PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 06-4987

SEAN CHRISTOPHER OSBORNE,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Virginia, at Abingdon.

James P. Jones, Chief District Judge.

(1:06-cr-00025-JPJ)

Argued: October 31, 2007

Decided: January 29, 2008

Before MICHAEL, KING, and DUNCAN, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in

which Judge Michael and Judge Duncan joined. 

COUNSEL

ARGUED: Jay H. Steele, Lebanon, Virginia, for Appellant. Zachary

T. Lee, Special Assistant United States Attorney, OFFICE OF THE

UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.

ON BRIEF: John L. Brownlee, United States Attorney, Roanoke,

Virginia, for Appellee.
OPINION

KING, Circuit Judge: 

Sean Christopher Osborne appeals from his conviction for conspiring to commit the November 3, 2005 armed robbery of a Walgreens

pharmacy in Bristol, Virginia, and from his sentence on the conspiracy offense and two other crimes. He contends that the district court

erred in denying his motion for judgment of acquittal on the conspiracy offense, in that there was insufficient evidence on which to find

that he entered into an agreement with his indicted coconspirator,

Brian David McCrae, to rob the pharmacy. Additionally, Osborne

asserts that the court erred in calculating his Sentencing Guidelines

range — first, by enhancing his offense level for abducting two pharmacy employees to facilitate the commission of the robbery and his

unimpeded escape from the scene, and, second, in assigning him a

criminal history point for a prior shoplifting sentence. As explained

below, we affirm.

I.

A.

On April 4, 2006, a grand jury in the Western District of Virginia

indicted Osborne and McCrae on three counts: (1) conspiracy to rob

a pharmacy, in contravention of 18 U.S.C. § 2118(d) (the "conspiracy

offense"); (2) armed robbery of a pharmacy, in violation of 18 U.S.C.

§ 2118(a) and (c)(1) (the "robbery offense"); and (3) possession with

intent to distribute OxyContin, in contravention of 21 U.S.C.

§ 841(a)(1) and (b)(1)(C) (the "drug offense").1 On June 21, 2006,

1The conspiracy and robbery offenses were charged under § 2118 of

Title 18, also known as the Controlled Substance Registrant Protection

Act of 1984. Subsection (d) of that statute makes it a crime to conspire

with another person to violate subsection (a). See 18 U.S.C. § 2118(d)

(delineating offense where "two or more persons conspire to violate subsection (a) . . . of this section and one or more of such persons do any

overt act to effect the object of the conspiracy"). Subsection (a), in turn,

makes it a crime to 

2 UNITED STATES v. OSBORNE
Osborne pleaded guilty to the robbery and drug offenses. That same

day, a two-day jury trial began for Osborne (on the conspiracy offense

only) and McCrae (on all three offenses).

1.

a.

The evidence adduced by the Government at trial established that,

at the time of the November 3, 2005 robbery, Osborne and McCrae

resided together in Washington County, Virginia, with Osborne’s girlfriend, Michelle Sisto; Osborne’s fourteen-year-old son, whom we

refer to as "Sean Jr."; and Osborne and Sisto’s two younger children.

Osborne and McCrae had histories of drug and alcohol abuse, and

take[ ] or attempt[ ] to take from the person or presence of

another by force or violence or by intimidation any material or

compound containing any quantity of a controlled substance

belonging to or in the care, custody, control, or possession of a

person registered with the Drug Enforcement Administration

[where] (1) the replacement cost of the material or compound to

the registrant was not less than $500, (2) the person who engaged

in such taking or attempted such taking traveled in interstate or

foreign commerce or used any facility in interstate or foreign

commerce to facilitate such taking or attempt, or (3) another person was killed or suffered significant bodily injury as a result of

such taking or attempt. 

Id. § 2118(a). Subsection (c)(1) provides enhanced penalties for

"[w]hoever in committing any offense under subsection (a) . . . assaults

any person, or puts in jeopardy the life of any person, by the use of a

dangerous weapon or device." Id. § 2118(c)(1). 

The drug offense — which involved OxyContin, a brand name for a

drug containing the Schedule II controlled substance oxycodone, see

United States v. Alerre, 430 F.3d 681, 684 n.2 (4th Cir. 2005) — was

charged under § 841 of Title 21. Subsection (a)(1) of that statute criminalizes, inter alia, possession with intent to distribute a controlled substance. See 21 U.S.C. § 841(a)(1). Subsection (b)(1)(C) provides the

penalties for an offense involving a Schedule II controlled substance. See

id. § 841(b)(1)(C). 

UNITED STATES v. OSBORNE 3
there are indications that Osborne (and perhaps McCrae) was under

the influence of such substances on November 3, 2005. That evening,

between 7:00 and 7:30 p.m., Osborne, McCrae, and Sean Jr. left their

home in Osborne’s minivan and drove to the nearby Blountville, Tennessee residence of Osborne’s brother, Jay. Sean Jr. testified that,

after their arrival, Osborne and McCrae spoke with Jay in his garage,

while Sean Jr. remained in the van. A short time later, Osborne and

McCrae returned to the vehicle. Osborne then drove the van back to

Virginia, with McCrae in the front passenger seat and Sean Jr. in the

seat behind that of his father. Their return trip took place, in part,

northbound on Interstate 81. 

Although their home was located on Lee Highway immediately off

Virginia’s Exit 10 of Interstate 81, Osborne took Exit 3 (seven miles

short of Exit 10, and just north of the state line) into Bristol, Virginia.

When the van came to a halt at a stop sign at Lee Highway and Euclid

Avenue, Sean Jr. observed Osborne pulling up the hood of his

sweatshirt around his face and tying it tightly to secure it there. Sean

Jr. also overheard McCrae "saying something about jumping the

counter," and Osborne responding "‘Okay, okay.’" J.A. 21.2 Sean Jr.

did not hear anything else said between Osborne and McCrae during

the drive. Sean Jr. was listening to rock music through headphones,

and the radio of the van was playing different rock music so loud that

Sean Jr. could hear it over his own music. 

