United States v. Lamborn (Tony Le): Fourth Circuit Adopts Motion‑Cutoff Rule for Speedy Trial Act and Confirms Non‑Retroactivity of the Acquitted‑Conduct Guideline Amendment

I. Introduction

This published opinion of the United States Court of Appeals for the Fourth Circuit arises from a multi‑defendant federal prosecution of the “Reccless Tigers,” a Northern Virginia drug gang and its offshoots, Tiger Side and Club Tiger. The defendants – Joseph Duk‑Hyun Lamborn (“Lamborn”), Young Yoo (“Yoo”), Peter Le (“Peter”), and Tony Minh Le (“Tony”) – were tried jointly in the Eastern District of Virginia for an array of offenses, most notably the kidnapping and killing of Brandon White and large‑scale marijuana and cocaine trafficking.

The case presents a dense mix of procedural and substantive criminal law issues: (1) denial of a last‑minute continuance and motions to substitute counsel; (2) sufficiency of the evidence on kidnapping, murder in aid of racketeering, and killing while engaged in drug trafficking; (3) the interaction of the Speedy Trial Act and the Sixth Amendment’s speedy trial guarantee in the context of COVID‑era continuances and superseding indictments; (4) the continued permissibility of using acquitted conduct at sentencing notwithstanding a later Guidelines amendment; (5) application of firearm, leadership, and violence enhancements; and (6) the now well‑developed Fourth Circuit rule that all non‑mandatory supervised release conditions must be orally announced at sentencing.

Chief Judge Diaz, writing for a unanimous panel (Chief Judge Diaz, Judge Gregory, and Senior Judge Keenan), ultimately:

Affirms all convictions for all four defendants.
Affirms Tony Le’s 312‑month sentence against Speedy Trial Act, Sixth Amendment, and Guidelines challenges.
Vacates only the sentences of Lamborn, Yoo, and Peter (who had received life terms) to correct inconsistencies between oral pronouncements and written judgments on supervised release conditions, and remands for resentencing on that limited point.

Two doctrinally important holdings emerge:

The court formally adopts the “motion‑cutoff” rule under the Speedy Trial Act: when a defendant moves to dismiss an indictment under the Act, only delay before the motion is filed counts for purposes of that motion; post‑motion delay is irrelevant.
The court holds that the Sentencing Guidelines amendment restricting consideration of acquitted conduct (§ 1B1.3(c)) is a substantive change and therefore not retroactive on direct appeal. District courts sentencing under then‑existing law did not err in considering acquitted conduct proved by a preponderance of the evidence.

This commentary explains the decision, situates it in existing precedent, and explores its likely impact on federal criminal practice – especially Speedy Trial litigation, COVID‑era continuances, and sentencing in the wake of the acquitted‑conduct amendment.

II. Summary of the Opinion

A. Factual and Procedural Background

The Reccless Tigers operated in Northern Virginia selling marijuana and cocaine. Brandon White, an associate who had been fronted marijuana by Yoo, owed a longstanding drug debt and had testified against David Nguyen, a gang member who assaulted him over that debt. In retaliation for this “snitching,” Lamborn, Yoo, and Peter orchestrated White’s abduction and murder:

White’s friends, themselves indebted to the gang, lured him to a parking lot in exchange for debt forgiveness promised by Peter.
Lamborn and Peter forced White into their car, with Yoo in another vehicle.
They drove interstate to Richmond, Virginia, took White into nearby woods, and witnesses heard gunshots.
Lamborn later admitted to shooting White; Yoo admitted stabbing White with a knife supplied by Peter; White’s body bore both gunshot and sharp force injuries.

The initial (third superseding) indictment charged, inter alia, drug conspiracy. After White’s body was found, a fourth superseding indictment added new counts:

For Lamborn, Yoo, and Peter: racketeering (RICO) conspiracy; kidnapping conspiracy and kidnapping resulting in death; murder in aid of racketeering (VICAR); killing while engaged in drug trafficking; use or discharge of a firearm resulting in death; and other drug and firearm counts.
For Tony (not involved in White’s killing): racketeering conspiracy and destructive device counts (related to alleged firebombings), in addition to the original drug conspiracy.

After substantial pandemic‑related and complexity‑based continuances, a joint trial took place in April 2022. The jury:

Convicted Lamborn, Yoo, and Peter of the major RICO, VICAR, kidnapping, and drug‑murder counts, and imposed life sentences.
Convicted Tony of RICO conspiracy and drug conspiracy, attributing at least 1,000 kg of marijuana and 500 g of cocaine; it acquitted him of the destructive device counts.

The district court adopted a presentence report (PSR) that attributed 3,400 kg of marijuana and 15 kg of cocaine to Tony, and applied enhancements for leadership, firearm possession, and use of violence. Tony was sentenced to 312 months.

