USCA4 Appeal: 20-4514 Doc: 75 Filed: 10/25/2022 Pg: 1 of 17

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 20-4514

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

ENIL RAMON MONTOYA VELASQUEZ,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Dever III, District Judge. (7:18-cr-00144-D-1)

Argued: September 16, 2022 Decided: October 25, 2022

Before AGEE and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Reversed, vacated in part, and remanded by published opinion. Judge Agee wrote the opinion in which Judge Harris and Senior Judge Motz joined.

ARGUED: Anne Margaret Hayes, Cary, North Carolina, for Appellant. William Connor Winn, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Acting Deputy Assistant Attorney General, Criminal Division, Appellate Section, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Norman Acker, III, Acting United States Attorney, David A. Bragdon, Assistant United States Attorney, Chief, Appellate Division, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. USCA4 Appeal: 20-4514 Doc: 75 Filed: 10/25/2022 Pg: 2 of 17

AGEE, Circuit Judge:

Enil Ramon Montoya Velasquez appeals his convictions for two drug-related

offenses, asserting that his jury trial on those charges did not occur within the timeframe

established by the Speedy Trial Act. See

(c)(1), 3162(a)(2). He also

challenges his sentence, arguing that the district court procedurally erred in calculating the

drug weight attributable to him and by not orally announcing during sentencing the

discretionary conditions of supervised release imposed upon him in the written judgment.

As explained below, we agree with Velasquez that the record does not show that the

district court complied with the Act’s procedural requirements for granting an ends-of-

justice continuance for the period between July 22, 2019, and November 7, 2019. See

(h)(7). Because that 108-day period exceeds the Speedy Trial Act’s 70-day

timeframe within which his trial had to occur, we reverse the district court’s order denying

Velasquez’ motion to dismiss these two counts and vacate those convictions. As we also

explain, vacating the convictions requires vacating Velasquez’ entire sentence, which in

turn moots his two sentencing challenges. Accordingly, we remand to the district court for

further proceedings consistent with this opinion.

I.

A.

We pause to first provide some background on the Speedy Trial Act, as that context

helps to understand the posture in which Velazquez’ appeal arises.

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The Speedy Trial Act requires that a criminal defendant’s trial “commence within

seventy days from the filing date . . . of the . . . indictment, or from the date the defendant

has appeared before a judicial officer of the court in which such charge is pending,

whichever date last occurs.”

(c)(1). If this 70-day period elapses and the

defendant moves to dismiss the charges on Speedy Trial grounds before trial, then the

charges “shall be dismissed.”

§ 3162(a)(2); United States v. Mosteller,

(4th Cir. 2014). While dismissal is mandatory, the district court retains discretion to

dismiss the charges with or without prejudice. § 3162(a)(2); Mosteller,

.

Congress recognized, however, in enacting the Speedy Trial Act “that criminal cases

vary widely and that there are valid reasons for greater delay in particular cases.” Zedner

v. United States,

(2006). “To provide the necessary flexibility, the

[Speedy Trial] Act includes a long and detailed list of periods of delay that are excluded in

computing the time within which trial must start.”

(citing § 3161(h)). Relevant here is

§ 3161(h)(7), usually called the “ends-of-justice” exclusion. Under this provision, if the

district court finds “that the ends of justice served by the granting of [a] continuance

outweigh the best interests of the public and the defendant in a speedy trial,” it can exclude

that period from the Speedy Trial computation. § 3161(h)(7)(A). This exception may be

invoked “by any judge on his own motion” or by any of the parties. Id.

B.

A federal grand jury returned a five-count indictment against Velasquez on August

28, 2018, and his initial appearance occurred one month later. But Velasquez’ arraignment

was postponed seven times between October 2018 and July 2019. Five of those

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postponements related to discovery issues and the need for defense counsel to consult

Velasquez after addressing those issues. The final two were sought in May and June 2019

because Velasquez’ counsel was having medical issues. Velasquez appeared for his

arraignment on July 22, 2019, at which time he pleaded guilty to three counts (Counts Two,

Three, and Five), and not guilty to two counts (Counts One and Four).

