FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30436
Plaintiff-Appellee, D.C. No.
v. 4:09-cr-00041-
JASON LEE ALBRITTON, SEH-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
August 4, 2010—Seattle, Washington
Filed September 16, 2010
Before: John T. Noonan, David R. Thompson and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Thompson;
Dissent by Judge Berzon
14221
UNITED STATES v. ALBRITTON 14223
COUNSEL
Anthony R. Gallagher, Great Falls, Montana, for the appel-
lant.
14224 UNITED STATES v. ALBRITTON
Cyndee L. Peterson, Assistant United States Attorney, Mis-
soula, Montana, for the appellee.
OPINION
THOMPSON, Senior Circuit Judge:
Jason Lee Albritton pleaded guilty to Credit Union (Bank)
Robbery, in violation of 18 U.S.C. § 2113(a). Albritton was
sentenced to 105 months of incarceration to run consecutive
with any other undischarged term of imprisonment, followed
by three years of supervised release.
On appeal, Albritton challenges three aspects of his sen-
tence. First, he argues the court improperly determined that
he “otherwise used” a dangerous weapon, rather than merely
“brandished or possessed” the weapon, and, thus, his offense
level was improperly increased by four (4). See U.S. Sentenc-
ing Guidelines Manual (hereinafter “U.S.S.G.”) § 2B3.1(b)
(2)(D) (addressing an “otherwise used” dangerous weapon);
§ 2B3.1(b)(2)(E) (imposing an increase of three (3) offense
levels for a “brandished or possessed” dangerous weapon).
Second, he argues that, because there was no “sustained
focus” on a victim, the court improperly increased his offense
level by two (2) for “physically restrain[ing]” a victim. See
U.S.S.G. § 2B3.1(b)(4)(B). Third, Albritton challenges the
consecutive nature of his sentence, arguing that it should be
concurrent, or at least partially concurrent, to another term he
is serving.
We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
BACKGROUND
In his briefing to this court, Albritton admits that in com-
UNITED STATES v. ALBRITTON 14225
mitting the credit union robbery he held a BB pistol while
advancing toward a teller who was on the phone. He had a
black bag he placed on the counter. The teller stepped back
and whispered into the phone, “We’re being robbed.” Albrit-
ton ordered the teller to put down the phone and shouted,
“Down, Down!” Albritton then turned toward the front door
and entered the office of Debi Zeiss, a loan officer. Upon his
knocking, she turned around to see a gun pointed at her.1
Albritton said, “Money, hurry.” He followed Zeiss out of her
office, holding the BB pistol.
Upon Albritton’s request, we watched a surveillance video
of the robbery. The key image of the silent video shows the
scene from over and behind the left back corner of the teller’s
area, the lobby, the front door, and Zeiss’ office. A ski-
masked man with a black bag enters and advances immedi-
ately to the teller and toward the camera, holding a gun at eye
level pointed at the teller. He sets his bag on her counter,
appears to gesture across the room, and then points the gun
again at the teller, holding the gun above eye level extended
out over the counter. He then lowers the gun, but still points
it at the teller until she moves toward and under the camera,
disappearing from view.
The man then turns around and moves away from the cam-
era and toward Zeiss’ office. He walks about 10 to 20 feet
across the lobby, and points the gun at Zeiss. She does not
appear to notice the man until he gets within a few feet of her
door, when she looks up. She gets up as he steps into her
office, and he motions across the room with the gun. Zeiss
leaves the office before him and, with him following closely
behind her, she walks back across the lobby in the indicated
direction, disappearing off the right side of the image. During
1
Despite this admission in Albritton’s appellate briefing, at oral argu-
ment Albritton’s attorney contended that Albritton pointed his finger, not
the gun, at Zeiss. The surveillance video, however, shows Albritton point-
ing the gun at Zeiss, at least for a portion of their interaction.
14226 UNITED STATES v. ALBRITTON
this walk, the man does not appear to directly point the gun
at Zeiss until about half-way across the scene.
A few seconds later, in the foreground of the video behind
the teller’s desk, the back of the teller’s raised hand briefly
appears, and then Zeiss briefly reappears walking toward and
under the camera, apparently joining the teller’s position. The
man also reappears in the foreground of the video, but he does
not again point the gun toward the women—he pulls money
from two drawers, collects the cash in his black bag, and
leaves the credit union.
