Only Pre‑Motion Delay Counts: Speedy Trial Act Clarification and Supervised‑Release Pronouncement in United States v. Lamborn

I. Introduction

This published opinion of the United States Court of Appeals for the Fourth Circuit arises from a complex, multi‑defendant gang prosecution centered on the “Reccless Tigers,” a Northern Virginia drug gang. Four defendants – Joseph Duk‑Hyun Lamborn, Young Yoo, Peter Le (“Peter”), and Tony Minh Le (“Tony”) – were tried jointly in the Eastern District of Virginia and convicted of various racketeering, narcotics, and violent offenses, including a kidnapping and murder in retaliation for cooperation with law enforcement.

On appeal, the defendants raised a wide array of issues, including:

• Denial of a last‑minute motion to continue the trial date;
• Denial of Lamborn’s motion to substitute counsel;
• Sufficiency of the evidence as to Yoo and Peter on kidnapping and murder‑related counts;
• Speedy Trial Act and Sixth Amendment speedy‑trial claims by Tony;
• Challenges to Tony’s sentence, particularly the use of acquitted conduct, firearm and leadership enhancements, and alleged unwarranted disparities; and
• Inconsistencies between the orally announced and written supervised‑release conditions for Lamborn, Yoo, and Peter.

The panel (Chief Judge Diaz writing, joined by Judge Gregory and Senior Judge Keenan) affirmed almost all aspects of the convictions and sentences. Only one category of claims succeeded: the panel held that the written judgments for Lamborn, Yoo, and Peter imposed supervised‑release conditions that had not been orally pronounced, requiring vacatur of their sentences and remand under United States v. Rogers.

Substantively, the opinion is most notable for two doctrinal clarifications:

• The Fourth Circuit expressly aligns with other circuits and holds that, for a Speedy Trial Act motion to dismiss, only delays that occur before the filing of the motion count in the calculation of non‑excludable days; and
• The court reinforces and applies its supervised‑release pronouncement doctrine (from Rogers and Mathis), requiring that all non‑mandatory conditions be announced or expressly incorporated at sentencing, on pain of vacatur.

II. Summary of the Opinion

The Reccless Tigers operated as a drug‑dealing gang that violently enforced drug debts and retaliated against perceived “snitches.” Lamborn, Yoo, and Peter were personally involved in the kidnapping and murder of Brandon White, who had testified against a gang member. Tony was not involved in the murder but was a leader in the gang’s drug operations and related violence.

Procedurally:

• A superseding indictment eventually charged:
  • Lamborn, Yoo, and Peter with racketeering conspiracy, drug conspiracy, kidnapping conspiracy, kidnapping resulting in death, murder in aid of racketeering (VICAR), killing while engaged in drug trafficking, and (for Lamborn) using a firearm resulting in death; and
  • Tony with drug conspiracy, racketeering conspiracy, and destructive‑device counts (of which he was acquitted).
• The district court repeatedly continued trial due to case complexity, volume of discovery, and COVID‑19 limitations on attorney‑client contact, ultimately trying the case in April 2022.

The Fourth Circuit:

• Continuance: Upheld the denial of a continuance requested four days before trial, finding a reasoned exercise of discretion and no specific prejudice.
• Substitution of counsel: Upheld denial of Lamborn’s last‑minute motion to substitute counsel, deeming it untimely, supported by an adequate inquiry, and not involving a total breakdown in communication; any error was harmless given counsel’s adequate trial performance.
• Sufficiency of the evidence: Affirmed Yoo and Peter’s convictions for kidnapping conspiracy, kidnapping resulting in death, VICAR murder (on an aiding‑and‑abetting theory), and killing while engaged in drug trafficking, emphasizing the strength of circumstantial and testimonial evidence and the deference owed to jury credibility determinations.
• Speedy Trial Act: Rejected Tony’s statutory claim. The court held:
  • Superseding indictments do not reset the trial clock for previously charged offenses (Myrick), but they do start a separate clock for truly “new and different” charges; and
  • Following other circuits, only delay before a Speedy Trial Act motion to dismiss counts in the violation calculation; later delays are “inconsequential.”
  • All relevant delays were properly excluded as “ends‑of‑justice” continuances and reasonable co‑defendant delays.
• Sixth Amendment speedy‑trial right: Even though the district court had not expressly resolved the constitutional claim, the Fourth Circuit conducted a Barker v. Wingo analysis de novo and found no violation; three of the four Barker factors (reason for delay, assertion of the right, and prejudice) favored the government.
• Tony’s sentencing: The court held that:
  • It was permissible, under then‑existing law, to consider acquitted conduct and a drug quantity higher than the jury’s minimum finding, so long as proved by a preponderance;
  • The later Sentencing Guidelines amendment restricting use of acquitted conduct is a substantive change and not retroactive on direct appeal; and
  • The firearm enhancement, leadership enhancement, and rejection of a co‑defendant disparity argument were all supported by the record and consistent with Fourth Circuit precedent.
• Supervised release: Found that all three life‑sentenced defendants had non‑mandatory supervised‑release conditions in their written judgments that were never orally pronounced or incorporated by reference at sentencing. Under Rogers and Mathis, this required vacatur of their sentences and remand for resentencing (or at least re‑pronouncement of the conditions). The government conceded this point.