According to Sean Jr., Osborne drove the van to the Walgreens

pharmacy, which was located at the intersection of Lee Highway and

Valley Drive. Rather than parking the van in the Walgreens parking

lot, Osborne parked it on a nearby street, obscuring it behind a group

of trees next to the Walgreens property. After Osborne and McCrae

exited the vehicle, McCrae walked away from the van toward the

Walgreens building and out of Sean Jr.’s sight. Meanwhile, Osborne

again tightened the hood of his sweatshirt around his face. Sean Jr.

asked Osborne "what he was doing, and [Osborne] said, ‘Something

I ain’t done before.’" J.A. 24. Sean Jr. then asked Osborne "if he was

going to rob the store, and [Osborne responded], ‘Yeah.’" Id. Osborne

drew the hood of his sweatshirt even tighter, put on a pair of sun2Our citations to "J.A. ___" refer to the contents of the Joint Appendix

filed by the parties in this appeal. 

4 UNITED STATES v. OSBORNE
glasses, and started walking toward the Walgreens building. Sean Jr.

immediately left on foot for a friend’s house, because he "didn’t want

to be there when it was happening." Id. at 25-26.

b.

The Walgreens building was divided into a store area and a pharmacy section. Customers entered the Walgreens building into the

store area. A photo counter and a cash register were located at the

front of the store area, beyond which was a series of aisles containing

products for sale such as cosmetics and over-the-counter medications.

Beyond these aisles (at the back of the premises), customers would

finally reach the pharmacy section. Customers were assisted by pharmacy employees at a counter separating the store area from the pharmacy section. Pharmacy employees entered the pharmacy section

through a secured door (unlocked via keypad) intended to keep out

unauthorized persons, and could view customers approaching the

pharmacy counter through a glass window. 

Osborne entered the Walgreens building, robbed the pharmacy, and

then left the premises, all between 9:30 and 10:00 p.m. Keri Sword,

a pharmacist registered by the Drug Enforcement Administration to

distribute controlled substances, and Amanda Mabe, a pharmacy technician, were working in the pharmacy section; other employees were

present in the store area. While Sword and Mabe were assisting pharmacy customers and preparing to close for the night, Mabe noticed

Osborne (still wearing his hood and sunglasses) speaking with an

assistant store manager in the store area near the pharmacy section.

The assistant manager was showing Osborne some latex gloves that

were for sale. Some minutes later, Osborne approached the pharmacy

counter and told Mabe that he had a question for the pharmacist.

Mabe informed Sword that Osborne had a question for her, and

Sword went to the counter to speak to Osborne. Osborne stated that

he had a severe earache, and he asked Sword to show him an overthe-counter medication that he could take for it. Sword then left the

pharmacy section through the secured door, intending to show

Osborne where the ear medications were located in the store area. 

Osborne stopped Sword just outside the secured door, telling her

that he needed OxyContin for his grandmother who could not afford

UNITED STATES v. OSBORNE 5
that medication after losing her insurance. Osborne then moved his

hands inside the front pouch pocket of his sweatshirt, pulling his right

hand back just far enough to show Sword that he had a knife. Sword

could see the brown handle of the knife, as well as a portion of its silver blade, which she estimated was two to three inches thick at the

base. In Sword’s words, she was "[a]bsolutely terrified" when she saw

the knife. J.A. 58. Thereafter, Sword advised Osborne that she "would

get whatever he wanted from the pharmacy," and Osborne indicated

that he wanted 20-milligram tablets of OxyContin, as well as Valium

tablets. Id. at 59. Sword then turned to re-enter the pharmacy section

to get the specified drugs for Osborne, and Osborne followed her

through the secured door. As Sword walked through the pharmacy

section to the narcotics safe, Osborne admonished her not to set off

any alarms and she assured him that there were none. Sword then

opened the narcotics safe with her keys, removed the three bottles

(two full and one partially depleted) of OxyContin 20-milligram tablets stored therein, confirmed with Osborne that the generic equivalent of Valium was acceptable to him, and then removed the Valiumequivalent tablets from the safe. 

At that point, Osborne was speaking to Mabe, who testified that

she knew as soon as Osborne entered the restricted pharmacy section

with Sword "that something was going on." J.A. 79. Once she heard

Osborne warning Sword not to set off any alarms, Mabe had placed

her hands on the counter and stared straight ahead (as she had been

trained to do by Walgreens). While Sword was removing drugs from

the narcotics safe, Osborne walked over to Mabe and talked to her

about committing the robbery for his grandmother, asserting "that he

hated to do this" and that "he wasn’t a violent person." Id. at 80.

Sword then handed Osborne the drugs that he had demanded — numbering 224 OxyContin 20-milligram tablets and 407 Valiumequivalent tablets — which had a total replacement value of $629. 