The district court watched the surveillance video at Albrit-
ton’s sentencing hearing and imposed a within-guidelines sen-
tence. Consistent with the presentence report’s
recommendation, the district court sentenced Albritton to 105
months of incarceration to run consecutive with any other
undischarged term of imprisonment, followed by three years
of supervised release. At the time of sentencing, Albritton was
already serving a 51-month term for an armed bank robbery
conviction in another state. Albritton appeals his sentence.
DISCUSSION
I. “Otherwise Used” a Dangerous Weapon
We review de novo the district court’s interpretation of the
Guidelines, and review for clear error the court’s factual find-
ings. United States v. Alderman, 601 F.3d 949, 951 (9th Cir.
2010). We have not decided whether the application of the
Sentencing Guidelines to the facts is reviewed de novo or for
abuse of discretion. United States v. Laurienti, ___ F.3d ___,
2010 WL 2473573, *19 (9th Cir. 2010).
With regard to dangerous weapons, the Sentencing Guide-
lines’ Application Notes define “brandished” and “otherwise
used” as follows:
UNITED STATES v. ALBRITTON 14227
• Brandished: “[A]ll or part of the weapon was
displayed, or the presence of the weapon was oth-
erwise made known to another person, in order to
intimidate that person, regardless of whether the
weapon was directly visible to that person.
Accordingly, although the dangerous weapon
does not have to be directly visible, the weapon
must be present.”2
• Otherwise Used: “[T]he conduct did not amount
to the discharge of a firearm but was more than
brandishing, displaying, or possessing a firearm
or other dangerous weapon.”
U.S.S.G. § 1B1.1 cmt. n.1(C) (defining “brandished”); id.
§ 1B1.1 cmt. n.1(I) (defining “otherwise used”).
In support of the contention that Albritton merely “bran-
dished” the pistol, his attorney argues that the “entire rob-
bery” lasted less than three minutes, the BB pistol was
displayed for “no more than a minute-and-a-half,” and the pis-
tol was brandished for “probably less than 10 or 15 seconds.”
In addition, during his change of plea hearing in the district
court, when asked if he pointed the BB pistol at anyone,
Albritton stated: “I can’t recall actually pointing it. I didn’t—
it wasn’t a real gun; so I didn’t want them to even look at it.
I just ran in and yelled. And I think confusion just set in
then.” This statement, however, is refuted by the surveillance
video, which shows Albritton pointing the gun directly at each
of the two credit union employees.
Albritton erroneously relies on United States v. Moerman
for the proposition that a defendant “otherwise used” a
weapon only when his or her “actions and/or statements
directly threatened an individual with the use of the firearm
2
This definition of “brandished” became effective on November 1,
2000. See U.S.S.G. app. C vol. 2 amend. 601 p.73 (Nov. 1, 2003).
14228 UNITED STATES v. ALBRITTON
if the person being threatened did not comply with the defen-
dant’s demands.” 233 F.3d 379, 381 (6th Cir. 2000). Moer-
man was decided under a prior version of the Guidelines,
which expansively defined “brandished” as meaning “that the
weapon was pointed or waved about, or displayed in a threat-
ening manner.” Id. at 380. After revision of the Guidelines’
definition of “brandished,” the Sixth Circuit recognized that
Moerman’s “distinction [between explicit and implicit threats]
is no longer supported.” United States v. Bolden, 479 F.3d
455, 462 (6th Cir. 2007).
[1] In United States v. Villar, the First Circuit distin-
guished between the current Guidelines’ definitions of “bran-
dished” and “otherwise used.” 586 F.3d 76, 90 (1st Cir.
2009). According to Villar, a weapon is “otherwise used”
once there is “specific leveling” of the weapon at another per-
son. Id. “Brandishing” is a “general display of weaponry.” Id.
(explaining this distinction, drawn in United States v. LaFor-
tune, 192 F.3d 157, 161 (1st Cir. 1999), survives the Guide-
lines’ revision, as it is “fully consistent with the amended
definition of ‘brandished’ ”).
