the
video were taped in the victim's bedroom adorned with stuffed animals and a Winnie-
the-Pooh motif. Mack also superimposed the subtitle, "A Mack and Baby Girl," on
portions of the tape. This tape was the basis of the possession charge.

        Prior to sentencing, the court filed a notice of intent to depart upward under
United States Sentencing Guideline (U.S.S.G.) § 5K2.21 based on the dismissed
possession count. Mack's advisory guideline range was thirty to thirty-seven months
prior to the § 5K2.21 departure. In determining the appropriate upward departure, the
district court considered what Mack's guideline range would have been had Mack
been sentenced under the possession guideline without the cross-reference. Under this
second, hypothetical calculation, Mack's guideline range would have been fifty-one
to sixty-three months after including all applicable enhancements. The district court
ultimately imposed a fifty-one month sentence, representing a fourteen month
departure under § 5K2.21 from Mack's original guideline range.

       We review the district court's application of the guidelines de novo, United
States v. Spudich, 443 F.3d 986, 987 (8th Cir. 2006), and its factual findings for clear
error. United States v. Davidson, 437 F.3d 737, 739-40 (8th Cir. 2006). The district
court must first determine the defendant's advisory guideline range, United States v.

                                          -2-
Lazenby, 439 F.3d 928, 931 (8th Cir. 2006) (citing United States v. Haack, 403 F.3d
997, 1002-03 (8th Cir. 2005), and we review the ultimate sentence for reasonableness
in accordance with the factors listed in 18 U.S.C. § 3553(a). United States v. Bueno,
443 F.3d 1017, 1024 (8th Cir. 2006).

        The parties do not dispute the district court correctly calculated Mack's advisory
guideline range. Once the court determined the range, it discussed the § 3553(a)
factors and held no downward departures were warranted. It then determined an
upward departure was warranted based on Mack's possession of child pornography,
i.e., the video he produced with the victim. See U.S.S.G. § 5K2.21. In sentencing
Mack to fifty-one months, the court articulated its reasons for departing. Notably, the
court stated the "possession of child pornography that was produced by the defendant"
was not "taken into consideration" in Mack's first guideline range. The court found
the videotape was disrespectful and degrading not only to the victim "but to everyone
that would ever see that videotape. The problem with the videotape is once it's made,
it's very hard to control . . . . It was shown to some of your friends, . . . and every
single time someone looks at that videotape, [the victim] is harmed again." The court
was also struck by Mack engaging in sexual activity with a girl young enough to have
Winnie-the-Pooh decor in her bedroom and who looked embarrassed and ashamed
during parts of the video.

       Mack suggests the departure would only be warranted if the victim suffered
severe psychological distress, citing United States v. Yellow, 18 F.3d 1438 (8th Cir.
1994). Our decision in Yellow, however, is inapposite because Yellow concerned a
departure under U.S.S.G. § 5K2.3 for psychological injury to the victim, not U.S.S.G.
§ 5K2.21. Because the uncharged conduct, i.e., possession of child pornography
produced by Mack, is related to the underlying crime, the district court did not err in
departing upwards. See United States v. Rogers, 423 F.3d 823, 828 (8th Cir. 2005)
(stating the uncharged conduct should relate in some way to the charged conduct).
Additionally, a factual basis exists regarding Mack's actual possession of the child

                                           -3-
pornography. See United States v. Schwalk, 412 F.3d 929, 933 (8th Cir. 2005)
(upholding an enhancement under § 2K2.21 because the district court did not clearly
err in determining the uncharged conduct actually occurred).

       Mack also argues the district court "double counted" the fact he and the victim
engaged in sexual intercourse on multiple occasions. When departing under § 5K2.21,
the district court cannot enhance a sentence based on a factor already counted in the
original sentence. United States v. Ademi, 439 F.3d 964, 966-67 (8th Cir. 2006). His
argument, however, is without merit because the district court relied on different
conduct when determining Mack's original and hypothetical sentences. Mack's
original guideline sentence included an enhancement for engaging in sexual
intercourse with the victim on multiple occasions. When the district court calculated
a hypothetical guideline range for the possession count, this calculation included an
enhancement for engaging in a pattern of exploitation. Although the district court
relied on the content of the videotape as evidence Mack repeatedly violated the
statutory rape law, the district court did not err in also relying on the videotaping itself
when considering the extent of the departure ultimately made pursuant to § 5K2.21.

       Finally, Mack claims his sentence is unreasonable. Although the departure
made under § 5K2.21 constitutes an enhancement of between 38% and 66% of his
advisory guideline sentence, the district court adequately considered and discussed the
§ 3553(a) factors. Our precedent requires: "Once the guidelines sentence is
determined, the court shall then consider all other factors set forth in § 3553(a) to
determine whether to impose the sentence under the guidelines or a non-guidelines
sentence." United States v. Wintermute, 443 F.3d 993, 1005 (8th Cir. 2006) (quoting
Haack, 403 F.3d at 1003). After this decision is made, the district court shall then
state its reasons in open court for imposing the ultimate sentence. Id. (citing 18
U.S.C. § 3553(c)). In the instance case, the district court followed this procedure, and
after reviewing the record as a whole, we find the sentence reasonable. See United



                                            -4-
States v. Rivera, 439 F.3d 446, 448 (8th Cir. 2006) (noting the record must be
sufficiently developed below to allow meaningful review).

      Accordingly, we affirm Mack's sentence.
                     ______________________________




                                     -5-