The judgment was thus: affirmed in part, vacated in part, and remanded – with vacatur limited to the sentencing packages of Lamborn, Yoo, and Peter due to supervised‑release errors.

III. Analysis of the Opinion

A. Factual and Procedural Background

The Reccless Tigers gang operated in Northern Virginia, dealing primarily in marijuana and cocaine. The gang had sub‑factions – “Tiger Side” and “Club Tiger” – and was closely connected to the California‑based Asian Boyz gang. The defendants’ roles:

• Lamborn: One of the earliest members; deeply involved in violent enforcement.
• Yoo: Drug operations, including fronting marijuana; he was White’s creditor.
• Peter: Leader of Club Tiger; key organizer in the White kidnapping.
• Tony: Leader of Tiger Side and an influential figure in overall operations; linked to firebombing incidents (though acquitted at trial on those counts).

Brandon White, a former high school acquaintance indebted to Yoo, had testified against another gang member, David Nguyen, after being assaulted for nonpayment. In retaliation, Lamborn, Yoo, and Peter orchestrated White’s abduction: luring him through intermediaries, grabbing him in a parking lot, driving him across state lines to Richmond, and taking him into nearby woods, where shots and, according to testimony, stabbings occurred. White’s body was later found wrapped in a tarp, bearing both gunshot and sharp‑force wounds.

Initial indictments focused on narcotics; later superseding indictments followed the discovery of White’s body, expanding the charges to racketeering and homicide‑related counts. COVID‑19 complications, massive discovery, and multiple defendants prompted repeated continuances before trial began in April 2022. The joint trial culminated in:

• Life sentences (plus supervised release) for Lamborn, Yoo, and Peter; and
• A 312‑month sentence for Tony on racketeering and drug conspiracy counts.

B. Denial of the Last‑Minute Continuance

The defendants jointly moved for another continuance four days before trial, citing a large recent discovery production – including, they said, an expert forensic anthropology report, which they claimed they had not had time to address with a counter‑expert.

The Fourth Circuit applied established abuse‑of‑discretion standards:

• Morris v. Slappy: reversal requires an “unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay,” and even then, prejudice must be shown.
• LaRouche: generalized claims of unpreparedness are insufficient; specific prejudice is required.

The district court had already continued trial four times for COVID‑related restrictions on attorney‑client meetings and for discovery volume. In denying the final continuance, the court found:

• The vast bulk of the evidence had been available for about a year;
• Jencks material and cooperating witnesses had been disclosed; and
• Further delays would threaten witness safety in a case involving a murder committed to punish cooperation with law enforcement.

The Fourth Circuit held these were reasoned grounds, especially given:

• The government had complied with discovery orders and was actively helping organize materials; and
• Most of the last‑minute production was not central to the charged overt acts.

On prejudice, the court emphasized:

• Defendants identified no specific evidence they would have used differently with more time;
• They knew long in advance that the government would use a forensic anthropologist, so the need for a counter‑expert was apparent irrespective of the final report’s date; and
• The actual cross‑examination of the expert was “thorough,” and defendants pointed to no concrete deficiencies caused by the denied continuance.

Both doctrinally and practically, the opinion reinforces that in complex, long‑pending cases, a late‑breaking, unspecific claim of unpreparedness – especially after multiple prior continuances – will rarely meet the high bar for reversal.

C. Substitution of Counsel for Lamborn

Four business days before trial, Lamborn’s court‑appointed attorneys moved to withdraw at his request. Applying the familiar Smith factors, the court examined:

1. Timeliness: A request on the eve of trial is presumptively untimely. The court reasonably concluded that new counsel could not adequately prepare given the looming trial date and case complexity.
2. Adequacy of inquiry: The district court held a lengthy hearing, allowed Lamborn to explain his grievances, and examined counsel’s time records. It found:
   • A protective order limited what discovery could be physically provided to Lamborn;
   • Much of the remaining discovery was irrelevant to his particular defense; and
   • COVID‑19 had impeded in‑person visits, but counsel nonetheless spent considerable time preparing and meeting with him.
3. Extent of breakdown in communication: Lamborn complained of earlier periods with little contact and claimed he had requested withdrawal through his sister three months earlier. But once counsel learned of that, they visited “almost every week.” Lamborn admitted he did not renew any withdrawal request during those meetings. On that record, the court inferred that the earlier dissatisfaction had been effectively withdrawn and that no “total lack of communication” existed that would prevent an adequate defense.