[2] Villar’s demarcation between “brandished” and “other-
wise used” is consistent with dictionaries, which define the
verb “brandish” as: “1. To wave or flourish (a weapon, for
example) menacingly. 2. To display ostentatiously.” The
American Heritage Dictionary of the English Language 224
(4th ed. 2000). See also The Random House Dictionary of the
English Language 254 (2d ed. 1987) (defining the verb “bran-
dish” as “to shake or wave, as a weapon; flourish”). We agree
with the First Circuit’s distinction and adopt it.
[3] Applying that distinction to this case, it is clear that
Albritton “otherwise used” the BB pistol. Albritton pointed
the pistol directly at the teller and ordered her “Down,
Down!” In addition, Albritton specifically leveled the weapon
at loan officer Zeiss in directing her across the room. Thus,
UNITED STATES v. ALBRITTON 14229
we affirm the district court’s offense level increase on this
ground.
II. “Physically Restrained” a Victim
The Guidelines provide that, “if any person was physically
restrained to facilitate commission of the offense or to facili-
tate escape,” the offense level shall be increased by two.
U.S.S.G. § 2B3.1(b)(4)(B). The Guidelines define “physically
restrained”:
Physically restrained: “[T]he forcible restraint of the
victim such as by being tied, bound, or locked up.”
U.S.S.G. § 1B1.1 cmt. n.1(K). See United States v. Parker,
241 F.3d 1114, 1118 (9th Cir. 2001) (“These examples are
illustrative and not exclusive.”).3
[4] The Ninth Circuit has observed, “cases holding that a
defendant physically restrained his victims usually involve a
sustained focus on the restrained person that lasts long enough
for the robber to direct the victim into a room or order the vic-
tim to walk somewhere.” See id. A “sustained focus” on a vic-
tim exists when, at gunpoint, the victim is ordered into a back
room, United States v. Nelson, 137 F.3d 1094, 1112 (9th Cir.
1998), repeatedly forced to get down and get up, United
3
Commentary to the robbery Guideline explains that it “provides an
enhancement for robberies where a victim was forced to accompany the
defendant to another location, or was physically restrained by being tied,
bound, or locked up.” U.S.S.G. § 2B3.1 cmt. background. At oral argu-
ment, Albritton’s attorney noted that the “physically restrained” definition
includes restraints “such as by being tied, bound, or locked up” (emphasis
added), while the robbery commentary excludes the “such as” language.
Albritton’s attorney argues the omission of the “such as” language indi-
cates that the robbery Guideline’s list of physical restraints excludes all
non-listed restraints. We disagree. The Application Notes for the robbery
Guideline specifically state that “physically restrained” is defined in the
commentary to U.S.S.G. § 1B1.1. U.S.S.G. § 2B3.1 cmt. n.1.
14230 UNITED STATES v. ALBRITTON
States v. Thompson, 109 F.3d 629, 641 (9th Cir. 1997), or
forced to walk some distance (i.e., from the teller area to the
vault area), id. (alternative holding). It is not enough if the
defendant briefly points a gun at a victim and orders her once
to get down. Parker, 241 F.3d at 1118-19 (explaining that
Congress must have meant something more, because “nearly
all armed bank robberies will presumably involve such acts”).
[5] Albritton argues that, because there was no “sustained
focus” on Zeiss, she was not “physically restrained.” How-
ever, the video clearly shows a sustained focus on Zeiss.
Albritton directed Zeiss across and around the office. He fol-
lowed right behind her, gun in hand. Thus, we affirm the dis-
trict court’s offense level increase on this ground.4
III. Consecutive Nature of Albritton’s Sentences
Albritton argues the district court erred in requiring that his
sentence run consecutive to any other undischarged term of
imprisonment. In particular, Albritton argues that two of his
convictions—the Montana crime at issue here and an armed
bank robbery in Florida, for which he was serving 51 months
at the time of sentencing in this case—were essentially one
course of conduct, because they involved “very similar” modi
4
Albritton argues the physical restraint enhancement constituted imper-
missible double-counting with the enhancement for him having “otherwise
used” the BB pistol. This argument is frivolous.