According to Sword, Osborne then stated to Mabe and her "that we

were never going to get a good picture of him because of his sun

glasses, and the way the hood was pulled up on his sweat shirt, and

also that there would be no fingerprints because he had gloves on his

hands [i.e., latex gloves taken from the store area], and that we

weren’t going to be able to catch him." J.A. 60. After making these

assertions and receiving no response from Sword and Mabe, Osborne

6 UNITED STATES v. OSBORNE
looked directly at Sword and instructed her to "‘[w]alk me out.’" Id.

Sword complied with Osborne’s directive, walking toward the

secured door of the pharmacy section with him "[b]ecause he had a

knife and he told me to. And I was too scared not to do what he

asked." Id. At first, Mabe remained in the pharmacy section with her

hands on the counter. When Osborne and Sword reached the secured

door, however, Osborne directed Sword to tell Mabe to come with

them; both Sword and Mabe complied.3

Sword described the subsequent walk from the pharmacy section

through the store area as follows:

[Osborne] was walking behind us, and [Mabe and I] were

side by side in front of him. And we started to exit, and go

straight down the aisle toward the front of the store toward

our photo counter. We got to about the middle of the store

where the aisleway split, and [Osborne] told us to turn, and

not to go straight. So, we turned through the middle of the

store to walk across the store. We got to the end, and we

turned left to walk toward the front door. We got to our cosmetics area, and [Mabe] and I stopped. We were close to the

door, and . . . there were some customers at the front register, and my assistant manager walked by us, and [Osborne]

started to come up around us to get a little ahead of us, and

he told us to walk outside with [him]. And we did advance

a little further toward the front door, and I believe he told

us again to come outside, and I told him no, that this was

far enough, and he did walk on outside the front door, and

he stopped and turned and looked at us, and he motioned for

us to come outside, and I just shook my head no, and finally

he turned and walked away. 

3Like Sword, Mabe complied with Osborne’s instructions "[b]ecause

he had a weapon." J.A. 81. Although Mabe did not see a weapon, she

assumed Osborne possessed one because he had his hands in his

sweatshirt pocket, and because she knew that Sword would not have

allowed Osborne in the pharmacy section if she and Mabe had not been

in danger. 

UNITED STATES v. OSBORNE 7
J.A. 61-62. Thereafter, Sword closed the front door of the Walgreens

building and locked it.4

c.

Osborne arrived home — with McCrae (whose whereabouts during

the robbery are unknown) — shortly after 10 p.m. At the time, Sisto

was in the living room sitting on the couch, and her and Osborne’s

two young children were sleeping in a bedroom. According to Sisto,

McCrae "came in the door first, and kind of shook his head at me."

J.A. 88. McCrae’s conduct prompted Sisto to ask, "‘What?,’" to

which McCrae answered, "‘Nothing.’" Id. Undeterred, Sisto said,

"‘No, please tell me what.’" Id. All McCrae said in response was,

"‘It’s not good, and I’m not telling you anything else.’" Id. McCrae

then went into the kitchen.

Thereafter, Osborne entered the house, and Sisto followed him into

the dining room, peppering him with questions about where he and

McCrae had been for the past three hours, and where they had left

Sean Jr. After Osborne claimed that he could not recall what happened to Sean Jr., McCrae was pulled into the conversation in the dining room, and claimed that he and Osborne had driven Sean Jr. to a

friend’s house. Sisto and McCrae then returned to the living room,

and Osborne went into the kitchen, where Sisto saw him handling

beer mugs in which he had routinely hidden drugs and other things

from the children. 

4Notably, Sword testified that, at Osborne’s direction, she had passed

through the front door, taking at least one step outside of the Walgreens

building. See J.A. 68 (explaining that she stepped through the door

because Osborne gestured her out, and that she "did not return back

through the door until [Osborne] turned to walk away"). The record

reflects that Sword’s testimony was corroborated at trial by surveillance

camera footage. The testimony of Mabe, however, lacked any reference

to Sword stepping through the door to the outside of the Walgreens

building. See id. at 81 (stating that when Osborne went outside, she and

Sword stopped at the door, and then Osborne "asked us to come outside

a couple of times. And [Sword said] no, and finally she [said], ‘No, this

is far enough,’ and she lock[ed] the door and shut[ ] it"). 

8 UNITED STATES v. OSBORNE
Sisto subsequently spotted Osborne making a call on his cell phone

and, still concerned about what had transpired that night, followed

him through the house in an effort to "gauge from his conversation

where he had been." J.A. 89. Sisto overheard Osborne telling the person at the other end of the line "that it was in their best interests to

come to the house . . . and that he needed a point, which to me meant

needle." Id. Sisto took the phone from Osborne and threw it against

a wall. She asked Osborne again "where he had been and what he had

done, that if police officers were going to be showing up at the door

and our children were there asleep I needed to know what he had

done." Id. Osborne told Sisto, "‘Don’t worry about it; Christmas is

taken care of,’ and that whatever he had done was illegal." Id. Furious, Sisto announced that she was leaving, packed clothes, and awakened her daughter. As Sisto passed through the kitchen, Osborne

pushed her into some shelves, and Sisto pushed him back. Sisto then

overturned the beer mugs, spilling out pill bottles (identified by other

witnesses as those stolen from the Walgreens pharmacy) onto the

floor. She asked Osborne, "‘What are these?’" Osborne grabbed Sisto

by the neck, carried her into the dining room, and threw her on a

table. Sisto fled the house with her daughter, drove some three miles

to a Wal-Mart store, and realized upon her arrival there that her son

remained at the house with Osborne. Sisto called the police from her

car, and officers met her in the Wal-Mart parking lot.5

d.

Officers from both Bristol’s police department and Washington

County’s sheriff’s department went to the Osborne/McCrae/Sisto residence to follow up on Sisto’s allegations of domestic assault, as well

as to investigate Osborne and McCrae in connection with the Walgreens robbery. Osborne answered the door and was immediately

arrested for domestic assault. Officers then saw McCrae disappearing

into the bedroom area of the house, and ordered him to the entryway.

One officer spotted a bulge in the left pocket of McCrae’s pants, and

performed a pat-down search of McCrae for weapons. Upon patting

5According to Sisto, she did not see McCrae in the house between the

time she overheard Osborne’s cell phone conversation and the time she

fled in her car. She believed that McCrae had left the premises, although

she had not seen him do so. 