After concluding the arraignment, the district court asked the parties if they had

“talked about trial dates.” J.A. 96. The Government represented that it had spoken with

Velasquez’ counsel on this matter and asked the court if the parties could “reach out to [the

case manager] after court today with a final time frame?” Id. at 96–97. The Government

further informed the court that it was “looking like probably December is the earliest” time

they could schedule trial. Id. at 97. The district court responded, “All right. December is

filling up so I look forward to hearing from you on proposed dates.” Id. The court then

concluded the hearing, noting to Velasquez that he would “continue to have access to

consult with [his attorney] as [Velasquez] prepare[d] for trial.” Id. After the arraignment,

the court entered a minute order with the following note: “counsel to contact the case

manager regarding proposed trial dates. Trial to be set by order at a later date – speedy trial

computation excluded by the court.” Id. at 8. The court did not specify how long this

continuance would last or a particular reason for the Speedy Trial delay. See id.

About two weeks later, on August 2, the case manager contacted the parties via

email because she had not yet received proposed trial dates. Her email included periods of

time that the presiding judge would be in trial and instructed the parties not to pick dates

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within those time frames. The court’s schedule reflected availability for a four-day trial in

September, November, and December 2019, and in January 2020.

By October 7, the case manager still did not have specific trial date availability from

Velasquez’ counsel. She emailed Velasquez’ counsel recounting the Government’s and the

court’s availability, and requesting “3 specific dates” that worked as a trial date. Gov’t

Supp. J.A. 43 (emphasis omitted). The case manager only provided dates in January,

February, and March 2020. Velasquez’ counsel responded that she was available for trial

“February 24–28, 2020 and any date in March 2020.” Id. at 45.

About one month later, on November 7, 2019, the district court issued an order

scheduling trial for February 25, 2020. The court found “that the ends of justice served by

granting this extension outweigh the best interests of the public and the defendant in a

speedy trial,” and thus “excluded” “[t]he period of delay necessitated by this extension”

under “18 U.S.C. § 3161(h).” J.A. 99. Three weeks before trial, however, Velasquez’

counsel moved to withdraw based on a conflict of interest. The district court granted that

motion and, as a result, continued trial to May 27, 2020.

Before trial, Velasquez, through his new counsel, moved to dismiss Counts One and

Four under the Speedy Trial Act. He argued that two continuances granted by the district

court were not properly excludable from the Speedy Trial computation: (1) the 108-day

period between July 22, 2019, and November 7, 2019; and (2) the 110-day period between

November 7, 2019, and February 25, 2020. He noted that either period was sufficient to

mandate dismissal of Counts One and Four. See

(c)(1), 3162(a)(2).

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The district court denied Velasquez’ motion to dismiss on the record during a

hearing on May 20, 2020. At first, it explained that it granted the Speedy Trial continuance

on July 22, 2019, under the ends-of-justice exception “for trial preparation.” J.A. 164–65.

After this initial explanation, Velasquez’ counsel reiterated his concerns with the July 22

continuance: “[i]t’s not clear to me that there was any motion on behalf of the defendant

directly or through counsel or the Government for that delay.”

. The district court

responded: “[I]n order to provide defense counsel sufficient time to prepare for trial, the

Court extended that time under the Act under

, subparagraph

(h)(7)(A).”

. As for the November 7 continuance, the court remarked only that it

“excluded the time under the Speedy Trial Act.”

.

Velasquez’ case proceeded to trial, after which a jury found him guilty of both

Counts One and Four. The district court sentenced him to 264 months’ imprisonment on

those two counts, and 240 concurrent months on Counts Two, Three, and Five.

Velasquez timely noted an appeal. We have jurisdiction under

(a)

and

.

II.