Crucially, the Fourth Circuit also performed a harmless‑error analysis. It asked whether, regardless of any possible procedural missteps, Lamborn’s attorneys provided an “adequate defense” at trial. Lamborn did not argue they performed deficiently or that their work at trial was compromised by the earlier disagreements; his complaint centered on his later decision to dismiss them and proceed pro se for closing argument, culminating in a near‑physical confrontation with counsel. The panel treated that later rupture as irrelevant to whether denying substitution days before trial had prejudiced the defense.

Result: the denial was both within the district court’s discretion and, even if questionable, harmless.

D. Sufficiency of the Evidence Against Yoo and Peter

Yoo and Peter challenged the sufficiency of the evidence for:

• Kidnapping conspiracy;
• Kidnapping resulting in death;
• Murder in aid of racketeering (VICAR murder), on an aiding‑and‑abetting theory; and
• Killing while engaged in drug trafficking under 21 U.S.C. § 848(e)(1)(A).

The relevant standards are stringent:

• On a Rule 29 motion, the court asks whether any rational juror could find the elements proved beyond a reasonable doubt, viewing evidence in the light most favorable to the government and refraining from re‑weighing evidence or judging credibility (Burgos, Dennis, Perry).
• Convictions may rest entirely on circumstantial evidence; even uncorroborated testimony of a single witness may suffice if the jury credits it.

1. Kidnapping Conspiracy and Kidnapping Resulting in Death

For the kidnapping resulting in death count, the government had to prove seizure/abduction, holding, interstate transportation, and resultant death. For kidnapping conspiracy, it had to prove an agreement, knowing and willing participation, and an overt act.

Evidence included:

• Testimony from Fahad Abdulkadir that Peter promised to forgive Abdulkadir and his friend Sayf’s drug debts if they delivered White to Peter, and that Peter helped secure the car used to drive White to the setup location.
• Testimony from gang member Kevin Aagesen that he overheard Yoo and Peter planning to “set up” White in a parking lot so he would “get fucked up,” and that the plan involved multiple cars converging on White.
• Witnesses who saw Peter arrive wearing latex gloves, physically wrestle White into the car he shared with Lamborn, while Yoo waited in another car; both cars then traveled on the interstate; Yoo called Peter’s car to coordinate the next location.

Yoo and Peter argued alternative narratives – chiefly, that Abdulkadir and Sayf independently devised the plot to deal with White. The court rejected such alternative inferences as irrelevant to sufficiency review, reiterating that where the evidence supports multiple inferences, the jury’s choice governs. Given the testimony, the panel held that a reasonable juror could find that Yoo and Peter were not bystanders but active participants in both the conspiracy and the substantive kidnapping that resulted in White’s death.

2. Murder in Aid of Racketeering (VICAR) as Aiders and Abettors

To convict Yoo and Peter of VICAR murder under an aiding‑and‑abetting theory, the government had to show:

• Existence of a racketeering “enterprise” engaged in racketeering activity;
• The underlying murder in violation of federal or state law;
• The murder committed for pecuniary gain or to gain/maintain position in the enterprise; and
• That the defendant knowingly associated with and participated in the murder, sharing the principal’s criminal intent.

Key facts:

• On the way to the abduction, Yoo possessed a gun in the car.
• In Richmond, Lamborn and Peter forced White into the woods; Yoo joined them; Lamborn allegedly told them to run, but they remained.
• Gunshots were heard; the trio emerged without White; Yoo then placed his gun in a trash bag.
• Gang member Spencer Pak testified that Yoo admitted Peter had given him a knife and that Yoo used it to stab White. Yoo later gave another gang member a suitcase containing clothes and a knife to dispose of; White’s body bore sharp‑force injuries consistent with stabbing.

Yoo attacked Pak’s credibility and pointed to inconsistencies, but the appellate court refused to re‑assess witness credibility. The combination of (i) pre‑murder planning discussions, (ii) their presence and conduct in the woods, (iii) Lamborn’s own admissions, and (iv) Yoo’s knife confession and subsequent concealment activities, was more than sufficient to support the VICAR murder verdict under an aiding‑and‑abetting theory.