UNITED STATES v. OSBORNE 9
the bulge in McCrae’s pants pocket, the officer identified it as a bag

of pills, rather than as a weapon. The bag was removed from

McCrae’s pocket, and the ninety-nine pills contained therein were

determined to be OxyContin 20-milligram tablets. A second bag of

pills (containing twenty-one OxyContin 20-milligram tablets) was

subsequently recovered from the pocket of a shirt found in the dining

room. McCrae acknowledged to officers that the shirt belonged to

him. Other items recovered from the house included latex gloves,

three knives, and pill bottles for OxyContin 20-milligram tablets identical to those stolen from the Walgreens pharmacy.

2.

At the close of the Government’s case-in-chief during the first day

of trial, Osborne made a motion, pursuant to Federal Rule of Criminal

Procedure 29, for judgment of acquittal on the conspiracy offense. See

Fed. R. Crim. P. 29(a) (providing that "[a]fter the government closes

its evidence or after the close of all the evidence, the court on the

defendant’s motion must enter a judgment of acquittal of any offense

for which the evidence is insufficient to sustain a conviction"). In support of his Rule 29 motion, Osborne asserted that "[t]he Government

has produced no evidence that there was an agreement between these

two parties [Osborne and McCrae] to commit that crime." J.A. 145.

The district court denied Osborne’s motion from the bench.

The following morning, June 22, 2006, the jury was advised that

neither Osborne nor McCrae would be presenting further evidence.

Later that day, the jury returned a guilty verdict on all of the charges

before it — that is, against Osborne on the conspiracy offense, and

against McCrae on the conspiracy, robbery, and drug offenses.

Osborne subsequently renewed his Rule 29 motion, which, on August

24, 2006, was again denied by the district court. See Fed. R. Crim. P.

29(c)(1)-(2) (authorizing defendant to renew his motion for judgment

of acquittal following return of guilty verdict, and court to set aside

verdict and enter acquittal).6

6McCrae also unsuccessfully sought judgment of acquittal with respect

to the charges against him, moving for such relief both during and after

the trial, on the same basis asserted by Osborne, as well as on additional

grounds. 

10 UNITED STATES v. OSBORNE
B.

Following the trial, Osborne’s presentence investigation report (the

"PSR") was prepared, calculating an advisory sentencing range under

the 2005 edition of the Sentencing Guidelines. The PSR grouped the

conspiracy offense with the robbery and drug offenses to which

Osborne had pleaded guilty, and calculated a total offense level of 27

and a criminal history category of III. An addendum to the PSR notes

the Government’s objection to the PSR’s failure to apply a four-level

enhancement to Osborne’s offense level for the abduction of Walgreens employees Sword and Mabe during the robbery. See USSG

§ 2B3.1(b)(4). 

The district court conducted a sentencing hearing for Osborne, as

well as McCrae, on September 18, 2006. During the hearing, the court

ruled (over Osborne’s objection) that the abduction enhancement was

applicable to the calculation of Osborne’s total offense level. The

court ultimately assigned him an offense level of 30.7 The court also

adopted the PSR’s calculation of a criminal history category of III,

based on an assessment of four criminal history points, including one

point (to which Osborne also objected) for a prior shoplifting sentence. The offense level of 30 and the criminal history category of III

resulted in a Sentencing Guidelines range of 121 to 151 months. The

court then sentenced Osborne at the high end of the advisory Guidelines range, to 151 months of imprisonment. Osborne timely noted

this appeal, in which he challenges his conviction on the conspiracy

offense and his within-Guidelines sentence.8

7The court reached the offense level of 30 by adopting the following

recommendations of the PSR (in addition to imposing the four-level

abduction enhancement): a base offense level of 20, see USSG

§ 2B3.1(a); a one-level enhancement for stealing controlled substances,

see id. § 2B3.1(b)(6); and a two-level enhancement for obstruction of

justice, see id. § 3C1.1. The court rejected, however, the PSR’s recommendation for a four-level enhancement for "using" a dangerous weapon

during the robbery, see id. § 2B3.1(b)(2)(D), opting instead (at Osborne’s

insistence) for a three-level enhancement for "brandishing" the weapon,

see id. § 2B3.1(b)(2)(E). 

8McCrae also filed an appeal, in which he unsuccessfully challenged

the district court’s denial of his motion to suppress evidence of the pills

UNITED STATES v. OSBORNE 11
II.

A.

With respect to his conviction on the conspiracy offense, Osborne

maintains that the district court erred in refusing to enter a judgment

of acquittal pursuant to Federal Rule of Criminal Procedure 29. We

review de novo a district court’s denial of a motion for judgment of

acquittal. See United States v. Ryan-Webster, 353 F.3d 353, 359 (4th

Cir. 2003). We are obliged to sustain a guilty verdict that, viewing the

evidence in the light most favorable to the prosecution, is supported

by "‘substantial evidence.’" United States v. Burgos, 94 F.3d 849, 862

(4th Cir. 1996) (en banc) (quoting Glasser v. United States, 315 U.S.

60, 80 (1942)). We have defined "substantial evidence" as "evidence

that a reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendant’s guilt beyond a reasonable

doubt." Id.

Osborne contends on appeal — as he did in the district court —

that there was insufficient evidence on which a reasonable jury could

find that he and McCrae entered into an agreement to rob the Walgreens pharmacy. See 18 U.S.C. § 2118(d) (establishing crime where

"two or more persons conspire" to rob pharmacy); see also Iannelli

v. United States, 420 U.S. 770, 777 n.10 (recognizing "agreement [as

being] the essential element of the crime" of conspiracy). In rejecting

Osborne’s motion for judgment of acquittal, the district court

observed that a reasonable jury was entitled to find Osborne guilty of

the conspiracy offense based on the following evidence: Osborne and

McCrae were together immediately before and immediately after the

robbery; shortly before the robbery, during the drive through Bristol

toward the Walgreens pharmacy, Sean Jr. overheard McCrae "saying

found in his pants pocket during the pat-down search on the night of the

robbery. See United States v. McCrae, No. 06-4988, 2007 WL 2122103

(4th Cir. July 25, 2007). McCrae did not otherwise contest his convictions or his 60-month sentence. Notably, the sentencing court did not

apply the abduction enhancement to McCrae, because he was not present

in the Walgreens building during the robbery and could not have reasonably foreseen that Osborne would abduct the pharmacy employees. 