On appeal, Velasquez reasserts the same Speedy Trial challenges he made in the

district court. “We review de novo the district court’s interpretation of the Speedy Trial

Act,” United States v. Rodriguez-Amaya,

(4th Cir. 2008) (cleaned up),

and “[w]hether the district court properly excluded” a given period under the Act, United

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States v. Jarrell,

(4th Cir. 1998). We review the district court’s factual

findings for clear error. Rodriguez-Amaya,

.

The Speedy Trial Act’s ends-of-justice exception imposes upon district courts

procedural and substantive requirements. Our analysis begins and ends with the relevant

procedural requirements.

The Act requires the district court to “set[] forth, in the record of the case, either

orally or in writing, its reasons for finding” that an ends-of-justice continuance is proper.

§ 3161(h)(7)(A). The Supreme Court has interpreted this provision to require that “the

findings must be made, if only in the judge’s mind, before granting the continuance.”

Zedner,

; see also United States v. Keith,

(4th Cir. 1994)

(“[T]he district court may not grant an ends of justice continuance nunc pro tunc.”).

While it is “[t]he best practice . . . for a district court to put its findings on the record

at or near the time when it grants the continuance,” it need not do so. Zedner,

& n.7. Instead, “at the very least the Act implies that those findings must be put on the

record by the time a district court rules on a defendant’s motion to dismiss.”

.

Even still, “it must be ‘clear from the record that the court conducted the mandatory

balancing contemporaneously with the granting of the continuance.’” United States v.

Henry,

(4th Cir. 2008) (quoting Keith,

). A district court’s

failure to comply with ends-of-justice exclusion’s procedural requirements is per se

harmful error. Zedner, 547 U.S. at 507–09. Thus, if a violation occurred, “the delay must

be counted” in the defendant’s Speedy Trial computation, Henry,

.

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Velasquez asserts that the district court procedurally erred in granting the July 22,

2019, continuance because the record does not show that the court contemporaneously

balanced the ends-of-justice factors when it entered its minute order. The Government

counters that no such error occurred and that, even if it did, Velasquez should be estopped

from making this Speedy Trial challenge.

As explained below, we agree that the district court committed legal error by failing

to show that it balanced the ends-of-justice factors contemporaneous with its July 22

minute order, and also find Velasquez is not estopped from pursuing that claim. 1

A.

We begin with Velasquez’ threshold claim that the district court procedurally erred

in granting the July 22, 2019, ends-of-justice continuance. While he recognizes that the

court explained at the motion-to-dismiss hearing that it granted the continuance so his

attorney could have time to prepare for trial, Velasquez contends that the transcript from

his July 22 arraignment does not reflect that his counsel needed more trial preparation time.

He contends that, at most, the court showed only that it was concerned with its congested

trial calendar––but that, he argues, is an impermissible ends-of-justice consideration.

The Government counters that we may infer from the record as a whole that the

district court believed that Velasquez’ counsel needed more trial preparation time when it

entered the July 22 minute order. It points out that in the two months before the

arraignment, Velasquez’ counsel requested continuances under the ends-of-justice

1 Given these holdings, we need not address Velasquez’ separate contention that the district court’s November 7 ends-of-justice continuance violated the Speedy Trial Act. 8 USCA4 Appeal: 20-4514 Doc: 75 Filed: 10/25/2022 Pg: 9 of 17

exclusion due to health issues she was experiencing. So when the Government jointly

represented during the arraignment hearing that it was “looking like probably December is

the earliest” time a trial could occur, J.A. 97, the Government posits that was the parties’

unstated but implicit representation that Velasquez’ counsel needed more time to prepare

for trial. The Government argues that the district court showed it had that rationale on its

mind when, at the end of the hearing, it told Velasquez that he would “continue to have

access to consult with [his attorney] as [Velasquez] prepare[d] for trial.”

The Government’s reading of the record is far too strained. While the need for

effective trial preparation is substantively a valid reason for granting an ends-of-justice

continuance, see

(h)(7)(B)(iv), the record does not show that on July 22

the district court believed either party needed more trial preparation time.