3. Killing While Engaged in Drug Trafficking (21 U.S.C. § 848(e)(1)(A))

This count required proof that:

• The defendants intentionally killed (or caused the intentional killing of) an individual; and
• They did so while engaging in, or working in furtherance of, a continuing criminal enterprise (CCE) – effectively, a major drug‑trafficking scheme.

The Fourth Circuit has held that a “meaningful” nexus between the killing and drug activity must exist; they cannot simply coincide in time (Hager).

Here, the nexus was straightforward: White owed Yoo a drug debt and had testified against a gang member in a case arising from gang enforcement of that debt. His murder was both a debt‑collection and retaliation measure, central to the gang’s drug‑enterprise discipline. Yoo and Peter did not seriously contest this connection; the court thus found the same evidentiary record that supported VICAR murder also amply supported killing while engaged in drug trafficking.

E. Tony’s Speedy Trial Act Claim

1. Multiple Indictments and Separate Speedy‑Trial Clocks

Tony’s Speedy Trial Act challenge was complicated by the series of superseding indictments:

• The third superseding indictment (2019) first charged Tony with drug conspiracy. His speedy‑trial clock for that count thus started upon his initial appearance in November 2019, with a baseline deadline of late January 2020, absent exclusions.
• The fourth superseding indictment (August 2020) added new charges against Tony: racketeering conspiracy and destructive‑device counts.

Relying on its then‑recent decision in United States v. Myrick, the panel reiterated:

• A superseding indictment does not reset the Speedy Trial Act clock for previously charged offenses or offenses that, under Double Jeopardy principles, are the “same offense” or should have been joined earlier; but
• Truly new and different charges – not required to be joined under Double Jeopardy – get their own, independent speedy‑trial clock keyed to the superseding indictment’s filing date.

Drug conspiracy and racketeering conspiracy are not the same offense under Devine, so Tony’s racketeering charge carried its own clock starting September 2, 2020, with a nominal deadline of November 11, 2020, absent exclusions. The drug‑conspiracy clock remained tied to his November 2019 appearance.

2. New Fourth Circuit Rule: Only Pre‑Motion Delay Counts

Tony moved to dismiss under the Speedy Trial Act on May 23, 2021. The panel adopted, for the first time in a published Fourth Circuit decision, the approach of multiple sister circuits (First, Sixth, Seventh, Ninth, Tenth, Eleventh):

A motion for dismissal under the Act “is effective only for periods of time which antedate the filing of the motion. Subsequent periods of delay, whether includable or excludable, are inconsequential.”

In other words, when a defendant claims an Act violation, the court examines only:

• How many non‑excludable days elapsed before the motion to dismiss was filed; and
• Whether that number exceeds seventy.

Any delay after the filing of the motion – whether excludable or not – does not bear on whether the Act was violated at the time the motion was decided. This rule brings clarity and predictability: defendants know that once they move to dismiss, the “clock” for purposes of that motion stops.

3. Ends‑of‑Justice Continuances and Case Complexity

The court then assessed whether enough non‑excludable time had elapsed before May 23, 2021. It found the relevant delays were properly excluded under:

• 18 U.S.C. § 3161(h)(7)(A): “Ends‑of‑justice” continuances, which are valid if the court finds that the interests of justice in granting the continuance outweigh the public and defendant’s interest in a speedy trial, taking into account factors such as complexity and defense‑counsel preparation needs.
• 18 U.S.C. § 3161(h)(6): Reasonable delay attributable to joined co‑defendants whose own trial clocks had not yet expired.

Although Tony argued the court did not recite the magic phrase “ends of justice,” the Fourth Circuit reiterated that no “magic words” are required (Hart), as long as the court’s on‑the‑record reasoning contemporaneously shows it was performing the required balancing. Here, for each continuance, the court emphasized:

• The complexity of a multi‑defendant, multi‑count racketeering and narcotics case spanning many years;
• The extraordinarily voluminous discovery;
• The number of potential witnesses; and
• The constraints on attorney‑client contact and trial logistics imposed by COVID‑19.

These considerations squarely fit § 3161(h)(7)’s factors and prior precedent (Velasquez, Pair). The panel found it “clear from the record” that the district court conducted the required balancing when granting each continuance, rather than conjuring a retroactive justification when denying Tony’s motion to dismiss.

4. Co‑Defendant Delay and Reasonableness

Under § 3161(h)(6), delays reasonably attributable to joined co‑defendants are also excluded. To test “reasonableness,” the panel applied Robinson:

• Did the defendant move for severance?
• Was there particularized prejudice from the delay, not just from joinder itself?
• How long was the delay, and was it out of line with prior precedent?