12 UNITED STATES v. OSBORNE
something about jumping the counter," and Osborne responding

"‘Okay, okay,’" J.A. 21; upon returning home just after the robbery,

McCrae responded to Sisto’s inquiries about where he and Osborne

had been by stating, "‘It’s not good, and I’m not telling you anything

else,’" id. at 88; and, later that night, police officers recovered ninetynine stolen OxyContin 20-milligram tablets from the pocket of the

pants McCrae was wearing, and another twenty-one such tablets from

the pocket of a shirt in the dining room that McCrae admitted was his

shirt. Additionally, the evidence reflected that Osborne made preparations for the robbery in McCrae’s presence — including exiting Interstate 81 some seven miles short of home, disguising himself during

the drive (just before McCrae made the "jumping the counter" comment) by tightening the hood of his sweatshirt around his face, and

obscuring his van from view of the Walgreens pharmacy by parking

it on a nearby street behind a group of trees. Notably, Osborne’s preparations for the robbery were so recognizable as such that fourteenyear-old Sean Jr. deduced what his father was about to do. And,

Osborne confirmed to his son that he was preparing to commit the

robbery, thus negating any notion that the robbery was not planned

prior to the time that Osborne entered the Walgreens building. 

Viewed in the light most favorable to the Government, the foregoing evidence — including what reasonably can be construed as

McCrae’s advice to Osborne (in the course of his obvious preparations for the robbery) to "jump[ ] the counter" of the pharmacy —

plainly permits the conclusion that Osborne and McCrae entered into

an agreement to commit the robbery. Indeed, the evidence permits a

finding that McCrae did not (like Sean Jr.) innocently find himself at

the scene of an imminent crime. That is, the fact that Osborne and

McCrae returned home together immediately after the robbery indicates that McCrae stood by knowing the robbery was underway and

was prepared to flee with Osborne posthaste. McCrae’s response to

Sisto’s inquiries about where he and Osborne had been — that "[i]t’s

not good" — can fairly be interpreted as a reference to the robbery.

And, the fact that McCrae shared in the fruits of the robbery, i.e., the

fact that he came into possession that night of 120 of the stolen OxyContin 20-milligram tablets, shows that McCrae was rewarded for

taking a role in the robbery’s commission. 

Osborne urges us to deem this evidence insufficient to prove he

conspired with McCrae to rob the Walgreens pharmacy, essentially

UNITED STATES v. OSBORNE 13
asserting that it is circumstantial, subject to alternative interpretations,

and contradicted by other evidence suggesting that Osborne acted

alone. For example, Osborne points out that the "jumping the counter"

comment overheard by Sean Jr. was simply a "snippet of conversation" without any context, and that the comment may have been "an

attempt to dissuade [Osborne from committing the robbery], McCrae

thinking [Osborne] was blowing hot air, or something different altogether." Br. of Appellant 11. Osborne emphasizes the fact that

McCrae was not seen inside the Walgreens building, and that, in

Osborne’s statements to the pharmacy employees and Sisto that night,

he never referred to committing the robbery with McCrae or anyone

else. Osborne also suggests that, rather than receiving the OxyContin

20-milligram tablets from him as the fruits of a prior agreement to rob

the Walgreens pharmacy, McCrae just as likely stole the pills from

him, bought them from him, or received them from him in exchange

for a post-robbery promise to keep quiet about his conduct that night.

Unfortunately for Osborne, "a conspiracy may be proved wholly by

circumstantial evidence," and "‘may be inferred from a development

and collocation of circumstances.’" Burgos, 94 F.3d at 858 (quoting

Glasser v. United States, 315 U.S. 60, 80 (1942)) (other citations and

internal quotation marks omitted); see also Iannelli, 420 U.S. at 777

n.10 ("The agreement need not be shown to have been explicit. It can

instead be inferred from the facts and circumstances of the case.").

Moreover, as a general proposition, "circumstantial evidence . . . may

be sufficient to support a guilty verdict even though it does not

exclude every reasonable hypothesis consistent with innocence."

United States v. Jackson, 863 F.2d 1168, 1173 (4th Cir. 1989). Properly considered in its totality, the evidence in this case — though circumstantial and susceptible to alternative interpretations — certainly

was adequate and sufficient to support the jury’s conclusion that

Osborne and McCrae entered into an agreement to rob the Walgreens

pharmacy. We therefore affirm Osborne’s conviction on the conspiracy offense.

B.

As for his sentence, Osborne contends that the district court miscalculated his advisory Sentencing Guidelines range by, first, imposing

the four-level abduction enhancement, and, second, assigning him a

14 UNITED STATES v. OSBORNE
single criminal history point for the prior shoplifting sentence. The

Supreme Court has recently held that "courts of appeals must review

all sentences — [including those] inside . . . the Guidelines range —

under a deferential abuse-of-discretion standard." See Gall v. United

States, 128 S. Ct. 586, 590 (2007). The first step in this review

requires us to "ensure that the district court committed no significant

procedural error, such as . . . improperly calculating . . . the Guidelines range." Id. at 597. In assessing whether a sentencing court properly applied the Guidelines, "we review the court’s factual findings

for clear error and its legal conclusions de novo." United States v.

Allen, 446 F.3d 522, 527 (4th Cir. 2006). "On mixed questions of law

and fact regarding the Sentencing Guidelines, we apply a due deference standard in reviewing the district court." United States v. Nale,

101 F.3d 1000, 1003 (4th Cir. 1996).

1.