Our decision in Henry is on all fours with this case. There the district court granted

an ends-of-justice continuance during a status conference without a contemporaneous

explanation, but it later stated at the motion-to-dismiss hearing that it granted the

continuance to give the parties additional trial preparation time.

. We held

that the district court procedurally erred in granting this continuance because the record

from the earlier status conference showed that “neither the parties nor the court indicated

that there was a need to delay the trial date to allow for effective preparation.”

.

Instead, the discussion between the court and the parties showed that the court “was

concerned with finding a date that would conveniently fit into the schedules of counsel for

both sides and the court, not with evaluating the ends-of-justice factors.”

Accordingly,

we determined that the district court failed to “engage in the contemporaneous ends-of-

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justice analysis required by Zedner” when it granted the continuance during the status

conference.

.

So too here. The district court only asked the parties if they had “talked about trial

dates.” J.A. 96. The Government’s response––that it was “looking like probably December

is the earliest,”

at 97––was vague and ambiguous as to why they were looking at that

month. The Government offered, and the district court requested, no clarification as to

whether December was “the earliest” point for trial because Velasquez or his counsel

needed more time to prepare for trial, because that was the most convenient time for

counsels’ respective schedules, or for some other reason.

Similar to Henry, “[a]t no

point during the [hearing] did the court mention a concern about giving the parties

additional time to prepare for trial or mention other ends-of-justice factors.”

. In fact, neither the district court nor the parties ever mentioned the Speedy Trial Act

or the ends-of-justice exclusion. We therefore cannot find, from the hearing transcript

alone, that the district court had the ends-of-justice factors on its mind when it entered its

July 22 minute order.

The district court had the opportunity to offer more clarity at the motion-to-dismiss

hearing, but it gave none. The court stated in a conclusory manner that it granted the July

22 ends-of-justice continuance “to provide defense counsel sufficient time to prepare for

trial.” J.A. 178. But again, similar to Henry, the record does not support that the district

court had that concern on its mind contemporaneous with its July 22 minute order because

Velasquez’ counsel never requested more time for trial preparation during that proceeding.

See

.

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Nor can we, as the Government suggests, infer that Velasquez’ counsel needed more

trial preparation time solely from the fact that his counsel requested two prior ends-of-

justice continuances in May and June 2019. The record shows that counsel requested those

continuances to recover from a recent broken foot that precluded her from driving so that

she would have time to confer with Velasquez about his upcoming arraignment. See J.A.

58 (May 2019 request) (“[D]efense counsel is requesting that this case be continued for

thirty (30) days to allow her time to recover from her injury and meet with her client to

prepare for arraignment.”); id. at 63 (June 2019 request) (providing the same rationale). To

accept the Government’s argument would require us to simply speculate as to a post hoc

justification for the district court’s July 22 minute order. But the Speedy Trial Act expressly

precludes us from doing so. See Keith,

; see also Zedner,

(“[W]ithout on-the-record findings, there can be no [ends-of-justice] exclusion[.]”).

For these reasons, we conclude that the district court committed legal error in failing

to comply with the Speedy Trial Act’s procedural requirements for granting an ends-of-

justice continuance because it is not “clear from the record that the court conducted the

mandatory balancing contemporaneously with the granting of the continuance.” Henry,

508 F.3d at 304 (citation omitted). 2

B.

The Government contends that, even if the district court committed legal error,

Velasquez should be estopped from raising such a challenge. It relies on our decision in

2 We therefore need not and do not address Velasquez’ alternative contention that the district court legally erred by granting an “open-ended” ends-of-justice continuance. 11 USCA4 Appeal: 20-4514 Doc: 75 Filed: 10/25/2022 Pg: 12 of 17

Keith, which held that if “the reasons underlying the district court’s granting of the

continuance, as agreed to by the defendant, set forth a sufficient factual basis which would

support an ends of justice finding under the Act,” then the defendant would be barred from

challenging the reasons for that continuance on appeal.

(emphasis omitted).