Tony had:

• Initially acquiesced in a trial date beyond the strict 70‑day limit;
• Agreed to at least one continuance; and
• Though he did later seek severance and assert speedy‑trial rights, he did not pursue an interlocutory appeal from the denial of severance.

The delays (roughly 18 months for drug conspiracy, 8 months for racketeering) were not per se unreasonable in the Fourth Circuit’s view, especially in a complex, multi‑defendant racketeering case during a global pandemic (see Robinson approving delays up to 22 months).

Critically, Tony failed to identify “particularized prejudice” attributable to the timing of trial. His main complaint – that being tried alongside murderous co‑defendants was prejudicial – went to joinder itself, not delay, and thus did not satisfy § 3161(h)(6). Accordingly, the full period up to May 23, 2021 was excludable, and no Speedy Trial Act violation occurred.

F. The Sixth Amendment Speedy‑Trial Claim

Tony also asserted a constitutional speedy‑trial violation under the Sixth Amendment. The district court addressed only the statutory claim and overlooked the constitutional argument, which Tony had raised perfunctorily. The Fourth Circuit:

• Declined to treat the claim as forfeited, despite its sparse briefing below; but
• Chose to resolve it directly, rather than remand, since the Barker v. Wingo analysis is predominantly legal and heavily overlaps with the Act findings already made.

Applying the four Barker factors:

1. Length of delay: The time from indictment/initial appearance to trial (well over a year) was long enough to be “presumptively prejudicial” under Doggett and Burgess, triggering the full Barker inquiry. This factor favored Tony.
2. Reason for delay: Strongly favored the government. The continuances were driven by:
   • Case complexity and scope of discovery (a recognized “valid reason” for delay); and
   • COVID‑19, characterized by the court (citing Pair) as an “unpredictable and unavoidable public health crisis” that legitimately constrained trial operations and attorney access.
   Tony’s only counter was a bare assertion that delays were “unnecessary,” which the court found insufficient to rebut the district court’s fact‑based explanation.
3. Assertion of the right: At best neutral to slightly favoring the government. While Tony did eventually move to dismiss and request severance, he had:
   • Failed to object to several earlier delays;
   • Agreed to at least one continuance and a trial date beyond 70 days; and
   • Not consistently or vigorously asserted a desire for a prompt trial, undercutting the claim that he truly wanted one from the outset.
4. Prejudice: Tony claimed:
   • His ability to investigate and identify witnesses was impaired; and
   • Pretrial detention, particularly under pandemic restrictions, impeded consultation with counsel.
   However, he named no witness whose memory faded or became unavailable due to delay, identified no lost evidence, and offered only “generalized prejudice” inherent in any incarceration and any lapse of time. Under Robinson and Hall, such generalities do not establish Barker prejudice, especially where the most important prejudice factor – impairment of the defense – is unsubstantiated.

With three of four factors pointing against Tony, the panel held there was no Sixth Amendment violation. It reiterated that it is “unusual” for a case to satisfy the Speedy Trial Act yet fail the constitutional standard, and this case did not present such an anomaly.

G. Tony’s Sentencing Challenges

1. Use of Acquitted Conduct and Later Guideline Amendment

The jury found that Tony conspired to distribute at least 1,000 kilograms of marijuana and 500 grams of cocaine, and acquitted him of the destructive‑device counts. Nonetheless:

• The presentence report attributed 3,400 kilograms of marijuana and 15 kilograms of cocaine to him, raising his drug quantity above the jury’s minimum finding.
• The district court applied a two‑level violence enhancement under U.S.S.G. § 2D1.1(b)(2) based on firebombing conduct underlying the acquitted destructive‑device charges, finding by a preponderance that Tony ordered those attacks.

At the time of sentencing, Fourth Circuit precedent – e.g., Medley – allowed district courts to consider uncharged or acquitted conduct for guideline purposes, if proved by a preponderance of the evidence. Tony did not argue that the court clearly erred factually; his primary argument was equitable: that, in light of the subsequent Sentencing Guidelines amendment codified at § 1B1.3(c) (restricting use of acquitted conduct), the panel should vacate his sentence “as an act of compassion.”

The Fourth Circuit rejected this invitation, emphasizing:

• It had long held that only “clarifying,” not substantive, amendments to the Guidelines apply retroactively on direct appeal (Goines);
• The acquitted‑conduct amendment is substantive because it changed the law in the circuit, and thus cannot be applied retroactively; and
• At the time of sentencing, the district court faithfully applied then‑controlling law, so no legal error occurred.