Osborne maintains that he was not subject to the abduction

enhancement, because he did not, within the meaning of the Guidelines, "abduct" the pharmacy employees during the Walgreens robbery. Such a four-level enhancement is called for under the robbery

guideline "[i]f any person was abducted to facilitate commission of

the offense or to facilitate escape." USSG § 2B3.1(b)(4)(A). The

Guidelines generally define "abducted" as "mean[ing] that a victim

was forced to accompany an offender to a different location." Id.

§ 1B1.1 cmt. n.1(A). And, the Guidelines offer as an example of an

abduction "a bank robber’s forcing a bank teller from the bank into

a getaway car." Id. As our sister circuits have recognized, the abduction enhancement is intended, at least in part, to protect victims

against the additional harm that may result from being forced to

accompany an offender, such as being taken as a hostage during a

robbery or being isolated to prolong a sexual assault. See United

States v. Whooten, 279 F.3d 58, 61 (1st Cir. 2002); United States v.

Saknikent, 30 F.3d 1012, 1013 (8th Cir. 1994). 

Here, the district court concluded that Osborne abducted pharmacy

employees Sword and Mabe within the meaning of the Guidelines, in

that he "intentionally and forcibly moved [them] from their post in the

pharmacy [section] at some distance across the [store area] to the

front door," for the purpose of "facilitat[ing] [his] escape and his comUNITED STATES v. OSBORNE 15
mission of the robbery." J.A. 182.9

 Osborne admits on appeal that he

forced Sword and Mabe to leave the pharmacy section and walk with

him across the store area to the front door of the Walgreens building,

thereby facilitating the robbery and his escape from the scene. He

contends, however, that "[t]he mere movement of victims within the

confines of the store are not what the [Guidelines] define[ ] as abduction," in that the victims were never "moved to a different location."

Br. of Appellant 13-14. In other words, Osborne concedes that — "to

facilitate commission of the offense or to facilitate escape," USSG

§ 2B3.1(b)(4)(A) — "a victim was forced to accompany an offender,"

id. § 1B1.1 cmt. n.1(A), but he disputes that the victim was forced to

accompany the offender "to a different location," id. (emphasis

added). 

There are two aspects to Osborne’s "different location" contention:

first, that movement within the confines of a single building can never

constitute movement "to a different location"; and second, that even

if some movement within the confines of a single building can constitute movement "to a different location," his particular movement of

the pharmacy employees within the Walgreens building was not

movement "to a different location." We address these two aspects of

Osborne’s contention in turn.10

9The district court observed — contrary to the testimony of Sword that

she took at least one step outside of the Walgreens building at Osborne’s

direction, see supra note 4 — that neither Sword nor Mabe "actually

[went] out the front door." J.A. 182. In making this observation, the court

apparently relied on its recollection of the trial evidence, as well as

Osborne’s assertion at the sentencing hearing (which went unchallenged

by the Government) that "[t]he evidence in this case is that neither

[Sword nor Mabe] ever moved outside the confines of the store in which

they were employed." Id. at 162. There is no indication that the court

recalled Sword’s testimony to the contrary or rejected it as unworthy of

belief. Nevertheless, we accept for purposes of our review of the abduction enhancement that Sword remained inside the Walgreens building. 

10As a threshold matter, we recognize that the single example of an

abduction provided in the Guidelines — "a bank robber’s forcing a bank

teller from the bank into a getaway car," USSG § 1B1.1 cmt. n.1(A) —

provides little guidance in our assessment of whether an abduction

occurred here, in that it is a nonanalogous, nonexclusive example of an

abduction with indisputable movement "to a different location." 

16 UNITED STATES v. OSBORNE
a.

We have previously assessed the Guidelines definition of "abducted" in only one published decision, our 1996 decision in United

States v. Nale. See 101 F.3d at 1003. We recognized in that case, as

Osborne acknowledges here, that "even a temporary abduction" —

i.e., one with minimal movement of the victim or that lasts only a

short duration — "can constitute an abduction for purposes of the sentencing guidelines." Id. We were not called upon in Nale, however,

to assess the Guidelines requirement for movement "to a different

location," and particularly whether the abduction enhancement may

be imposed if the victim was moved only within the confines of a single building. 

Such an issue did come before us, however, in a later unpublished

decision, United States v. Coates, 113 F. App’x 520 (4th Cir. 2004).

Coates was convicted of, inter alia, crossing a state line to engage in

a sexual act with a minor under twelve, in contravention of 18 U.S.C.

§ 2241(c). See Coates, 113 F. App’x at 521. The evidence established

that Coates accosted an eleven-year-old girl in the toy department of

a Target store in South Charleston, West Virginia, pretending to be

a security guard who suspected the girl of shoplifting; that Coates led

the girl to the lawn and garden department, where he threatened her

with a knife and sexually assaulted her; that, when customers began

approaching the lawn and garden department, Coates moved the girl

to the men’s clothing department, where he resumed the assault; and

that Coates finally concealed the girl inside a rack of clothing, where

he concluded the assault and left the girl with instructions not to move

until he was out of the store. Id.

In calculating Coates’s Sentencing Guidelines range, the district

court applied a four-level abduction enhancement under the guideline

for criminal sexual abuse, USSG § 2A3.1(b)(5) (2003), which (like

the abduction enhancement contained in the robbery guideline) is

informed by the general definition of "abducted." See Coates, 113 F.

