“Use” v. “Brandishing” Re-Defined: The Fourth Circuit Adopts the “Imminent-Threat” Test for § 2A4.1(b)(3) Dangerous-Weapon Enhancements

Introduction

United States v. Thomas Faulls, Sr., No. 23-4532 (4th Cir. Aug. 5, 2025), confronts a deceptively narrow sentencing question: when, under U.S.S.G. § 2A4.1(b)(3), does a defendant use a dangerous weapon in a kidnapping? While the Guideline supplies a two-level increase whenever a weapon is used, it distinguishes that concept from mere brandishing, displaying, or possessing. Until now the Fourth Circuit had never squarely articulated the boundary. Judge Berner’s opinion—joined by Chief Judge Diaz and Judge Harris—endorses the “imminent-threat” standard: a weapon is used when it is employed to convey a specific, immediate threat of harm, even if it is never pointed or discharged. The ruling both resolves an inter-circuity split on the standard of review and harmonises Fourth-Circuit law with the Sixth and several other circuits on substance.

At stake was Thomas Faulls’s resentencing following the vacatur of two predicate crime-of-violence counts under United States v. Davis. The government, freed from double-counting concerns, urged a fresh two-level increase. Faulls conceded that his gun loomed large in—and arguably enabled—the kidnapping but insisted it was only brandished. The district court disagreed; the Court of Appeals now affirms.

Summary of the Judgment

Standard of Review. Because the facts were undisputed, whether Faulls used the firearm presented a legal question reviewed de novo, not for clear error. The court distinguished its prior ruling in Gross (clear-error review) and aligned itself with Dodd for issues requiring primarily textual and precedential analysis.
“Use” Defined. Drawing on Guideline commentary and sister-circuit precedent—especially the Sixth Circuit’s Bolden—the court held that use under § 2A4.1(b)(3) means employing the weapon to create a personalised, imminent threat, more than general intimidation but less than discharge.
Application to Faulls. By informing the victim of the gun’s presence, stressing the impossibility of escape, and invoking the violent context of prior assaults, Faulls transformed the firearm into an immediate threat. Consequently, the district court properly applied the two-level enhancement, leaving the 295-month sentence intact.

Detailed Analysis

1. Precedents Cited and Their Influence

United States v. De La Rosa, 911 F.2d 985 (5th Cir. 1990) & LaFortune, 192 F.3d 157 (1st Cir. 1999) – Early adopters of the threat-versus-intimidation distinction; they found use whenever a firearm communicated a specific threat, explicit or implied.
United States v. Bolden, 479 F.3d 455 (6th Cir. 2007) – Provides the immediate harm test the Fourth Circuit now embraces, contrasting a possibility of future force with a present threat.
United States v. Kruger, 839 F.3d 572 (7th Cir. 2016); Cover, 199 F.3d 1270 (11th Cir. 2000); Dunigan, 555 F.3d 501 (5th Cir. 2009) – Collectively demonstrate broad inter-circuity consensus that a gun used to personalise harm equals otherwise used.
United States v. Pettus, 90 F.4th 282 (4th Cir. 2024); Dodd, 770 F.3d 306 (4th Cir. 2014); Gross, 90 F.4th 715 (4th Cir. 2024) – Fourth-Circuit authority on choosing the correct standard of review for guideline issues; the panel distinguishes Gross and follows Dodd.
United States v. Davis, 588 U.S. 445 (2019); United States v. Walker, 934 F.3d 375 (4th Cir. 2019) – Explain why the firearm and domestic-violence counts were vacated, teeing up resentencing and the disputed enhancement.

2. Core Legal Reasoning

The sentencing table distinguishes three escalating tiers: (1) possession/display (brandishing), (2) otherwise used (threat), (3) discharge. The court’s syllogism:

Guideline commentary equates otherwise used to conduct more than brandishing yet less than discharge.
Brandishing is defined as displaying to intimidate—a forward-looking, non-specific menace.
Therefore, otherwise used must encompass scenarios where the weapon conveys a present, personalised threat.

Applying that gloss, the panel noted that Faulls (a) immediately informed Lori of the gun, (b) paired that knowledge with inescapable restraints, (c) referenced lethal outcomes (driving off a cliff), and (d) had an established pattern of violence. The firearm was the linchpin deterring escape—precisely what the enhancement aims to punish.

3. Anticipated Impact

Fourth-Circuit Uniformity. District judges now have a clear template: the “imminent-threat” test supplants ad-hoc factual parsing and will likely increase consistency in weapon-use enhancements for kidnapping, robbery, carjacking, and similar offenses.
Resentencing After Davis. Defendants whose § 924(c) counts are vacated may find the government newly incentivised to seek § 2A4.1(b)(3) or analogous enhancements, mitigating sentence reductions. Counsel must prepare to litigate use v. brandishing.
Domestic-Violence Context. Victims of intimate-partner violence frequently face implied, rather than overt, firearm threats. The decision recognises that subtle but imminent threats deserve the same sentencing gravity as overt gun-pointing.
Standard-of-Review Clarification. By pegging the inquiry to legal interpretation when facts are undisputed, the opinion narrows factual discretion and strengthens appellate oversight in Guideline disputes.

Complex Concepts Simplified

Sentencing Enhancement. An upward adjustment in the advisory guideline range based on aggravating factors—in this case, weapon use.
Brandishing. Making a weapon’s presence known to intimidate, without necessarily aiming or threatening immediate harm.
Otherwise Used. Employing a weapon in a way that threatens immediate harm but stops short of firing it or striking the victim.
Categorical Approach. Courts look solely at statutory elements—not case facts—to decide if an offense qualifies as a crime of violence.
De Novo Review. The appellate court decides the legal question anew, giving no deference to the district court’s interpretation.
Clear Error Review. A deferential standard: the appellate court upholds factual findings unless left with a firm conviction that a mistake was made.

Conclusion

United States v. Faulls achieves two things of lasting significance. First, it sets a crisp doctrinal line between brandishing and use for dangerous-weapon enhancements, adopting the imminent-threat test and thereby aligning the Fourth Circuit with prevailing national authority. Second, it clarifies that such classification questions are legal, demanding de novo appellate scrutiny when underlying facts are uncontested. Practitioners should anticipate more frequent application of § 2A4.1(b)(3) (and its Guideline cousins), particularly in cases where firearms create coercive atmospheres without an explicit trigger pull. The decision underscores the judiciary’s recognition that in the calculus of victim harm, the psychological grip of an imminent gun threat can be as potent—and as punishable—as the barrel itself.