B. Issues on Appeal and Holdings

Last‑minute continuance (all defendants):
The court held the district court did not abuse its discretion in denying a continuance requested four days before trial to review late‑produced discovery. The court also found no prejudice.
Substitution of counsel (Lamborn):
The court upheld denial of Lamborn’s motion to substitute appointed counsel filed days before trial, finding it untimely, adequately inquired into, and not supported by a total breakdown in communication. Any error would have been harmless given counsel’s adequate performance.
Sufficiency of evidence (Yoo & Peter):
The court found ample evidence for convictions on kidnapping conspiracy, kidnapping resulting in death, murder in aid of racketeering, and killing while engaged in drug trafficking under aiding‑and‑abetting theories.
Speedy Trial Act (Tony):
The court rejected Tony’s statutory speedy trial claim, holding:
- Superseding indictments operate under Myrick: new, non‑“same offense” charges get separate clocks; preexisting charges do not reset.
- All delays before Tony’s motion to dismiss were properly excluded under “ends of justice” continuances and co‑defendant delay.
- New rule: adopting sister‑circuit authority, only time before the filing of a Speedy Trial Act motion counts toward dismissal; post‑motion delay is “inconsequential” for that motion.
Sixth Amendment speedy trial (Tony):
Applying the Barker v. Wingo factors de novo (because the district court did not expressly rule), the court held no constitutional violation occurred: although the delay was presumptively prejudicial, the reasons for delay (complex, multi‑defendant case and COVID‑19), Tony’s inconsistent assertion of the right, and lack of particularized prejudice all weighed against him.
Sentencing (Tony): procedural reasonableness:
- Acquitted conduct and drug quantity: It was permissible under then‑binding Fourth Circuit law (Medley) for the district court to attribute 15 kg of cocaine and consider destructive‑device conduct proven by a preponderance of the evidence, despite jury acquittals or lower findings. The court:
  - Recognized the later Guidelines amendment (U.S.S.G. § 1B1.3(c)) limiting acquitted‑conduct use.
  - Held that amendment is substantive, not clarifying, so it does not apply retroactively on direct appeal.
  - Found any error in cocaine quantity harmless because marijuana quantity alone fixed the same base offense level.
- Firearm enhancement: Affirmed a § 2D1.1(b)(1) firearm enhancement based on credible testimony that Tony kept a gun at his house where he received marijuana shipments, establishing the required temporal and spatial nexus.
- Leadership enhancement: Affirmed a four‑level § 3B1.1(a) organizer/leader enhancement based on evidence that Tony was an early, central member; founded Tiger Side; recruited others; directed drug distribution and collection; and was treated as the leader by co‑conspirators.
- Sentencing disparity (co‑defendants): Applying United States v. Lawson, the court held § 3553(a)(6) focuses on nationwide uniformity, not mere co‑defendant parity, and found Tony’s higher sentence justified by his leadership role.
Supervised release conditions (Lamborn, Yoo & Peter):
Under Rogers and Mathis, non‑mandatory supervised release conditions must be announced at sentencing or expressly incorporated by reference. Because the written judgments contained standard and special conditions not orally pronounced or incorporated, the court vacated their sentences and remanded for resentencing limited to aligning oral and written conditions.

The judgment: affirmed in part, vacated in part, and remanded.

III. Analysis

A. Precedents and Prior Cases Cited

1. Continuances and Trial Preparation

Morris v. Slappy, 461 U.S. 1 (1983) – Provides the high bar for overturning denial of a continuance: only an “unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay” is an abuse of discretion.
United States v. Williams, 445 F.3d 724 (4th Cir. 2006) – Emphasizes deference to trial courts and examines whether cross‑examination at trial reveals adequate preparation.
United States v. LaRouche, 896 F.2d 815 (4th Cir. 1990) – Holds that mere claims of being unprepared, without specifying what would have been done with more time, are insufficient to show prejudice.
United States v. Hedgepeth, 418 F.3d 411 (4th Cir. 2005) – Establishes that, even if a continuance was wrongly denied, a defendant must show specific prejudice to obtain reversal.

Invoking these cases, the panel underlined that the district court’s refusal to delay a multi‑year‑old, multi‑continuance case four days before trial—especially where most discovery had been available far earlier and witness‑safety concerns loomed—was well within its discretion.

2. Substitution of Counsel

United States v. Smith, 640 F.3d 580 (4th Cir. 2011) – The leading Fourth Circuit framework, identifying three factors:
1. Timeliness of the substitution motion.
2. Adequacy of the court’s inquiry into the defendant’s complaints.
3. Whether conflict caused such a breakdown in communication as to prevent an adequate defense.
United States v. Horton, 693 F.3d 463 (4th Cir. 2012) – Confirms abuse‑of‑discretion review and emphasizes harmless‑error analysis focused on whether counsel nonetheless mounted an adequate defense.
United States v. Blackledge, 751 F.3d 188 (4th Cir. 2014) – Illustrates untimeliness where substitution is sought on the eve of trial, risking disruption of schedule and inadequate preparation time for new counsel.
United States v. Muslim, 944 F.3d 154 (4th Cir. 2019) – Endorses thorough district court inquiries into attorney‑client conflict as part of the Smith analysis.
United States v. Mullen, 32 F.3d 891 (4th Cir. 1994) – A contrasting case where virtually no attorney‑client contact and lack of trial preparation warranted finding ineffective assistance.

Here, the court found that the district judge did precisely what Smith and Muslim require: he conducted a detailed hearing, examined the reasons for Lamborn’s dissatisfaction (limited discovery access and sporadic communication largely explained by protective orders and COVID), and verified that counsel had been preparing actively. Crucially, Lamborn had not renewed his earlier, informal request to change counsel once counsel began visiting him weekly, supporting a finding that the relationship had stabilized until the eve of trial.