App’x at 521-22. On appeal, Coates made the contention (similar to

Osborne’s position herein) that, because he and the victim of his

assault "remained inside the Target store, he did not force her to go

to a different location, but only shifted the victim from one area to

another within the same general location." Id. at 522 (internal quotaUNITED STATES v. OSBORNE 17
tion marks omitted). We rejected Coates’s contention and affirmed his

sentence, explaining that, "for the [abduction] enhancement to apply,

the victim need not have been moved any great distance." Id.11

Although Coates does not constitute controlling precedent, it persuades us that (as a general proposition) an abduction enhancement

may properly be applied even though the victim remained within the

confines of a single building. We are further persuaded in this regard

by the Fifth Circuit’s decision in United States v. Hawkins, 87 F.3d

722 (5th Cir. 1996). There, the court approved an abduction enhancement under the robbery guideline where two carjacking victims were

moved forty to sixty feet at gunpoint within the same parking area,

despite the defendant’s assertion that the victims "were not forced

from one location to another." Hawkins, 87 F.3d at 726. The court

recognized that — although movement across a threshold from the

inside to the outside of a building, or movement across a property

line, can be deemed movement "to a different location" — the

absence of movement across a building threshold or property line

does not bar the conclusion that movement "to a different location"

occurred. Id. at 727. As the court explained,

in ordinary parlance "location" is frequently used in reference to a single point where a person is standing, or to one

among several rooms in the same structure, or to different

floors in the same building. More to the point, we would not

be prepared to say, for example, that driving one’s vehicle

from one parking space in the parking lot at a shopping center to another space in the same parking lot — possibly dozens or even hundreds of yards apart — is not a movement

to "a different location," simply because no property line or

building threshold has been crossed.

11Without assessing the propriety of the abduction enhancement, the

Supreme Court vacated our Coates decision in the wake of United States

v. Booker, 543 U.S. 220 (2005). See Coates v. United States, 125 S. Ct.

1675 (2005). On reconsideration, without revisiting the abduction

enhancement, we found Booker error and remanded to the district court

for resentencing. See United States v. Coates, 158 F. App’x 432 (4th Cir.

2005). 

18 UNITED STATES v. OSBORNE
Id. Accordingly, the Hawkins court interpreted the term "a different

location," as used in the Guidelines "abducted" definition, "to be flexible and thus susceptible of multiple interpretations, which are to be

applied case by case to the particular facts under scrutiny, not

mechanically based on the presence or absence of doorways, lot lines,

thresholds, and the like." Id. at 728. 

We agree, not only with the Fifth Circuit’s conclusion that movement within the confines of a single building can constitute movement

"to a different location," but also with its flexible, case by case

approach to determining when movement "to a different location" has

occurred. Having so concluded, we turn to the more specific question

of whether the sentencing court properly found that Osborne moved

the pharmacy employees "to a different location" inside the confines

of the Walgreens building.

b.

The district court found that — by forcibly moving pharmacy

employees Sword and Mabe from the pharmacy section (through its

secured door), across the store area (on a winding course through its

aisles), to the front door of the Walgreens building — Osborne moved

the employees "to a different location" within the meaning of the Sentencing Guidelines. The court’s ruling was not erroneous, in that (on

these facts) the pharmacy section and the store area of the Walgreens

building can be deemed to be discrete "locations," each being like

"one among several rooms in the same structure." Hawkins, 87 F.3d

at 727; cf. Coates, 113 F. App’x at 521-22 (approving abduction

enhancement where defendant forcibly moved sexual assault victim

between distinct departments in Target store). Indeed, it is in ordinary

parlance to say that the pharmacy section and the store area are "different locations" within the Walgreens building. This is especially

true in view of the fact that the pharmacy section and the store area

are divided by a counter, as well as a secured door intended to be

passable only by authorized persons via keypad.12

12The Government maintains that, accepting that the pharmacy section

and the store area of the Walgreens building constituted distinct "locations," the district court could have found that Osborne committed the

UNITED STATES v. OSBORNE 19
In challenging the district court’s finding of "a different location,"

Osborne makes several assertions, all of which are unavailing. For

example, he contends that, because he moved Sword and Mabe

toward their co-workers in the front of the store area, he did not

engage in conduct that the abduction enhancement is designed to prevent: the isolation of his victims. See Whooten, 279 F.3d at 61

(observing that "the abduction enhancement is intended, at least in

part, to protect victims against additional harm that may result from

the victim’s isolation"); Saknikent, 30 F.3d at 1013 (describing "the

rationale for the increased penalty" as being that "[a]bduction

increases the gravity of sexual assault or other crimes because the perpetrator’s ability to isolate the victim increases the likelihood that the

victim will be harmed"). In making his assertion in this regard,

Osborne brushes off the fact that, in forcing Sword and Mabe to

accompany him on his exit path through the Walgreens building, he

rendered them potential hostages. In so doing, Osborne engaged in

conduct plainly targeted by the abduction enhancement: keeping victims close by as readily accessible hostages. See Whooten, 279 F.3d

at 61 (recognizing that, by forcing victim outside store and into parking lot at gunpoint, robber "provided himself with a potential hostage"

and thereby placed his victim "at risk of harm," including "dangerous

consequences of isolation" (internal quotation marks omitted)). 

Additionally, Osborne warns us that, if the abduction enhancement

is applicable to him, "any movement of a robbery victim at a robber’s

direction constitutes abduction." Br. of Appellant 14. Osborne’s assertion in this regard, however, is simply untrue. Importantly, to abduct

a victim within the meaning of the Sentencing Guidelines, an offender

must force the victim to accompany him to a different location. Thus,

for example, a bank’s customer service area and its secured vault

might be considered "different locations" within the same building,

but a robber could not be assigned the abduction enhancement for

forcing the movement of a bank teller from the customer service area

first of two abductions when, at the outset of the robbery, he forced

Sword to accompany him from the store area through the secured door

into the pharmacy section. This theory was not, however, the court’s

basis for imposing the abduction enhancement on Osborne, and we therefore do not assess its merits herein. 