The enhancements address different harms, and the conduct addressed
by each enhancement is distinct. See Parker, 136 F.3d at 654 (“Double
counting is permissible if it accounts for more than one type of harm
caused by the defendant’s conduct, or where each enhancement of the
defendant’s sentence serves a unique purpose under the guidelines.”);
United States v. Rucker, 178 F.3d 1369, 1373 (10th Cir. 1999) (citing Par-
ker and addressing the same enhancements at issue in this case; explaining
that, because pointing a gun at a victim does not necessarily physically
restrain him, and because a victim can be physically restrained without a
weapon, the addressed conduct causes different harms and the enhance-
ments do not overlap).
UNITED STATES v. ALBRITTON 14231
operandi and occurred close in time (less than 6 months
apart).
[6] Albritton does not show the district court clearly erred
in rejecting his “one course of conduct” argument. The crimes
involved different victims, are clearly distinct in time and
place, and were not shown to have occurred with regularity.
See United States v. Hahn, 960 F.2d 903, 907, 910 (9th Cir.
1992) (reviewing for clear error and stating, “the essential
components of the section 1B1.3(a)(2) analysis are similarity,
regularity, and temporal proximity”).5
AFFIRMED.
BERZON, Circuit Judge, dissenting:
Although I agree with, and concur in, the majority opinion
with regard to the “physically restrained” Guideline, U.S.S.G.
§ 2B3.1(4)(B), and Albritton’s consecutive sentence, I
respectfully dissent with regard to the question whether
Albritton “otherwise used” a dangerous weapon. Reading the
Guidelines’ definition of “brandished” as a whole and in con-
text, pointing a gun (or other dangerous weapon) at someone
is brandishing it, not otherwise using it, no matter whether the
gun is pointed fleetingly or not, and no matter whether the
pointing is accompanied by verbal threats or not. Although I
recognize that other circuits have held otherwise — particu-
larly the First Circuit in United States v. Villar, 586 F.3d 76,
90 (1st Cir. 2009), a case heavily relied upon by the majority
— the issue is an open one in this circuit.
5
Albritton contends the imposition of consecutive sentences is inconsis-
tent with the Sentencing Guidelines’ goal of diminishing sentencing dis-
parity. Because Albritton makes no showing of how his sentence is unfair,
we reject this contention.
14232 UNITED STATES v. ALBRITTON
I
The majority opinion interprets the term “brandish” simply
by looking to the dictionary definition of “brandish,” viewing
the term in isolation. Even in carrying out this limited
endeavor, it errs.
The definition upon which the majority relies includes
“ ‘[t]o . . . flourish (a weapon . . .) menacingly’ ” and “ ‘[t]o
display ostentatiously.’ ” Majority Op. at 14228 (quoting The
American Heritage Dictionary of the English Language 224
(4th ed. 2000). Neither definition quoted specifies whether the
flourishing or displaying has to be “in the air,” so to speak,
as the majority assumes, rather than directed at a specific per-
son, as is signaled by pointing a gun at that person. But “men-
acingly” certainly suggests a conveyed intent to use the
weapon, rather than just to show it off. One does not “bran-
dish” a weapon by displaying it in the Tower of London as an
example of the contents of King Henry VIII’s arsenal. I there-
fore see no basis for concluding that pointing a gun at some-
one with the implicit threat to use it does not constitute
“brandishing” the weapon. The dictionary definition does not
dictate the majority’s conclusion.
More importantly, there would have been no need for a
separate definition in the Guidelines’ § 1B1.1 Application
Notes if all that was intended by the term “brandished” was
the out-of-context dictionary definition. We all know how to
use a dictionary. See Schwab v. Reilly, 130 S. Ct. 2652, 2662
(2010) (noting that dictionary definitions are not useful where
there is a statutory definition). The definition actually given
in the Application Notes contains critical language not
acknowledged in or discussed by Villar or by the majority in
this case — namely, the display must be “to another person,
in order to intimidate that person.”1 That language adds three
1
I note that the Guidelines’ definition of “brandished,” as a whole, does
not comport with the majority’s dictionary definition for an independent
UNITED STATES v. ALBRITTON 14233
details to the dictionary definition, all of which confirm that
pointing a dangerous weapon threateningly comes within the
Guidelines’ definition of “brandished.”
First, the Guidelines’ definition adds directionality — the
display must be “to another person.” U.S.S.G. § 1B1.1 cmt.
n.1(C) (emphasis added). Pointing, of course, involves direct-
ing a weapon to a person. The directional term “to” is thus
consistent with the inclusion of pointing a weapon at someone
within the broader term, “brandishing.”