3. Sufficiency of the Evidence in Conspiracy and Murder Cases

United States v. Burgos, 94 F.3d 849 (4th Cir. 1996) (en banc) – Sets out the extremely deferential standard of review: a conviction must be sustained if any rational juror could find guilt beyond a reasonable doubt, viewing evidence in the government’s favor.
United States v. Dennis, 19 F.4th 656 (4th Cir. 2021) – Reiterates that defendants face a “heavy burden” on sufficiency challenges and that “potentially innocent” alternative explanations or credibility disputes are for the jury.
United States v. Perry, 335 F.3d 316 (4th Cir. 2003) – Appellate courts cannot weigh evidence or judge credibility; that is the jury’s domain.
United States v. Love, 767 F.2d 1052 (4th Cir. 1985) – Mere presence at the scene of a crime does not make one a conspirator; there must be proof of agreement and knowing participation.
United States v. Camara, 908 F.3d 41 (4th Cir. 2018) – Lays out the basic structure of conspiracy: agreement, knowing and willing participation, and an overt act.
United States v. Lentz, 524 F.3d 501 (4th Cir. 2008) – States the elements of federal kidnapping resulting in death under 18 U.S.C. § 1201.
United States v. Williams, 342 F.3d 350 (4th Cir. 2003) – Clarifies aiding‑and‑abetting liability: the defendant must knowingly associate with and participate in the criminal venture, sharing the principal’s criminal intent.
United States v. Hager, 721 F.3d 167 (4th Cir. 2013) – Interprets 21 U.S.C. § 848(e)(1)(A) (killing while engaged in a continuing criminal enterprise), requiring a meaningful—not merely temporal—nexus between the murder and the drug conspiracy.
United States v. Ortiz‑Orellana, 90 F.4th 689 (4th Cir. 2024) – Sets out the elements of murder in aid of racketeering (VICAR) under 18 U.S.C. § 1959.

In applying these precedents, the panel found that evidence from insiders like Abdulkadir, Aagesen, and Pak, combined with circumstantial proof (calls coordinating the abduction, latex gloves, weapons, admissions afterward, and White’s injuries), comfortably supported Yoo and Peter’s roles as coconspirators and aiders/abettors in the kidnap‑murder carried out for gang purposes and connected to drug debts.

4. Speedy Trial Act and Superseding Indictments

18 U.S.C. §§ 3161–3162 – The Speedy Trial Act’s 70‑day clock and exclusion provisions.
Zedner v. United States, 547 U.S. 489 (2006) – Requires contemporaneous “ends of justice” findings on the record; courts cannot retroactively justify continuances.
United States v. Pair, 84 F.4th 577 (4th Cir. 2023) – Reinforces that ends‑of‑justice continuances require on‑record findings, but “magic words” are not required; also recognizes COVID‑19 as a legitimate basis for delay.
United States v. Hart, 91 F.4th 732 (4th Cir. 2024) – Confirms that courts need not recite statutory language verbatim; substantive reasoning suffices if recorded contemporaneously.
United States v. Myrick, 150 F.4th 308 (4th Cir. 2025) – Holds that superseding indictments do not reset the speedy trial clock for existing offenses or offenses that must be joined under double jeopardy principles; new and different charges get their own clocks.
United States v. Devine, 40 F.4th 139 (4th Cir. 2022) – Clarifies “same offense” for double jeopardy purposes, which guides whether a superseding charge shares a clock with prior counts.
United States v. Carey, 746 F.2d 228 (4th Cir. 1984) – Holds that an exclusion as to one co‑defendant is generally applicable to all joined defendants under § 3161(h)(6).
United States v. Robinson, 55 F.4th 390 (4th Cir. 2022) – Discusses reasonableness of co‑defendant delay, looking to length of delay, severance efforts, and particularized prejudice.

Most significantly, the panel expressly adopted the rule, previously followed by several other circuits, that only pre‑motion time counts in analyzing a Speedy Trial Act motion to dismiss. It relied on cases from the First, Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits (Connor, Wirsing, Mayes, Sherer, Mathis, Weidenburner) to justify this alignment.

5. Sixth Amendment Speedy Trial

Barker v. Wingo, 407 U.S. 514 (1972) – The four‑factor balancing test:
1. Length of delay.
2. Reason for delay.
3. Defendant’s assertion of the right.
4. Prejudice to the defendant.
Doggett v. United States, 505 U.S. 647 (1992) – Establishes that delay approaching a year is presumptively prejudicial, triggering Barker analysis.
United States v. Grimmond, 137 F.3d 823 (4th Cir. 1998) – The defendant bears the burden to show the Barker factors, on balance, favor him.
United States v. Burgess, 684 F.3d 445 (4th Cir. 2012) – Articulates the standard of review and allocation of burdens under Barker.
United States v. Hall, 551 F.3d 257 (4th Cir. 2009) – Recognizes that the serious, complex nature of conspiracy charges and need for preparation can justify substantial delay.
United States v. Ali, 991 F.3d 561 (4th Cir. 2021) – Allows appellate courts to affirm on any record‑supported ground even if the district court’s reasoning was incomplete.
United States v. Pair, 84 F.4th 577 (4th Cir. 2023) – Emphasizes that it is unusual for the Sixth Amendment to be violated where the Speedy Trial Act was satisfied; also holds that generalized hardship from COVID‑era incarceration does not alone establish constitutional prejudice.