Furthermore, any potential error in drug quantity was harmless. Under § 2D1.1(c), offenses involving 3,000 to 10,000 kilograms of marijuana equivalent receive base offense level 32. The undisputed marijuana quantity alone (3,400 kg) justified level 32, regardless of whether the cocaine quantity was 500 grams or 15 kilograms. Thus, even if the court had strictly limited itself to the jury’s minimum cocaine finding, Tony’s base offense level would have been unchanged.

2. Firearm Enhancement

The district court applied a two‑level enhancement under § 2D1.1(b)(1) for possession of a firearm. To sustain that enhancement, the government had to show:

• The weapon was present; and
• It was sufficiently connected to the drug offense – that is, that it was not “clearly improbable” that the gun was related to drug trafficking, and there was a temporal and spatial link between the gun, the defendant, and the drug activity (Mondragon).

Testimony established that Tony kept a gun at his house and that his house was a location where marijuana shipments were received and drugs stored. Under Fourth Circuit precedent (Bolton), discovery of a firearm at a place where a drug conspiracy is carried out or furthered is enough to link the weapon to the conspiracy. Tony offered no argument that it was “clearly improbable” that the firearm related to drug trafficking. The panel therefore upheld the enhancement, finding no clear error in the court’s factual determination.

3. Leadership Role Enhancement

The court also imposed a four‑level enhancement under § 3B1.1(a) for Tony’s leadership role in criminal activity involving five or more participants or otherwise extensive operations. Relevant considerations under the guideline commentary include:

• Decision‑making authority;
• Recruitment of accomplices;
• Degree of planning and organizing;
• Control over others; and
• Share of the profits.

The evidence showed that Tony:

• Was a founding or early member of the Reccless Tigers;
• Founded and led the Tiger Side offshoot;
• Recruited and directed other members in drug distribution;
• Was viewed by others as the leader from whom they “took orders” regarding drug shipments and money.

The district court credited cooperator testimony to this effect. Given the deferential clear‑error standard on factual findings, the panel held that the leadership enhancement was adequately supported.

4. Alleged Unwarranted Sentencing Disparities

Tony argued that his 312‑month sentence created unwarranted disparities vis‑à‑vis other co‑defendants who, he claimed, engaged in similar conduct but received lower sentences. He relied on 18 U.S.C. § 3553(a)(6), which directs courts to consider the need to avoid “unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct.”

The Fourth Circuit, citing its recent decision in Lawson, clarified that:

• The primary purpose of § 3553(a)(6) is to avoid nationwide unwarranted sentencing disparities, not to equalize sentences among codefendants in a particular case;
• A sentence is not unreasonable merely because it is higher than those of some co‑defendants; and
• Different roles and culpability can justify different sentences in the same case.

Tony provided no evidence that his sentence was out of step with national norms for high‑level leadership in long‑running, large‑quantity drug conspiracies with associated violence. The district court explicitly addressed his disparity argument and explained that his role as an “undeniable” leader at the “epicenter” of the gang’s drug enterprise justified a stiffer sentence. That explanation satisfied the requirement in Bollinger that courts address non‑frivolous sentencing arguments and articulate their reasons for rejecting them.

H. Supervised‑Release Pronouncement Errors and the Rogers Rule

Finally, the panel addressed a discrete but consequential procedural defect in the sentencing of Lamborn, Yoo, and Peter. All three received life imprisonment plus terms of supervised release. At their sentencing hearings, the district court orally pronounced only a limited number of “special conditions” for supervised release.

However, the written judgments:

• Included all Guideline “standard” conditions of supervised release (which, though labeled “standard,” are not mandated by statute); and
• Added at least one additional special condition not mentioned at sentencing – for example, a requirement that Lamborn make a good‑faith effort to obtain his GED, or prohibitions on incurring new credit charges without approval.

Under United States v. Rogers and United States v. Mathis, the law in the Fourth Circuit is clear:

• A defendant has a right to be present when sentence is imposed; that includes hearing any non‑mandatory conditions of supervised release.
• All such conditions – including Guideline “standard” conditions – must be either:
  • Specifically recited at the sentencing hearing; or
  • Clearly and expressly incorporated by reference (e.g., “all standard conditions of supervised release as set forth in [document X]”).
• If the written judgment contains non‑mandatory conditions that were not orally pronounced or incorporated by reference, the written judgment conflicts with the oral sentence and must be corrected.

Here, the district court:

• Did not orally incorporate the standard conditions by reference; and
• Did not orally pronounce the extra special conditions later appearing in the written judgments.