The Government asserts that since Velasquez’ counsel consented to the Government’s

representations during the July 22 arraignment that December was “the earliest” time trial

could be held, J.A. 97, Keith precludes his instant Speedy Trial claim. We disagree.

Preliminarily, the parties recognized during oral argument that there may be some

tension between the estoppel rule we established in Keith and the Supreme Court’s later

application of the equitable doctrine of judicial estoppel in Zedner. 3 Unlike the single-

factor test we established in Keith, in applying the equitable doctrine of judicial estoppel,

Zedner looked to “several factors” to determine if estoppel is appropriate, including: (1)

the inconsistency between the defendant’s position before the district court and on appeal;

(2) “whether the party has succeeded in persuading a court to accept that party’s earlier

position”; and (3) “whether the party seeking to assert an inconsistent position would derive

an unfair advantage or impose an unfair detriment on the opposing party if not estopped.”

(quoting New Hampshire v. Maine,

, 750–71 (2001)); see

New Hampshire,

(noting that these three factors are not “inflexible

3 We note that, like us, our sister circuits have recognized that Zedner’s judicial estoppel formulation applies to Speedy Trial Act claims in subsequent cases. See, e.g., United States v. Pakala,

, 59–60 (1st Cir. 2009); United States v. Alvarez-Perez,

(9th Cir. 2010). 12 USCA4 Appeal: 20-4514 Doc: 75 Filed: 10/25/2022 Pg: 13 of 17

prerequisites or an exhaustive formula” and “[a]dditional considerations may inform the

doctrine’s application in specific factual contexts”).

Keith’s estoppel formulation is no longer binding where it is inconsistent with the

estoppel test applied by the Supreme Court in Zedner. We see at least two material respects

in which that inconsistency can arise. See United States v. Banks,

(4th

Cir. 2022) (explaining that we are not bound by prior panel decisions that “subsequently

prove[] untenable,” and that a decision “is untenable if its reasoning or holding is

inconsistent with a Supreme Court decision”). First, Zedner applied a judicial estoppel test

that permits courts to consider a host of factors that may or may not be relevant depending

on the context of a given case. By contrast, Keith set forth a single-factor, all-or-nothing

test that does not allow for the same equitable considerations as Zedner’s formulation.

Second, one of the estoppel factors cited in Zedner conflicts with Keith’s single-

factor estoppel test. Zedner held that a district court may consider in its estoppel analysis

whether a defendant persuaded the district court to find that a given reason justified an

ends-of-justice continuance.

. Put another way, estoppel can apply under

Zedner if the defendant tells the district court that an ends-of-justice continuance is

warranted when in fact such a continuance would ordinarily be precluded. Keith’s

prescribed analysis, however, is more limited and allows for estoppel to apply only if the

reasons the defendant “agreed to” are sufficient to support an ends-of-justice continuance.

See

. So if the defendant represents to the district court that a continuance is

warranted under the Act when it in fact is not, Keith may not permit us to find estoppel.

Given these potential conflicts, we hold that in light of Zedner, Keith’s formulation of when

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a defendant is estopped from raising a Speedy Trial Act challenge is no longer good law in

all cases. See Banks,

.

Applying Zedner, Velasquez is not estopped from raising his Speedy Trial

challenge. To begin, the argument he presents now is not “clearly inconsistent” with the

position he took during the arraignment.

. As we have explained, there is

no evidence that the parties envisioned that the district court would, after the arraignment’s

conclusion, consider granting an ends-of-justice continuance under the Speedy Trial Act.

Velasquez could not have taken a position on a continuance for which he had no notice.

See

at 505–06 (holding that the defendant’s representation that he needed more time to

gather evidence was not “clearly inconsistent” with his later argument that the continuance

was invalid under the Speedy Trial Act because “the discussion at the January 31 status

conference,” during which the continuance was granted, “did not focus on the requirements

of the Act”); Alvarez-Perez,

(“Alvarez never represented that the period

from June 27 to July 18 was excludable, nor did he argue to the court that July 18 was the

proper start date [for the Speedy Trial clock], so he is not now judicially estopped from

taking a contrary position.”); United States v. Mathurin,

(11th Cir.