Applying these, the court—essentially “substituting” for the missing Sixth Amendment ruling from the now‑retired district judge—held that Barker weighed 3–1 against Tony: only length of delay favored him; reasons, assertion, and prejudice favored the government.

6. Sentencing: Acquitted Conduct, Enhancements, and Disparity

United States v. Medley, 34 F.4th 326 (4th Cir. 2022) – Confirms that, prior to the new Guidelines amendment, district courts could consider acquitted or uncharged conduct at sentencing if proved by a preponderance of the evidence.
U.S.S.G. § 1B1.3(c) (new amendment) – Now generally prohibits using acquitted conduct to determine the guideline range, though the court here treats it as a later substantive change, not applicable retroactively.
United States v. Goines, 357 F.3d 469 (4th Cir. 2004) – Holds that only clarifying amendments, not substantive ones, apply retroactively on direct appeal.
United States v. Shanks, No. 24‑12247, 2025 WL 1621179 (11th Cir. June 9, 2025) – Cited for the proposition that the acquitted‑conduct amendment is substantive and not retroactive.
United States v. Mondragon, 860 F.3d 227 (4th Cir. 2017) – Details standards for applying the § 2D1.1(b)(1) firearm enhancement: temporal and spatial relation among defendant, weapon, and drug activity.
United States v. Bolton, 858 F.3d 905 (4th Cir. 2017) – In a conspiracy context, discovery of a gun where the conspiracy was carried out is sufficient to link it to the conspiracy.
United States v. McAllister, 272 F.3d 228 (4th Cir. 2001) – Similar nexus requirement for firearm possession in drug offenses.
United States v. Banks, 10 F.3d 1044 (4th Cir. 1993) – Standard of review for factual findings at sentencing (clear error).
United States v. Pauley, 511 F.3d 468 (4th Cir. 2007) – General framework for appellate review of sentencing decisions for procedural and substantive reasonableness.
United States v. Lawson, 128 F.4th 243 (4th Cir. 2025) – Clarifies that § 3553(a)(6)’s focus is on nationwide disparities, not co‑defendant parity.
United States v. Bollinger, 798 F.3d 201 (4th Cir. 2015) – Requires district courts to address non‑frivolous sentencing arguments and explain why they are rejected.

Relying on these authorities, the panel concluded that:

At the time of Tony’s sentencing, reliance on acquitted conduct and incremental drug quantities was squarely permitted; the later Guidelines amendment could not retroactively invalidate that sentence.
Ample record evidence supported firearm and leadership enhancements, and the district court adequately addressed Tony’s disparity argument in line with Lawson and Bollinger.

7. Supervised Release Conditions

United States v. Rogers, 961 F.3d 291 (4th Cir. 2020) – A foundational case holding that non‑mandatory conditions of supervised release (including “standard” Guideline conditions) must be orally pronounced at sentencing or expressly incorporated by reference; otherwise, the written judgment cannot add them later.
United States v. Mathis, 103 F.4th 193 (4th Cir. 2024) – Reaffirms Rogers and requires vacatur and remand where written judgment includes non‑mandatory conditions not pronounced orally.

Applying these cases, the panel found a textbook Rogers error: the district court orally identified only a handful of “special conditions,” but the written judgments later appended the full suite of “standard” conditions plus additional special ones (e.g., prohibitions on incurring new credit charges and an obligation for Lamborn to obtain a GED). That discrepancy required vacatur and remand for corrected sentencing.

B. The Court’s Legal Reasoning

1. Denial of Continuance: Balancing Preparedness, Complexity, and Witness Safety

The court’s reasoning on the denied continuance is instructive for complex, multi‑defendant cases:

Timeliness and prior continuances: The trial had already been continued multiple times over ~two years, largely due to COVID‑related restrictions and voluminous discovery. By April 2022, defense counsel had had roughly a year with “the vast majority of the evidence.” A new motion four days before trial, absent a concrete demonstration of prejudice, did not compel yet another postponement.
Narrow relevance of new materials: The late‑produced discovery was largely not related to the core overt acts alleged in the indictment; moreover, the government and a coordinating discovery attorney had committed to reorganizing and making it more accessible. The court accepted the district judge’s assessment that, in context, this new material did not require an additional continuance.
Witness safety concerns: By the time of the motion, the government had disclosed Jencks material and cooperating witnesses’ identities. Given that the charged enterprise involved killing a cooperating witness (White) for “snitching,” the district court reasonably concluded that further delay increased the risk of intimidation or harm. This concrete safety concern was a legitimate counterweight to the defense’s generalized need for more preparation time.
Lack of specific prejudice: On appeal, defendants could not identify a single tangible example of prejudice (e.g., a particular document they failed to review that would have changed strategy or outcome). The alleged surprise over a forensic anthropology expert was undermined by prior disclosures that such an expert would testify, and cross‑examination at trial was robust. Under LaRouche and Williams, this failure to specify prejudice doomed the claim.