20 UNITED STATES v. OSBORNE
to the vault if the robber did not accompany her there. By contrast,

Osborne has conceded that he forced Sword and Mabe to accompany

him as he made his way from the pharmacy section through the store

area to the front door of the Walgreens building, a fact that is pivotal

to our conclusion that the district court properly imposed the abduction enhancement on him.

2.

Finally, Osborne contends that the district court improperly

assessed a single criminal history point for a prior shoplifting sentence, elevating his criminal history category from II to III (and thus

raising the upper end of his advisory Sentencing Guidelines range

from 135 months to 151 months). When calculating criminal history

points under the Guidelines, prior sentences for misdemeanor and

petty offenses are counted, with some limited exceptions. See USSG

§ 4A1.2(c). As relevant here, sentences for certain listed offenses, as

well as "offenses similar to them, by whatever name they are known,

are counted only if (A) the sentence was a term of probation of at

least one year or a term of imprisonment of at least thirty days, or (B)

the prior offense was similar to an instant offense." Id. § 4A1.2(c)(1)

(emphasis added). Among the excepted listed offenses is

"[i]nsufficient funds check." Id.

Over Osborne’s objection, the district court assigned him a criminal history point for a 2005 sentence in a Virginia state court for

shoplifting (or, more specifically, for "alter[ing] a price tag on merchandise valued at less than $200"). See J.A. 224. Osborne was sentenced on the shoplifting offense to a $176 fine and costs. Relying on

section 4A1.2(c)(1)(A) of the Guidelines, Osborne contends that he

should not have received a criminal history point for his prior shoplifting sentence because the underlying offense was similar to the

listed insufficient funds check offense, and because his sentence did

not include any term of probation or incarceration. In drawing similarities between his shoplifting offense and an insufficient funds

check offense, Osborne asserts that Virginia defines each of these

offenses (where it involves less than $200) as "petty larceny." 

We, however, apply an "elements test" in determining whether a

prior offense is similar to an excepted listed offense in section

UNITED STATES v. OSBORNE 21
4A1.2(c)(1) — that is, "we compare ‘the elements of the prior offense

to the elements of the relevant [listed] offense’ . . . to determine

whether they are ‘nearly corresponding’ or ‘resembling in many

respects.’" United States v. Tigney, 367 F.3d 200, 201-02 (4th Cir.

2004) (quoting United States v. Harris, 128 F.3d 850, 854 (4th Cir.

1997)). And, although we may look to state law to define the elements

of the prior offense and (in appropriate circumstances) those of the

relevant listed offense, we look to federal law "for the ultimate determination of whether the two offenses are ‘similar.’" Id. at 202.13

It is undisputed that, with respect to his 2005 shoplifting sentence

in Virginia, Osborne had been convicted under a Virginia statute

making it a crime to, inter alia, "willfully conceal[ ] or take[ ] possession of . . . goods or merchandise of any store," or to "alter[ ] the price

tag or other price marking on . . . goods or merchandise," "without

authority, with the intention of converting [the] goods or merchandise

to his own or another’s use without having paid the full purchase

price thereof." Va. Code Ann. § 18.2-103. By contrast, Virginia

defines its insufficient funds check offense, in relevant part, as follows:

Any person who, with intent to defraud, shall make or draw

or utter or deliver any check, draft, or order for the payment

of money, upon any bank, banking institution, trust company, or other depository, knowing, at the time of such making, drawing, uttering or delivering, that the maker or

drawer has not sufficient funds in, or credit with, such bank,

13We resolved in Tigney to rely on federal law not only "for the ultimate determination" as to whether an offense listed in section

4A1.2(c)(1) is "similar" to the prior offense in question, but also "to

determine the elements of the listed offense." 367 F.3d at 202. In Tigney,

for example, we looked to the federal contempt of court statute to define

the listed contempt of court offense. Id. There is no federal statute that

we can consult here, however, to determine the elements of the listed

insufficient funds check offense. We therefore deem it appropriate in this

case to look to the Virginia Code (as the law invoked by Osborne) for

the definition of the listed insufficient funds check offense. Cf. United

States v. Lopez-Pastrana, 244 F.3d 1025, 1028 n.4 (9th Cir. 2001) (concluding that, "[w]here there is no federal law on point" defining listed

offense, "we may look to either state law or the Model Penal Code"). 

22 UNITED STATES v. OSBORNE
banking institution, trust company, or other depository, for

the payment of such check, draft or order, although no

express representation is made in reference thereto, shall be

guilty of larceny . . . . 

. . . .

Any person making, drawing, uttering or delivering any

such check, draft or order in payment as a present consideration for goods or services for the purposes set out in this

section shall be guilty as provided herein.

Id. § 18.2-181. Thus, under Virginia law, both shoplifting and insufficient funds check offenses may involve the acquisition of a store’s

merchandise without paying the full purchase price thereof. In a shoplifting offense, this is effectuated by concealing the merchandise or

altering the merchandise’s price tag. In an insufficient funds check

offense, however, the merchandise acquisition is carried out by issuing a bad check. Because of these significant differences, the elements

of the shoplifting offense and those of the insufficient funds check

offense cannot be deemed "nearly corresponding" or "resembling in

many respects." Harris, 128 F.3d at 854. As such, the district court

correctly determined that Osborne’s prior shoplifting offense was not

similar to the listed insufficient funds check offense, and the court

properly assessed a single criminal history point for the shoplifting sentence.14

III.

Pursuant to the foregoing, we affirm Osborne’s conviction on the

conspiracy offense, as well as his sentence on the conspiracy, robbery, and drug offenses.

AFFIRMED

14In view of our disposition of this issue, we need not reach the Government’s contention that, pursuant to section 4A1.2(c)(1)(B) of the

Guidelines, Osborne was not entitled to a criminal history point exception for his prior shoplifting sentence, because the underlying shoplifting

offense "was similar to an instant offense," i.e., the robbery offense. 

UNITED STATES v. OSBORNE 23