2012) (“Before the indictment was filed, [defendant’s] counsel simply asked the

government for more time to consider a plea offer. That does not equal asking the

government to exceed the time limits permitted by the Act, and so it is not ‘clearly

inconsistent’ with . . . seeking dismissal of the indictment.”).

Further, and for similar reasons, Velasquez did not “succeed[] in persuading [the

district] court” to find that an ends-of-justice continuance was warranted on July 22.

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Zedner,

(citation omitted). Again, the parties did not ask for a Speedy Trial

continuance at the end of Velasquez’ arraignment, let alone cite the Speedy Trial Act. The

district court took it upon itself to grant an ends-of-justice continuance. So this factor also

counsels against estoppel. See

(holding that the defendant did not persuade the

district court to hold that prospective waivers of Speedy Trial rights were valid because “it

was the District Court that requested the waiver and produced the form for [him] to sign”).

Lastly, there is a diminished risk here that Velasquez will “derive an unfair

advantage” from enforcing his Speedy Trial Act rights.

(citation omitted). To be

sure, his original counsel is not blameless as she took nearly three months to provide the

district court’s case manager with her trial availability. Nonetheless, as the Supreme Court

has explained, enforcing the Speedy Trial Act’s procedural requirements for ends-of-

justice continuances “need not represent a windfall” to the defendant because the Act

permits the district court to “dismiss the charges without prejudice.” Bloate v. United

States,

, 214–15 (2010). Indeed, the Act itself provides that in deciding

whether to dismiss an indictment with or without prejudice, the court may consider “the

facts and circumstances of the case which led to the dismissal.”

(a)(2);

see Bloate,

(concluding the same and citing this provision to observe that

“a district court should consider, among other factors, the party responsible for the delay”).

Accordingly, under these facts, the risk of a windfall benefit accruing to Velasquez through

his Speedy Trial challenge is limited.

In sum, because none of the Zedner factors suggest that estoppel is appropriate here,

we conclude that Velasquez’ Speedy Trial Act claim may proceed.

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****

Velasquez has shown that the district court’s July 22, 2019, continuance did not

comply with the Speedy Trial Act’s procedural requirements for granting ends-of-justice

continuances. That error was per se harmful, so we cannot exclude the 108-day period

between July 22, 2019, and November 7, 2019, from Velasquez’ Speedy Trial computation.

See Zedner, 547 U.S. at 507–09. Since more than 70 non-excludable days elapsed before

Velasquez’ trial occurred, the Speedy Trial Act requires that Counts One and Four be

dismissed.

(c)(1), 3162(a)(2). “We leave it to the district court to

determine in the first instance whether [that] dismissal should be with or without

prejudice.” Henry,

.

III.

For the foregoing reasons, we reverse the district court’s order denying Velasquez’

motion to dismiss Counts One and Four for a violation of the Speedy Trial Act and vacate

his convictions on those counts. As a result, we also vacate his entire sentence. See United

States v. Ventura,

(4th Cir. 2017) (explaining that, under the “sentencing

package doctrine,” when some of a defendant’s convictions are vacated “the sentence

becomes void in its entirety”). 4 The case is remanded for further proceedings consistent

with this opinion.

REVERSED, VACATED IN PART,

4 Our vacatur of Velasquez’ sentence renders moot his separate challenges to his sentence, because on remand the district court will be “free to revisit any rulings it made (Continued) 16 USCA4 Appeal: 20-4514 Doc: 75 Filed: 10/25/2022 Pg: 17 of 17

AND REMANDED

at the initial sentencing.” Ventura,

(citation omitted); see also United States v. Smith,

, 125 n.2 (4th Cir. 1996) (holding that the defendant’s challenges to his sentence were mooted by the vacatur of some, but not all, of his convictions on appeal). 17