The opinion thus reinforces that in complex gang/murder cases, especially where continuances have already been liberally granted, courts may—and often should—consider both case‑management and witness‑safety concerns when sitting in judgment on last‑minute requests for more time.

2. Denial of Substitution of Counsel: Applying the Smith Factors

On the substitution issue, the panel meticulously applied the three Smith factors:

Timeliness: A motion filed four business days before trial in a large multi‑defendant conspiracy was plainly late. The judge reasonably doubted that new counsel could prepare adequately or that delaying the trial further was warranted. Earlier complaints from Lamborn (relayed by his sister months before) had not been formalized, and once counsel stepped up their visits, Lamborn did not renew his request until the eve of trial—supporting a finding that he had acquiesced to continuing with existing counsel.
Adequacy of inquiry: The court credited the district judge with conducting a “lengthy hearing,” fully airing Lamborn’s concerns about limited discovery access and infrequent visits. The judge examined counsel’s time records, the impact of COVID restrictions, and the scope of protective orders. This satisfied the requirement for an adequate inquiry.
Extent of breakdown in communication: While the relationship was strained and could have been better, Lamborn conceded that he was still able to discuss his case, alibi witnesses, and defense theories with counsel. There was no evidence of a complete collapse in communication or the total absence of trial preparation that characterized cases like Mullen. Counsel’s performance at trial—until Lamborn elected to proceed pro se near the end—was not alleged to be deficient.

The panel further held that even if it assumed an abuse of discretion, any error was harmless: the record demonstrated that counsel “provided an adequate defense” within the meaning of Horton. The later disruption (threat of physical altercation and Lamborn’s pro se closing) did not retroactively establish that counsel’s performance up to that point was constitutionally or practically inadequate.

3. Sufficiency of the Evidence: Circumstantial Proof and Aiding & Abetting

The court’s sufficiency analysis underscores the power of circumstantial evidence and cooperating‑witness testimony in gang cases:

Kidnapping conspiracy and kidnapping resulting in death: Testimony from Abdulkadir and Aagesen established:
- An agreement to lure White for the purpose of retaliation.
- Peter’s active role in arranging transportation and promising debt forgiveness.
- Yoo’s and Peter’s planning conversation about “setting up” White so he would “get fucked up.”
- Peter’s physical participation (wearing latex gloves, forcing White into the car).
- Yoo’s coordination by phone en route to Richmond.
This was enough to show not only presence but knowing, voluntary participation in a plan to abduct White, transport him interstate, and hold him in the woods, satisfying both conspiracy and substantive kidnapping elements.
Murder in aid of racketeering (VICAR) and killing while engaged in drug trafficking:
- The gang was a qualifying “enterprise” engaged in racketeering (drug trafficking and related violence).
- White was targeted specifically because he owed Yoo a drug debt and had testified against Nguyen—providing both pecuniary and “maintaining/increasing position” motives.
- Evidence that Yoo brought a gun; that Peter and Lamborn led White into the woods; that Yoo followed; that Lamborn warned he would shoot but Yoo and Peter stayed; that shots were fired; and that Yoo later disposed of a gun and knife he said he used—collectively supported aiding‑and‑abetting liability.
- The same facts established the “meaningful nexus” between the killing and the gang’s drug conspiracy required by § 848(e)(1)(A) and explained in Hager.

The panel reiterated that inconsistencies in witnesses’ accounts (e.g., Pak versus others on the role of the knife) are matters for the jury. Even uncorroborated testimony of a single cooperating witness can sustain a conviction if believed. The court refused to second‑guess those credibility determinations.

4. Speedy Trial Act: Ends‑of‑Justice Continuances and the New Motion‑Cutoff Rule

The Speedy Trial Act portion of the opinion has two key components:

a. Application of Ends‑of‑Justice and Co‑Defendant Exclusions

First, the panel held that all delays before Tony’s Speedy Trial Act motion were properly excluded:

Ends‑of‑justice continuances (§ 3161(h)(7)(A)): The district court repeatedly cited, on the record, the case’s complexity (multiple defendants, multiple counts, extensive time span, voluminous discovery), codefendants’ need for additional preparation time, and the practical impact of COVID‑19 on counsel’s ability to meet clients and review evidence. These are precisely the considerations identified in the statute and in Pair and Velasquez as valid grounds.
No “magic words” requirement: While the district court did not recite the phrase “ends of justice,” it articulated the balancing of the public’s and defendants’ interests in a speedy trial against the need for adequate preparation and health‑related constraints at each continuance. Under Hart and Pair, that suffices.
Co‑defendant delay (§ 3161(h)(6)): The court further held that the delay triggered by co‑defendants’ preparations was a “reasonable period” given the complexity and multi‑defendant nature of the case. Tony’s belated objection and his failure to show particularized prejudice weighed against finding unreasonableness under Robinson and Sarno.

b. Adoption of the Motion‑Cutoff Rule

The novel piece of the Act analysis is the Fourth Circuit’s express adoption of the “motion‑cutoff” rule:

“Following our sister circuits’ approach, we conclude that delays that postdate the filing of a motion to dismiss under the Speedy Trial Act don’t matter.”

This means:

When a defendant files a motion to dismiss for violation of the Speedy Trial Act, the court measures elapsed non‑excludable time only up to the filing date of the motion.
Whether the government or court adds further delay after the motion is filed does not affect the resolution of that motion.