Second, the Guidelines’ definition adds specificity of target
— the display must be not to the world at large, but “to
another person.” Id. (emphasis added). Moreover, the display
must take place “in order to intimidate that person.” This
specificity precludes the majority’s conclusion that
“ ‘[b]randishing’ is a ‘general display of weaponry’,” not a
“ ‘specific leveling’ of the weapon at another person.” Major-
ity Op. at 14228 (quoting Villar, 586 F.3d at 90). The Guide-
lines’ definition is squarely to the contrary: A “general
display of weaponry” is expressly not covered by the Guide-
lines’ definition of “brandished,” as the display must be “to
another person,” and for the purpose of intimidating that per-
son. For these same reasons, the “ ‘specific leveling’ of [a]
weapon at another person” is quite expressly covered.2
Finally, the phrase ignored in the majority opinion adds a
reason not here directly applicable: The Guidelines’ definition says that
the “weapon does not have to be directly visible,” although it must be
present and made known. U.S.S.G. § 1B1.1 cmt. n.1(C). A hidden weapon
is neither “wave[d]” nor “flourishe[d]” nor “displaye[d] ostentatiously,”
and so does not come within the dictionary definition the majority relies
upon. As this example confirms, the Guidelines’ definition of “bran-
dished” does not simply mimic the dictionary.
2
Perhaps the majority intends to draw a distinction between displaying
a weapon “at another person” and “to another person.” If so, the distinc-
tion escapes me; one can surely display something to someone by just
flashing it at him, for example.
14234 UNITED STATES v. ALBRITTON
mental element — the display must take place “in order to
intimidate that person.” U.S.S.G. § 1B1.1 cmt. n.1(C). This
feature confirms that “brandishing” involves placing a partic-
ular individual in fear. Moreover, “intimidate” connotes not
simply frightening someone, but frightening them so as “to
force [them] to or deter [them] from some action.” The
Oxford English Dictionary, Vol. VIII, at 8 (2d ed. 1989). In
short, the notion that “brandishing” does not involve using
focused fear of harm to induce a particular person to do a par-
ticular thing, central to the majority opinion, simply will not
wash.
There is the suggestion in the majority opinion that the cur-
rent Guidelines’ definition of “brandished” cannot include
pointing a weapon at someone, because earlier versions of the
definition expressly included “pointing,” while the current
one does not. In context, the proper inference is the opposite
— that the change in the Guidelines’ definition preserved,
rather than discarded, the inclusion of pointing as part of the
definition.
The amendment, which took place in 2000, replaced the
phrase “that the weapon was pointed or waved about, or dis-
played in a threatening manner,” U.S.S.G. § 1B1.1 cmt.
n.1(C) (1999) (amended Nov. 1, 2000), with “that all or part
of the weapon was displayed, or the presence of the weapon
was made known to another person, in order to intimidate that
person, regardless of whether the weapon was directly visible
to that person.” U.S.S.G. § 1B1.1, cmt. n.1(C) (2000). The
addition thereby added all of the critical elements I have dis-
cussed — directionality, specificity of targeted person, and
intention to coerce. Having added those elements, all of the
features conceivably particular to “pointing” were included,
as they were not previously, and there was no reason to single
out “pointing” as a particular form of brandishing any longer.
See The Oxford English Dictionary, Vol. XI, at 1135 (defin-
ing “point” as, inter alia, “[t]o direct (the finger, a weapon,
UNITED STATES v. ALBRITTON 14235
etc.) at, to level or aim (a gun) at; to direct (a person, his
attention, or his course) to”).
Moreover, if the amendment were given the import sug-
gested, then one would have to conclude that “waving” as
well as “pointing” was no longer covered. The word “waved”
appears in the earlier version but not the present one. Yet, the
premise of the majority’s opinion seems to be that waving is
covered but pointing at a particular person coercively is not
— why, we are not told. The more appropriate conclusion is
that the term “display” now includes both waving and point-
ing.
Further, the explanation given by the United States Sen-
tencing Commission when it adopted the current definition of
“brandished” confirms that no confining change was intended.