Comparing the sentencing transcripts to the written judgments, the panel found straightforward Rogers error. The government conceded. The remedy: vacate the sentences (for Lamborn, Yoo, and Peter only) and remand for resentencing – at least to the extent necessary to re‑pronounce or modify the supervised‑release conditions in defendants’ presence.

Notably, the convictions themselves and the underlying life terms were not disturbed; only the sentencing packages must be reopened to cure the supervised‑release defect.

IV. Simplifying Key Legal Concepts

1. Racketeering and VICAR Murder

A “racketeering enterprise” is an ongoing organization or group of individuals associated in fact, engaged in a pattern of criminal activity (e.g., drug trafficking, extortion, murder). Under the Violent Crimes in Aid of Racketeering (VICAR) statute, it is a federal crime to commit certain violent acts – including murder – for the purpose of gaining entrance to, maintaining, or increasing status within such an enterprise.

2. Killing While Engaged in a Continuing Criminal Enterprise (21 U.S.C. § 848(e)(1)(A))

Section 848(e)(1)(A) punishes intentional killings committed while the defendant is engaged in, or working in furtherance of, a “continuing criminal enterprise” – essentially, a large‑scale, organized drug‑trafficking operation involving multiple participants and significant quantities. The government must show a “meaningful nexus” between the killing and the enterprise – that the killing served the enterprise’s interests, such as enforcing debts or silencing witnesses.

3. Speedy Trial Act vs. Sixth Amendment Right

• Speedy Trial Act (18 U.S.C. § 3161 et seq.): A statutory scheme requiring trial to begin within 70 days of indictment or first appearance, subject to various exclusions (ends‑of‑justice continuances, co‑defendant delays, motion pendency, etc.). Violations require dismissal of the indictment, with or without prejudice.
• Sixth Amendment: A constitutional guarantee of a “speedy” trial. Courts apply the Barker v. Wingo four‑factor balancing test: (1) length of delay; (2) reason; (3) defendant’s assertion of the right; (4) prejudice.

Compliance with the Act usually, though not always, means the Sixth Amendment has also been satisfied.

4. “Ends‑of‑Justice” Continuances

These are continuances justified by findings that the interests of justice in delaying trial outweigh the defendant’s and public’s interest in speed. Common valid reasons:

• Case complexity (many defendants, counts, or long time span);
• Voluminous discovery; and
• Need to give counsel reasonable time to prepare, especially under unusual circumstances (e.g., a pandemic).

The judge must explain these reasons on the record, but need not use the exact statutory phrase “ends of justice.”

5. Acquitted Conduct at Sentencing

Traditionally, federal courts (including the Fourth Circuit, at the time of Tony’s sentencing) allowed judges to increase guideline ranges based on conduct the defendant was acquitted of by the jury, as long as the judge found that conduct proved by a preponderance of the evidence. This reflects a difference between:

• Guilt (beyond a reasonable doubt, limited to elements actually found by the jury); and
• Sentencing facts (often found by the judge at a lower standard when Guidelines were advisory).

The Sentencing Commission has since adopted an amendment limiting this practice in the Guidelines, but that amendment is substantive and generally not retroactive on direct appeal absent specific authorization.

6. Supervised Release and the Rogers Rule

“Supervised release” begins after a prison term ends and imposes conditions on the defendant’s liberty (e.g., reporting to a probation officer, employment requirements, travel limits). There are:

• Mandatory conditions (e.g., no new crimes, DNA collection) required by statute; and
• Non‑mandatory conditions (often called “standard” or “special”) chosen by the court.

Under Rogers and Mathis, non‑mandatory conditions must be:

• Spoken in open court at sentencing; or
• Expressly incorporated by reference to an identifiable list of conditions.

If conditions appear only in the written judgment and were never announced in court, they are invalid and require resentencing or correction.

V. Broader Impact and Implications

1. Clarified Speedy Trial Act Mechanics

The most significant precedential contribution of United States v. Lamborn is its formal adoption of the principle that, for Speedy Trial Act dismissal motions, only pre‑motion delay matters. This rule:

• Aligns the Fourth Circuit with other circuits (First, Sixth, Seventh, Ninth, Tenth, Eleventh) and provides needed uniformity;
• Gives practitioners a clear benchmark: once a motion to dismiss is filed, the relevant “clock” stops for that motion; and
• Prevents defendants from leveraging post‑motion delays (often driven by defense motions, complex pretrial litigation, or logistical issues) to obtain dismissal for an already‑filed violation claim.

Coupled with Myrick’s careful treatment of superseding indictments, the decision offers a refined, nuanced framework for timing objections in multi‑indictment, multi‑defendant prosecutions.