By citing Connor (1st Cir.), Wirsing (9th Cir.), Mayes (10th Cir.), Sherer (6th Cir.), Mathis (11th Cir.), and Weidenburner (7th Cir.), the Fourth Circuit aligns with a broad consensus: the motion serves as the cut‑off for the relevant Speedy Trial Act calculation.

Practically, this has several implications:

Defense counsel must be strategic in when they file Speedy Trial Act motions; waiting too long may waive arguments regarding earlier delay but filing too early may cut off future “accrual” of non‑excludable time.
If additional delay after the motion arguably violates the Act, counsel would need to file a second motion to reach that later period.

5. Sixth Amendment Speedy Trial: Barker Analysis without a District Court Ruling

Because the district court did not expressly rule on Tony’s Sixth Amendment claim, the panel essentially performed a de novo Barker analysis:

Length of delay: Eighteen months (for drug conspiracy) and eight months (for racketeering conspiracy) from accusation to trial were “presumptively prejudicial” under Doggett and Burgess, thus triggering Barker. This factor favored Tony.
Reason for delay: The same reasons that justified ends‑of‑justice continuances—complexity and COVID‑related constraints—are “valid” reasons under Barker and hence weigh for the government, particularly as there was no showing of government bad faith or negligence.
Assertion of the right: Tony did assert his speedy trial right and sought severance, but he did so after participating in or not objecting to prior continuances, and he did not persistently press the issue. This partial, inconsistent assertion weighed against him, following Barker and Pair.
Prejudice: Tony’s claimed prejudice—difficulty meeting counsel while detained during COVID, and generalized worries about witness memory—was indistinguishable from ordinary hardships of pretrial detention and pandemic limitations. Without identifying specific lost witnesses or evidence, or showing that his defense was concretely impaired, he did not meet the prejudice threshold under Robinson and Hall. This factor therefore favored the government.

With three Barker factors favoring the government and one favoring the defense, the court found no Sixth Amendment violation, and emphasized (via Pair) that it is rare to find a constitutional speedy trial violation where the Speedy Trial Act has been satisfied.

6. Sentencing: Acquitted Conduct, Firearms, Leadership, and Disparity

a. Acquitted Conduct and the Non‑Retroactivity of § 1B1.3(c)

Tony’s most ambitious sentencing argument centered on the new Guideline, § 1B1.3(c), which now generally bars judges from relying on acquitted conduct to determine the offense level. Tony argued that, in light of this new policy choice, his sentence—based on a 15 kg cocaine quantity and violent conduct underlying acquitted destructive‑device counts—should be vacated as inconsistent with current law.

The Fourth Circuit refused to disturb his sentence because:

At the time of sentencing, Medley permitted consideration of acquitted and uncharged conduct by a preponderance of the evidence.
Under Goines, only clarifying Guideline amendments apply retroactively on direct appeal. The panel, like the Eleventh Circuit in Shanks, held that the acquitted‑conduct amendment is substantive, because it changed operative law in multiple circuits (including the Fourth) by reducing sentencing exposure and prohibiting a previously lawful practice.
Therefore, § 1B1.3(c) is not retroactive, and the sentencing judge did not err in relying on acquitted conduct.
Moreover, any error in the cocaine quantity attribution was harmless: marijuana quantity alone placed Tony at the same base offense level (32) under § 2D1.1(c).

This holding is important: defendants sentenced before the effective date of the acquitted‑conduct amendment cannot obtain relief on direct appeal solely on the basis that the Guidelines subsequently changed. Relief, if any, would have to come through later statutory reform, resentencing pathways created by Congress, or (depending on future law) retroactive Commission action.

b. Firearm Enhancement (§ 2D1.1(b)(1))

The court upheld the two‑level enhancement for firearm possession because:

Witnesses testified that Tony kept firearms at his residence where the gang received and stored marijuana shipments.
Under Mondragon and Bolton, that temporal and spatial link between the gun, the defendant, and drug activity suffices to show that the weapon was possessed “in connection with” the offense.
Tony did not show it was “clearly improbable” the gun was connected to the drug trafficking; thus, the presumption in the Application Note applied.

The case reaffirms how easy it can be for the government to meet the § 2D1.1(b)(1) standard when guns are found at locations integral to the drug conspiracy.

c. Leadership Enhancement (§ 3B1.1(a))

Turning to the four‑level organizer/leader enhancement, the court emphasized:

Evidence that Tony was an early member, was centrally involved in marijuana production and distribution, founded the Tiger Side subset, recruited younger members, and was treated as the shot‑caller in drug operations.
Testimony that other participants “took their orders” from Tony regarding distribution and collection, and that he coordinated financial flows from drug sales.

Given the factors listed in the § 3B1.1(a) commentary (decision‑making authority, recruitment, claimed benefit, organizational role, control over others), the panel found no clear error. The case illustrates standard application of the leadership enhancement in gang‑drug conspiracies where one figure is consistently identified as the director of operations.

d. Sentencing Disparity Among Co‑Defendants (§ 3553(a)(6))

Tony’s argument that his co‑defendants received lesser terms for similar conduct was undercut by Lawson, which refocuses § 3553(a)(6) on:

National uniformity in sentencing for similar offenses and offender characteristics, rather than
Exact parity within a single case among co‑defendants who may differ in roles, criminal history, or cooperation.

