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 wit *750 nesses 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,
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,
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,
We thus affirm Smith’s conviction and sentence.
Notes
The Honorable Richard E. Dorr, United States District Judge for the Western District of Missouri.