Imposters Can “Occupy” a Position of Trust: Fourth Circuit Reaffirms §3B1.3’s Reach Post‑Kisor and Upholds Probation’s Authority to Set Treatment Details

Introduction

In United States v. Brewer, the Fourth Circuit issued a published decision affirming a 33‑month sentence for wire fraud that included a two‑level enhancement under U.S.S.G. § 3B1.3 for abuse of a position of trust and upholding two supervised-release conditions that delegate implementation details to the probation officer. The defendant, Christon Jermaine Brewer, pleaded guilty without a plea agreement to a single count of wire fraud stemming from a scheme in which he falsely presented himself as a wealthy, experienced investor and promised guaranteed returns in stocks and a cannabis venture, then spent investor funds on himself.

On appeal, Brewer raised two principal challenges: (1) that the § 3B1.3 “abuse‑of‑trust” enhancement cannot apply to a “mere imposter” who held no bona fide fiduciary role; and (2) that two supervised-release conditions unconstitutionally delegated judicial authority to the probation office by allowing it to determine the “provider, location, modality, duration, [and] intensity” of certain treatment programs. The Fourth Circuit rejected both arguments, providing important clarifications on the continued vitality of the imposter doctrine under § 3B1.3 after Kisor v. Wilkie and on the line between permissible implementation and impermissible delegation in supervised-release conditions.

Summary of the Opinion

The Fourth Circuit affirmed the sentence in full. First, it held that the abuse‑of‑trust enhancement properly applied because Brewer created and exploited a trust relationship with victim-investors by holding himself out as a day trader and financial advisor, providing “objective indicia” of legitimacy (e.g., promissory notes and partnership documents), and exercising significant discretion over entrusted funds. The Court reaffirmed that § 3B1.3 applies to imposters who convincingly assume positions of trust from the victim’s perspective. It also rejected Brewer’s argument that post‑Kisor limits on deference to agency commentary undermine Application Note 3’s inclusion of imposters: either the guideline’s text itself covers imposters (under a victim‑perspective, position‑relative‑to‑the‑victim reading) or, if ambiguous, the Application Note falls within the permissible “zone of ambiguity” and warrants controlling weight under the Fourth Circuit’s recent Kisor‑constrained framework in United States v. Boler.

Second, the Court upheld supervised-release Conditions 17 and 22, holding that under United States v. Williams, allowing the probation officer to specify implementation details (provider, location, modality, duration, intensity) of required treatment programs does not violate Article III, because the district court itself imposed the substantive obligation to participate in treatment, leaving only logistical particulars to probation.

Analysis

Precedents Cited and Their Influence

U.S.S.G. § 3B1.3 and Application Note 3 (1998 Amendment): The guideline increases the offense level by two “[i]f the defendant abused a position of public or private trust… in a manner that significantly facilitated the commission or concealment of the offense.” Application Note 3 clarifies that the enhancement “applies in a case in which the defendant provides sufficient indicia to the victim that the defendant legitimately holds a position of… trust when, in fact, the defendant does not.” The Fourth Circuit’s decision leans on this commentary and the guideline’s purpose to reach imposters.
United States v. Brack (4th Cir. 2011): Described the enhancement’s “central purpose” as penalizing defendants who exploit positions providing freedom to commit difficult‑to‑detect crimes and endorsed its application to imposters who assume trust “relative to the victim.” Brewer relies heavily on Brack’s victim‑perspective and imposter framework.
United States v. Agyekum (4th Cir. 2017): Requires an actual trust relationship with the victim that is exploited to commit or conceal the offense. Reinforces the need for more than mere confidence and supports the victim‑perspective analysis.
United States v. Ebersole (4th Cir. 2005) and United States v. Caplinger (4th Cir. 2003): A position of trust requires “something more akin to a fiduciary function,” not just confidence. Brewer’s facts—presenting as an advisor/day trader, receiving funds for investment, exercising discretion, issuing promissory and partnership documents—meet this threshold.
United States v. Akinkoye (4th Cir. 1999) and United States v. Moore (4th Cir. 1994): Ordinary commercial relationships are insufficient; the inquiry is individualized and focuses on the victim’s perspective. Brewer’s scheme went beyond ordinary arms‑length dealings.
United States v. Bollin (4th Cir. 2001): Upheld § 3B1.3 against fraudsters who held themselves out as skilled debenture traders. Brewer’s conduct closely parallels Bollin in projecting specialized expertise to induce reliance.
United States v. Weiss (4th Cir. 2014): Recognized that § 3B1.3 applies to imposters who provide sufficient indicia of a trust position to victims. Brewer reaffirms Weiss’s imposter holding.
United States v. Barringer (4th Cir. 2022): Acknowledged inconsistent phrasings of the standard of review for § 3B1.3, but deemed it irrelevant because the outcome was the same. Brewer resolves the tension pragmatically by applying the established split review: factual findings for clear error; legal interpretation de novo.
Kisor v. Wilkie (U.S. 2019) and United States v. Boler (4th Cir. 2024): Kisor tightened deference to agency interpretations; Boler operationalized Kisor for the Guidelines, requiring genuine ambiguity before deferring to commentary and then granting controlling weight if within the “zone of ambiguity.” Brewer uses Boler to hold that, even if “position” is ambiguous, Application Note 3 reasonably covers imposters.
United States v. Mullens (11th Cir. 1995): Distinguished. In Mullens, mere social relationships (country club networking) without objective indicia of a fiduciary-like role did not justify § 3B1.3. Brewer is different—he supplied objective indicia and exercised discretion over entrusted funds.
United States v. Gill (1st Cir. 1996): Supports parity of culpability between licensed professionals and convincing pretenders; the “threat is equally present” whether credentials are genuine or feigned. Brewer cites Gill to fortify the imposter doctrine.
Standards of Review Cases: United States v. Glymph (4th Cir. 1996) and Gordon (4th Cir. 1995) confirm clear-error review for factual determinations; Ebersole and Weiss confirm de novo review for legal interpretation. McMellon v. United States (4th Cir. 2004) underscores adherence to prior panel precedent—Brewer synthesizes these strands.
Supervised Release Delegation: United States v. Williams (4th Cir. 2025) controls: courts may impose treatment and probation may fill in details (provider, location, modality, duration, intensity). Brewer’s challenge is foreclosed by Williams.