The court noted that Tony presented no evidence that his 312‑month sentence was out of step with nationwide outcomes for similarly situated leaders of large‑scale drug conspiracies. The district court, for its part, squarely addressed the disparity argument and explained that Tony’s central leadership role justified a higher sentence. Under Bollinger, that explanation sufficed.

7. Supervised Release Conditions: Reaffirming Rogers and Mathis

The panel’s treatment of supervised release is straightforward but practically significant. The district court:

At each defendant’s sentencing, orally mentioned only a few specific “special conditions” of supervised release.
But the written judgment later imported:
- All “standard” non‑mandatory conditions in the Guidelines, and
- Additional special conditions not mentioned at the hearing (e.g., credit restrictions, educational requirements).

Under Rogers and Mathis:

Non‑mandatory conditions must be “announced” in some way—either enumerated orally or explicitly incorporated by reference to a written list (e.g., “all standard conditions of supervised release as set forth in the Guidelines”).
Written judgments cannot silently expand the conditions beyond what was pronounced in the defendant’s presence.

The panel therefore vacated the sentences of Lamborn, Yoo, and Peter and remanded solely for resentencing to correct the supervised release portions. This ensures defendants know the terms of supervised release at the time of sentencing and preserves the right to be present when sentence is pronounced, as required by Rule 43(a)(3).

C. Impact on Future Cases and the Relevant Areas of Law

1. Speedy Trial Act Litigation Post–United States v. Lamborn

The opinion’s adoption of the motion‑cutoff rule and robust endorsement of pandemic‑era ends‑of‑justice continuances will shape future Speedy Trial Act defense strategy:

Motion timing becomes critical: Defense counsel must understand that once they file a motion to dismiss on Speedy Trial Act grounds, the “clock” for that motion stops. If further non‑excludable delay occurs thereafter, a new motion must be filed.
COVID‑related and complexity‑based delays are likely to be upheld: Where district courts created a contemporaneous record of needing more time for complex, multi‑defendant cases, especially during COVID, this opinion—together with Pair and Hall—provides strong appellate support for finding those continuances proper under § 3161(h)(7)(A).
Co‑defendant delay remains broadly excludable: Unless defendants diligently and repeatedly seek severance and show particularized prejudice, Carey and Robinson, as reinforced here, make it difficult to attack “reasonable” co‑defendant delays.

2. Sixth Amendment Speedy Trial Claims After COVID‑Era Delays

The case fits into—and strengthens—a pattern of appellate decisions holding that COVID‑driven delays, in complex multi‑defendant prosecutions, generally do not violate the Sixth Amendment where:

The reasons for delay are legitimate and documented (public health, complexity, need for preparation).
Defendants did not consistently and firmly insist upon a speedy trial at every stage.
Defendants cannot identify specific, concrete prejudice (lost witnesses, destroyed evidence), beyond the generic hardships of pandemic‑era detention.

This places a premium on defense counsel diligently building a factual record of actual prejudice (e.g., a witness who died or moved abroad, evidence that degraded) if they intend to raise Sixth Amendment claims in similar contexts.

3. Sentencing: Limits on Retroactive Use of the Acquitted‑Conduct Amendment

By deeming the acquitted‑conduct amendment to § 1B1.3(c) “substantive” and thus non‑retroactive on direct appeal, the Fourth Circuit:

Forecloses direct‑appeal relief for defendants sentenced before the amendment based solely on the change in Guidelines policy.
Signals that any retroactive benefit from the amendment would need to come from:
- A specific retroactivity determination by the Sentencing Commission,
- Congressional intervention, or
- Other legal mechanisms (such as compassionate release or statutory resentencing provisions) if they are later enacted or expanded.
Aligns with other circuits (e.g., Eleventh Circuit in Shanks) and prevents a wave of direct appeals seeking resentencing solely on policy grounds.

4. Enhancements and Leadership Findings in Gang Conspiracies

The affirmance of Tony’s firearm and leadership enhancements will be widely cited in future gang and conspiracy prosecutions:

Firearm enhancements: When a weapon is located where conspirators receive, store, or distribute drugs, courts are likely to find an adequate nexus. Defense arguments will need to focus on showing it is “clearly improbable” that the firearm was part of the drug activity (e.g., antique collections, hunting in a different location).
Leadership enhancements: Evidence that a defendant founded a clique, recruited others, directed drug distribution, and controlled proceeds is enough to support a 4‑level organizer/leader enhancement. Defense counsel should vigorously challenge the credibility and specificity of such testimony if they hope to avoid the enhancement.

5. Supervised Release Conditions: Continued Strict Enforcement of Rogers

The remand on supervised release underscores that the Fourth Circuit is serious about enforcing Rogers:

District judges must either enumerate all non‑mandatory conditions of supervised release at sentencing or explicitly incorporate them by reference.
Probation offices and prosecutors must ensure that written judgments faithfully reflect what was actually pronounced.
Defense counsel should vigilantly compare oral pronouncements with written judgments and be prepared to seek correction on appeal or via Rule 36 motions if discrepancies exist.

