             Vacated by Supreme Court, March 21, 2005

                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 04-4321



UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee,

          versus


ALLEN DWAYNE COATES,

                                                 Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. John T. Copenhaver, Jr.,
District Judge. (CR-03-176; CR-03-281)


Submitted:   October 1, 2004                 Decided:   November 3, 2004


Before WILLIAMS, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mary Lou Newberger, Federal Public Defender, David R. Bungard,
Assistant Federal Public Defender, Charleston, West Virginia, for
Appellant.    Kasey Warner, United States Attorney, R. Booth
Goodwin II, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

          Allen Dwayne Coates pled guilty to crossing a state line

to engage in a sexual act with a minor under twelve, 18 U.S.C.

§ 2241(c) (2000), and possession of child pornography, 18 U.S.C.A.

§ 2252A(a)(5)(B), (b)(2) (West Supp. 2004). He appeals the twenty-

five-year sentence imposed by the district court, contending that

the district court erred by making an enhancement for abduction

under U.S. Sentencing Guidelines Manual § 2A3.1(b)(5) (2003), and

by awarding one criminal history point for a two-year sentence of

conditional discharge under USSG § 4A1.2(c)(1).   We affirm.*

          On July 12, 2003, Coates traveled from Kentucky to South

Charleston, West Virginia, where he sexually assaulted an eleven-

year-old girl in a Target store.   He watched the girl in the toy

department until she was separated from her mother.    Coates then

approached her, said he was a security guard, and told her he

needed to check her because he suspected her of taking merchandise.

Coates led the girl to the lawn and garden department, where he

told her to sit in a chair.    He showed her an open pocket knife

and, according to the victim, said something like, “Don’t make me



     *
      In his reply brief, Coates contends for the first time that,
under Blakely v. Washington, 124 S. Ct. 2531 (2004), his sentence
violates the Sixth Amendment because it results from facts not
charged in the indictment, found by a jury, or proved beyond a
reasonable doubt.   We reject this claim.    See United States v.
Hammoud, 381 F.3d 316, 2004 WL 2005622, at *28 (4th Cir. Sept. 8,
2004) (en banc) (holding that Blakely “does not affect the
operation of the federal sentencing guidelines.”).

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use this.”    Coates then asked her to touch his penis with her hands

and her mouth.    She complied, but when customers began approaching

the lawn and garden department, Coates took the girl by the wrist

and led her to the men’s clothing department.           There he reached

inside her pants and touched her genital area.               Coates then

concealed the girl inside a rack of clothing and again asked her to

put her mouth on his penis.       Coates ejaculated on her clothing and

cleaned himself and her with some articles of clothing.            He left

the store after telling the girl not to move until he was out of

the store.

             On July 16, 2003, Coates was arrested in Louisville,

Kentucky, and on July 18 a search warrant was executed at his home

in Irvington, Kentucky.         Nine sheets of paper containing visual

depictions of child pornography were found there. Another seventy-

two images of child pornography were found on Coates’ computer.

             At the sentencing hearing, over Coates’ objection, the

district court determined that Coates had abducted the victim,

which   resulted     in     a   four-level    enhancement    under      USSG

§ 2A3.1(b)(5). The court also determined that one criminal history

point was correctly assigned for Coates’ 1997 Kentucky sentence of

conditional discharge for the offense of disorderly conduct.            The

court   adopted    the    guideline    calculation   recommended   in   the

presentence report and imposed a sentence of twenty-five years, or

300 months, imprisonment.


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           The district court’s determination that Coates abducted

the   victim   is    reviewed    de   novo    because   it     involves    a   legal

interpretation of the guideline.           See United States v. Kinter, 235

F.3d 192, 195 (4th Cir. 2000) (citing United States v. Nale, 101

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

           The term “abducted” is defined in Application Note 1(A)

to USSG § 1B1.1 as meaning “that a victim was forced to accompany

an offender to a different location.”            Coates argues that, because

he and the victim remained inside the Target store, he did not

force her to go to a different location, but only “shift[ed] the

victim from one area to another within the same general location .

. . .”   However, for the enhancement to apply, the victim need not

have been moved any great distance, as Coates contends. See United

States v. Kills in Water, 293 F.3d 432, 437 (8th Cir. 2002)

(abduction     enhancement      was   warranted    when      victim    voluntarily

accompanied defendant to trailer where rape occurred, but was

forced into trailer).      We conclude that the district court did not

err in deciding that Coates abducted the victim.

           The      district    court’s    determination       that    a   Kentucky

sentence of conditional discharge is the equivalent of a sentence

of probation is also a legal issue that we review de novo.                  Kinter,

235 F.3d at 195.        The Sixth Circuit has repeatedly held that a

Kentucky     conditional       discharge     sentence     is     the   functional

equivalent of unsupervised probation, most recently in United


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States v. Rollins, 378 F.3d 535, 538 (6th Cir. 2004) (citing

United States v. Miller, 56 F.3d 719, 722 (6th Cir. 1995) (same);

see also Harris v. United States, 204 F.3d 681, 682-83 (6th Cir.

2000) (Ohio version of conditional discharge sentence qualifies as

term of probation under § 4A1.2(c)(1)); Pedigo v. Commonwealth, 644

S.W.2d 355, 358 (Ky. Ct. App. 1982) (apart from supervision, no

difference between conditional discharge and probation)).                Other

circuits have reached similar conclusions.           See United States v.

Labella-Szuba,   92   F.3d   136,    138     (2d   Cir.   1996)   (New   York

conditional   discharge   sentence     was    functional    equivalent     of

probation); United States v. Lloyd, 43 F.3d 1183, 1188 & n.8 (8th

Cir. 1994) (Illinois conditional discharge comes within the meaning

of probation under § 4A1.2(c)(1)).

           In light of these decisions, we are persuaded that the

district court did not err in determining that Coates’ Kentucky

two-year conditional discharge sentence was the equivalent of a

sentence of probation and awarding one criminal history point for

that sentence.

           We therefore affirm the sentence imposed by the district

court.   We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                    AFFIRMED


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