Wednesday, January 30, 2008

In-Store Movement During Roberry Supports Abduction Enhancement

US v. Osborne: Although the court sets out the facts in great detail, the short version is that Osborne robbed a Walgreen's pharmacy in Virginia. He was driven there, and presumably away, by a co-defendant, McCrae, which whom he discussed the robbery beforehand. During the robbery, Osborne brandished a knife as a means to get the pharmacist and technician to provide him with pills and to accompany him to the front door as he escaped. Both Osborne and McCrae were charged with conspiracy to rob a pharmacy, robbery of a pharmacy, and possession of OxyContin with intent to distribute. Osborne pleaded guilty to the robbery and possession charge, but went to trial on the conspiracy charge and was convicted (as was McCrae on all three counts). He was sentenced to 151 months, the top of the advisory Guideline range.

On appeal, the Fourth Circuit affirmed both his conviction and sentence. Regarding the conviction for conspiracy, Osborne argued that while the evidence was sufficient to support his role in the robbery and possession, it wasn't sufficient to prove that he conspired with McCrae. The Fourth Circuit disagreed, noting evidence of their cooperation before and after the robbery (some of it provided by Osborne's son, who overheard the preparations). As to sentencing, first Osborne argued that his Guideline should not have been enhanced for abducting the pharmacist and technician because he did not take them out of the Walgreens - in other words, to "another location." The court rejected that argument (partly relying on previous unpublished Fourth Circuit authority) and concluded that moving the pair from one part of the store to another met the definition. Second, the court rejected Osborne's argument that a prior conviction for shoplifting should not have been included in his criminal history score.

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