2. High Bar for Sixth Amendment Speedy‑Trial Claims in Complex, Pandemic‑Era Cases

The panel’s Barker analysis underscores the difficulty of prevailing on constitutional speedy‑trial claims in complex prosecutions, especially where delays are attributed to case complexity and COVID‑19:

• General invocations of investigative difficulty or pretrial anxiety are insufficient; defendants must identify specific, concrete prejudice – lost witnesses, faded memories tied to delay, or demonstrably impaired defense strategies.
• Defendants who acquiesce in, or affirmatively request, early continuances will struggle to persuade courts that they truly “wanted” a speedy trial throughout.
• Courts are likely to treat pandemic‑related delays as legitimate reasons, as long as judges explain, on the record, how COVID‑19 affected preparation or trial logistics.

3. Substitution of Counsel and Late‑Breaking Dissatisfaction

The decision reinforces that:

• Motions to substitute counsel filed on the eve of trial are presumptively disfavored;
• Even a period of poor communication will not compel substitution if counsel thereafter meets frequently with the defendant and effectively prepares for trial; and
• On appeal, the focus will include not just the relationship dynamics but also actual trial performance – if counsel’s performance at trial appears competent and thorough, any earlier relational problems are likely to be deemed harmless.

For defense counsel, Lamborn illustrates the importance of documenting meeting times and preparation efforts; such records can blunt later claims of abandonment or non‑communication.

4. Evidentiary Standards in Gang‑Murder Prosecutions

On the merits of the kidnapping and murder convictions, the opinion strongly endorses:

• Reliance on circumstantial evidence in multi‑participant violent crimes where no one witness saw the entire event;
• The acceptability of convictions based largely on cooperator testimony, even when testimony is arguably inconsistent or self‑serving, provided the jury was entitled to credit it; and
• The sufficiency of evidence showing pre‑planning, movement to the murder location, shared weapons, and post‑crime concealment activity to sustain aiding‑and‑abetting liability.

Prosecutors in gang and racketeering cases can expect courts in the Fourth Circuit to accord considerable deference to juries’ reconstruction of events from partial accounts and circumstantial inferences.

5. Sentencing: Transition from Old to New Acquitted‑Conduct Regime

Although the Fourth Circuit declined to apply the new acquitted‑conduct guideline amendment retroactively on direct appeal, Lamborn signals an important transition period:

• For pre‑amendment sentencings, using acquitted conduct remains lawful in the Fourth Circuit and will be upheld, barring factual clear error.
• For post‑amendment sentencings, district courts will be constrained by the new Guidelines, which limit or forbid relying on acquitted conduct in guideline calculations.
• Defendants sentenced before the amendment, like Tony, will generally not obtain relief on direct appeal based on the new rule, absent some independent constitutional or statutory violation.

This opinion thus marks the closing chapter of the Fourth Circuit’s full acceptance of acquitted‑conduct sentencing for older cases, while acknowledging that the Guidelines landscape has changed for future ones.

6. Continuing Importance of Rogers for Supervised Release

Finally, the decision confirms that Rogers is not a one‑off technicality but a robust doctrine enforced even in high‑stakes cases involving life sentences. Appellate courts will scrutinize:

• Whether every non‑mandatory supervised‑release condition appears in the oral pronouncement or is clearly incorporated by reference; and
• Whether the written judgment adds conditions not mentioned in open court.

For district judges and probation offices, Lamborn is a pointed reminder to ensure meticulous alignment between oral sentences and written judgments, especially regarding supervised‑release terms. For defendants and defense counsel, it offers a potent and often overlooked avenue for partial relief on appeal.

VI. Conclusion

United States v. Lamborn is a comprehensive reaffirmation of existing Fourth Circuit doctrine across a broad spectrum of criminal procedure issues, with two notable refinements:

• It firmly establishes that, in Speedy Trial Act litigation, only delays preceding a motion to dismiss count in assessing a violation, and integrates that rule with recent case law on superseding indictments; and
• It underscores, via vacatur of three life‑sentenced defendants’ sentences, that supervised‑release conditions must be orally imposed or incorporated, and that silent additions in written judgments are impermissible.

While the defendants secured only limited relief – a remand to correct supervised‑release conditions – the opinion’s broader doctrinal value lies in its clear articulation of standards governing continuances, substitution of counsel, sufficiency review in gang‑murder contexts, the interplay between statutory and constitutional speedy‑trial protections, and the transitional treatment of acquitted conduct at sentencing.

In the aggregate, Lamborn strengthens the Fourth Circuit’s framework for managing complex, multi‑defendant prosecutions and provides practitioners with sharper tools and clearer expectations concerning trial timing, sentencing, and post‑release supervision.