Legal Reasoning

The Court’s reasoning proceeds on two tracks—first, applying § 3B1.3 to the facts; second, addressing the textual/commentary interplay post‑Kisor.

1) Why § 3B1.3 Applies to Brewer

The enhancement turns on whether the defendant abused “a position of public or private trust” in a way that significantly facilitated the crime. The Fourth Circuit applied its longstanding victim‑perspective approach: the “position” is relational and assessed from the victim’s vantage point. Brewer repeatedly portrayed himself as a day trader and financial advisor, issued formal investment‑style documents (promissory notes, partnership papers), regularly “updated” investors on supposed market performance, and exercised discretion over funds entrusted for investment. When investors sought to withdraw funds, he supplied sophisticated pretexts (bank limits, closings, transfer caps) and even escalated to threats. These facts demonstrate:

Objective indicia of a professional trust role;
Significant discretion over investors’ money;
A relationship “akin to a fiduciary function,” not a mere commercial transaction;
Exploitation of trust to commit a “difficult-to-detect” fraud—precisely what § 3B1.3 targets.

Notably, Brewer’s own allocution—admitting he “took people’s trust” and “let them down”—corroborated the trust relationship. The Court also distinguished Eleventh Circuit precedent in Mullens because Brewer, unlike Mullens, created the impression of licit financial expertise through objective indicia and assumed discretion, transforming social contact into a fiduciary‑like posture. His conduct mirrored the facts in Bollin and Weiss where the enhancement properly applied.

2) The Imposter Question After Kisor and Boler

Brewer argued that § 3B1.3’s text cannot apply to a “mere imposter” because “position of trust” presupposes a bona fide role. The Fourth Circuit rejected this on two independent grounds:

Text and structure: Read in context and purpose, the term “position” refers to the defendant’s relational posture vis‑à‑vis the victim. From the victim’s perspective, a convincing imposter stands in the same functional position as a credentialed fiduciary, with similar opportunities to commit difficult‑to‑detect wrongs. This reading harmonizes with Brack, Caplinger, and Gordon and does not depend on the commentary.
If ambiguous, deference under Boler: Even assuming “position” is genuinely ambiguous after employing traditional interpretive tools (as Kisor requires), Application Note 3’s inclusion of imposters lies within the “zone of ambiguity” and warrants controlling weight. The Commission’s 1998 amendment responded to a then‑existing circuit split and reflects the Commission’s substantive expertise and reasoned judgment. Including imposters furthers § 3B1.3’s purpose and the Sentencing Commission’s statutory mandate to reduce unwarranted disparities and proportion punishment to culpability.

As a result, the enhancement comfortably covers imposters who provide sufficient indicia of a trust role and exploit that assumed trust to facilitate their crimes.