The Commission explained that a statutory definition of
“brandish” had been recently adopted and codified at 18
U.S.C. § 924(c)(4). See U.S.S.G. § 1B1.1 hist. notes (2000
amends.). In that light, the Commission stated that the pur-
poses of amending the Guidelines definition were to “avoid
confusion” by conforming to the new statute’s definition and
to “increase punishment in some circumstances,” by adding a
reference to hidden weapons whose presence is made known.
Id. There is no indication whatever that a third purpose was
to take away an entire category of previously covered actions
— display by pointing a weapon at a particular person.
Moreover, and critically, if “brandishing” did not include
coercive pointing, then the same limitation would presumably
apply to 18 U.S.C. § 924, as the Sentencing Commission
meant to follow the § 924 definition. See 18 U.S.C.
§ 924(c)(4) (defining the term “brandish” as “to display all or
part of the firearm, or otherwise make the presence of the fire-
arm known to another person, in order to intimidate that per-
son, regardless of whether the firearm is directly visible to
that person”). But § 924(c)(4) has been interpreted to include
coercive pointing of a firearm. See United States v. Beneford,
14236 UNITED STATES v. ALBRITTON
574 F.3d 1228, 1234 (9th Cir. 2009) (applying
§ 924(c)(1)(A)(ii)’s “brandished” enhancement where the
defendant “turned and pointed the handgun at [the teller]”)
(alteration in original). Indeed, if “brandished” does not
include coercive pointing of a firearm for § 924(c) purposes,
then there is no applicable sentencing enhancement for such
coercive pointing: The statute provides increased mandatory
minimums only of seven and ten years, respectively, for
“brandish[ing]” or “discharg[ing]” a firearm; if neither term
applies, then the mandatory minimum for use or possession of
a firearm in furtherance of certain crimes is five years. 18
U.S.C. § 924(c)(1)(A). As the Sentencing Commission’s pur-
pose in its 2000 amendment to the Guidelines was to conform
the Guidelines’ definition to that contained in § 924(c), the
consideration that the statute’s definition of “brandished”
applies to coercive pointing should be dispositive in this case.
In sum, the current Sentencing Guidelines’ definition of
“brandished” includes coercive pointing of a gun or other
dangerous weapon through its use of terms indicating direc-
tionality, specificity of victim, and a mental element of
intended coercion. The majority’s assumption otherwise, in
reliance on Villar, has no basis.
II
Having so concluded, I now turn to the impact of this con-
clusion on the ultimate issue with regard to the dangerous
weapon enhancement in this case: Did Albritton “brandish”
the BB pistol he was carrying, or did he “otherwise use” it?
If the former, his offense level would be increased by three
levels; if the latter, the increase would be four levels.3 The
Guidelines’ definition of “otherwise used” is behavior that
3
There is a parallel but more nuanced distinction with regard to actual
firearms — an enhancement of seven levels for a discharged firearm, six
levels if a firearm is “otherwise used,” and five levels if it is “brandished
or possessed.” U.S.S.G. § 2B3.1(b)(A)-(C).
UNITED STATES v. ALBRITTON 14237
“did not amount to [the] discharge of a firearm but was more
than brandishing, displaying, or possessing [the] firearm or
other dangerous weapon.” U.S.S.G. § 1B1.1 cmt. n.1(I). If, as
explained above, coercive pointing of a gun, phony or real, at
someone is “brandishing” it, then it cannot be “otherwise
using” it.
Given that structure, one could object to my reading of the
definition of “brandished” if, as used in the operative Guide-
line, my interpretation turned out to swallow up the “other-
wise used” category, leaving it a nullity. But that is certainly
not so. For dangerous weapons other than firearms, my under-
standing of “brandished” leaves “otherwise used” covering all
the ordinary uses of most dangerous weapons that are not fire-
arms — stabbing with a knife, for example, or cutting with an
axe, or hitting with a hammer. And for firearms, “otherwise
used” would include, for example, pistol whipping. So there’s
no reason to bend the very precise Guidelines’ definition of
“brandished” out of shape to assure a sensible gradation of
suggested punishment within the operative Guideline, and I
would not do so.
Conclusion
I would hold that pointing a BB pistol at someone, coer-
cively or otherwise, constitutes brandishing, not otherwise
using, the weapon, giving rise to a three—rather than four—
level sentencing enhancement. I therefore respectfully dissent.