Even in life‑sentence cases, the court’s insistence on correcting supervised release conditions reflects a view that sentences must be formally lawful and internally consistent, regardless of likelihood of eventual release.

IV. Complex Concepts Simplified

1. The Speedy Trial Act vs. the Sixth Amendment

Speedy Trial Act (statutory): A federal statute that generally requires trial within 70 days of indictment or first appearance, unless specific types of delay are excluded (e.g., pretrial motions, ends‑of‑justice continuances, co‑defendant delay).
Sixth Amendment (constitutional): Independently guarantees a “speedy and public trial.” Even if the Act’s technical requirements are met, delay can still (in theory) violate the Constitution under the four‑factor Barker test.
Key takeaway: The Act is more mechanical and clock‑based; the Sixth Amendment is more flexible, weighing length, reasons, assertion of the right, and prejudice.

2. Ends‑of‑Justice Continuances

An “ends‑of‑justice continuance” is when a judge pauses the 70‑day Speedy Trial clock because delaying trial better serves justice than forcing it forward. For example:

The case is unusually complex (many defendants, counts, or evidence).
Counsel needs more time to prepare effectively.
Serious public health or safety concerns (e.g., COVID‑19) interfere with a fair, safe trial.

The judge must explain on the record why delaying the trial serves the “ends of justice” more than pushing it forward quickly.

3. Co‑Defendant Delay under the Speedy Trial Act

When multiple defendants are joined for trial:

A delay that is valid (or excludable) for one defendant usually applies to all under § 3161(h)(6).
Delay must still be “reasonable,” assessed by the length of delay, efforts to sever, and prejudice.
This rule recognizes the efficiency and fairness of joint trials in conspiracies and major gang cases.

4. Acquitted Conduct at Sentencing

“Acquitted conduct” means conduct a jury expressly found the defendant not guilty of. Historically:

Federal judges could still consider such conduct at sentencing under a lower standard (preponderance of the evidence), as long as the sentence did not exceed the statutory maximum for the counts of conviction.
This practice was controversial but lawful in the Fourth Circuit before the new Guideline.

The newer U.S.S.G. § 1B1.3(c) now generally forbids counting acquitted conduct in determining the guideline range, but this decision holds that change does not reach backward to sentences imposed before the amendment.

5. Murder in Aid of Racketeering (VICAR)

To prove murder in aid of racketeering under 18 U.S.C. § 1959, the government must show:

An “enterprise” engaged in racketeering (e.g., a gang that trafficks drugs and commits violent crimes).
The defendant committed murder (directly or as an aider/abettor).
The murder was done to gain entrance to, maintain, or increase status in the enterprise, or for pecuniary gain in connection with it.

Here, White’s murder was tied to his drug debt and his cooperation with law enforcement against the gang, satisfying the VICAR motive element.

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

This statute punishes intentionally killing (or causing the killing of) someone while:

Engaging in, or working in furtherance of, a continuing criminal drug enterprise or large drug conspiracy.
There must be a “meaningful” connection between the murder and the drug activity, not just coincidence in time.

Targeting someone because of a drug debt or to protect the drug operation’s secrecy (by eliminating a witness) usually meets this requirement.

7. Supervised Release Conditions: Mandatory vs. Non‑Mandatory

Mandatory conditions: Required by statute (e.g., not committing another crime, DNA collection). Judges must impose them, so they need not be individually justified under the Guidelines, though they are typically mentioned.
Non‑mandatory conditions (standard and special):
- “Standard” conditions recommended in the Guidelines (e.g., reporting to probation, maintaining employment, travel approval).
- “Special” conditions tailored to the case (e.g., drug treatment, no internet access, financial restrictions, education requirements).

Under Rogers, a judge must announce all non‑mandatory conditions (or clearly incorporate them by reference) at the sentencing hearing. The written judgment cannot silently add extra conditions after the fact.

V. Conclusion

This Fourth Circuit decision in United States v. Lamborn (involving Tony Le and other Reccless Tigers members) offers a comprehensive and authoritative roadmap for handling complex, multi‑defendant gang prosecutions in the post‑COVID era.

Key takeaways include:

Speedy Trial Act: The court formally adopts the motion‑cutoff rule—only pre‑motion time counts for a particular Speedy Trial Act motion—and strongly endorses ends‑of‑justice continuances and co‑defendant exclusions in complex, pandemic‑affected cases.
Sixth Amendment: Even substantial delays will not yield a constitutional violation absent illegitimate reasons, consistent assertion of the right, and concrete prejudice to the defense.
Sentencing: The decision confirms that the new acquitted‑conduct Guideline is a substantive, non‑retroactive change; pre‑amendment sentences that relied on acquitted conduct remain valid absent some independent error. Firearm and leadership enhancements remain broadly applicable in gang‑drug cases, and § 3553(a)(6) rarely compels co‑defendant parity.
Supervised release: The court reinforces that non‑mandatory conditions must be pronounced at sentencing or clearly incorporated; any inconsistency between oral pronouncement and written judgment requires correction on remand.

Although the defendants here failed in almost all of their challenges, the opinion crystallizes several important principles that will guide litigants and judges in future federal criminal proceedings, particularly those involving superseding indictments, multi‑defendant conspiracies, and the evolving landscape of sentencing law.