3) Standard of Review Clarified

The Court applied a two‑part standard consistent with Fourth Circuit precedent:

Factual determinations (e.g., whether a trust relationship existed and was abused) are reviewed for clear error because they are “sophisticated factual determination[s].”
Legal interpretations of § 3B1.3 are reviewed de novo.

While Barringer previously noted inconsistent language in the case law, Brewer hews to the well‑established bifurcation and grounds adherence in McMellon’s intra‑circuit stare decisis rule.

4) Supervised Release: Delegation vs. Implementation

Brewer’s Article III challenge to Conditions 17 and 22 failed under Williams. The district court imposed the obligation to participate in testing and treatment, including transitional support and cognitive behavioral programs. The probation officer’s role—selecting the provider, location, modality, duration, and intensity—was limited to implementation details. That is a permissible administrative function, not a delegation of the core judicial decision whether treatment is required. Because Williams controls, there was no error, much less plain error.

Impact and Practical Implications

Brewer’s published opinion has several forward‑looking effects:

Reinforcement of the imposter doctrine under § 3B1.3: Post‑Kisor, some litigants have argued that commentary‑based expansions are no longer viable. Brewer answers that objection in two ways: (i) the guideline’s text, read from the victim’s perspective, already covers imposters; and (ii) even if ambiguity exists, Application Note 3 easily survives under the Fourth Circuit’s Boler framework. Expect continued application of § 3B1.3 to frauds where defendants convincingly pose as fiduciaries or professionals.
Fact patterns that trigger § 3B1.3: Prosecutors will emphasize objective indicia of legitimacy (formal documents, reports, titles), the victim’s entrustment of funds, and the defendant’s discretion. Defense counsel aiming to avoid the enhancement will focus on showing the relationship was ordinary, arms‑length, and non‑fiduciary, with minimal discretion and no objective indicia of a trust role.
Guideline‑commentary litigation: Brewer illustrates the Fourth Circuit’s approach to Kisor: the court exhausts textual tools first; if genuine ambiguity remains, it gives controlling weight to reasonable commentary within the “zone of ambiguity.” Parties should brief both the textual analysis and Boler’s “zone‑of‑ambiguity” prong.
Supervised release drafting: District courts in the Fourth Circuit can confidently impose treatment/participation conditions while leaving logistical specifics to probation. Challenges should focus on whether the court delegated the “whether” decision itself; absent that, Williams and Brewer make such conditions robust on appeal.

Complex Concepts Simplified

Abuse‑of‑trust enhancement (§ 3B1.3): A two‑level increase in the advisory Guidelines when the defendant exploits a position of trust (public or private) to commit or conceal a crime. It targets crimes made easier because victims rely on the defendant and give them discretion or access.
“Position of trust” from the victim’s perspective: The court asks whether, from the victim’s point of view, the defendant stood in a role resembling a fiduciary—one involving confidence and meaningful discretion. Titles matter less than the functional relationship.
Imposter doctrine (Application Note 3): Even if the defendant lacked genuine credentials, the enhancement applies if he convincingly acted like he had them—providing enough indicia that a reasonable victim would view him as occupying a trust role.
Kisor deference and Boler’s “zone of ambiguity”: Courts first try to resolve a guideline’s meaning through text, structure, history, and purpose. Only if the text is truly ambiguous do courts consider the Commission’s commentary—giving it controlling weight if the commentary reasonably fits within the ambiguity.
Standards of review: Clear error for the district court’s factual findings; de novo for legal interpretations. This division matters because factual determinations receive deference on appeal.
Supervised release delegation vs. implementation: A court must decide the “whether” (e.g., whether treatment is required). Probation may handle the “how” (e.g., which provider, schedule, or modality). The former is a judicial function; the latter is administrative implementation.

Conclusion

United States v. Brewer is a significant, published reaffirmation that § 3B1.3’s abuse‑of‑trust enhancement applies to imposters who convincingly assume fiduciary‑like roles to perpetrate frauds. The Fourth Circuit grounds that outcome in both the victim‑perspective reading of the guideline’s text and, alternatively, in the Kisor‑constrained deference owed to Application Note 3 under Boler’s “zone of ambiguity” approach. The Court also confirms a clear standard‑of‑review framework for § 3B1.3: factual findings for clear error and legal interpretations de novo.

On supervised release, Brewer—following Williams—draws a clean line between judicially imposing treatment conditions and administratively implementing them: probation may set the provider, location, modality, duration, and intensity, so long as the court itself has required participation. Together, these holdings provide practical guidance for sentencing courts, prosecutors, and defense counsel navigating trust‑based frauds and the design of supervised‑release conditions.