Post-Hunter I: Appeal Waivers Yield Only to Obvious, Egregious Error—Debatable § 922(g)(3) Constitutional Claims Remain Waived

I. Introduction

United States v. Nyandoro (5th Cir. Sept. 4, 2026) returns to the Fifth Circuit on a Supreme Court remand after Hunter v. United States (Hunter I), 146 S. Ct. 1702 (2026), recognized a narrow “miscarriage-of-justice” exception to the enforcement of (sentencing) appeal waivers. The defendant, Kenleone Joe Nyandoro, pleaded guilty to possessing a firearm as an unlawful user of a controlled substance under 18 U.S.C. § 922(g)(3), received an unusually favorable diversionary plea arrangement through the STEPS program, and—critically—waived his right to appeal his conviction and sentence (with limited exceptions). After he was terminated from STEPS, he sought to withdraw his plea and argued the statute was unconstitutional under the Second and Fifth Amendments (and additionally beyond Congress’s enumerated powers).

On initial appeal, the Fifth Circuit enforced the waiver and affirmed. The Supreme Court then vacated and remanded “for reconsideration in light of Hunter I.” The key issues on remand were:

  • Whether Hunter I’s miscarriage-of-justice exception can defeat Nyandoro’s appeal waiver in a challenge directed at the validity of the conviction (not merely the sentence); and
  • Whether Nyandoro’s constitutional attacks on § 922(g)(3) amount to the kind of obvious, egregious error that meets the “high bar” described in Hunter I and refined by United States v. Hunter (Hunter II), 183 F.4th 416 (5th Cir. 2026).

II. Summary of the Opinion

The Fifth Circuit again affirmed. Even assuming (without deciding) that Hunter I’s miscarriage-of-justice exception can apply beyond sentencing-appeal waivers to conviction appeals, Nyandoro’s constitutional arguments do not satisfy the exception because they are debatable rather than obvious. The court also held the remand did not reopen the already-resolved issue regarding the district court’s denial of Nyandoro’s motion to withdraw his plea; Hunter I concerned waiver enforceability, not plea withdrawal standards, and Nyandoro’s attempt to revive the issue via United States v. Presley was both procedurally disfavored and substantively unavailing.

III. Analysis

A. Precedents Cited

1. The Hunter framework: “miscarriage of justice” and “obviousness”

  • Hunter v. United States (Hunter I), 146 S. Ct. 1702 (2026): The Supreme Court held that an otherwise valid sentencing-appeal waiver is unenforceable when enforcement would result in a miscarriage of justice, defined as leaving in place “the kind of egregious error that would bring the judicial system into disrepute.” The Court emphasized:
    • Not all errors qualify; “standard-fare,” “uncertain,” or “ordinary” errors do not.
    • The error must be obvious—“not one a judge could reasonably make”—and of a type undermining public confidence.
    • Illustrative categories: sentences exceeding statutory authorization; “blatant constitutional error” (e.g., race-based sentencing; constitutionally infirm supervised-release conditions); and sentences imposed without “some minimum of civilized procedure” (including extreme hypotheticals).
  • United States v. Hunter (Hunter II), 183 F.4th 416 (5th Cir. 2026): On remand, the Fifth Circuit operationalized “obviousness,” stressing that an error is “clear or obvious only if it is apparent under controlling law and does not require an extension of precedent.” Hunter II treated a “paucity of authorities” as a “substantial strike” against “blatant” constitutional error, and used plain-error doctrine as a guide (without equating the standards).
  • Jones v. United States, 146 S. Ct. 2547 (2026) (Sotomayor, J., respecting the denial of certiorari): Cited to highlight that Hunter I addressed waivers “in the sentencing context,” while inviting lower courts to consider its reasoning in conviction/collateral-review waiver settings. The Fifth Circuit uses this to frame, but not resolve, whether the exception extends to conviction appeals.
  • Plain-error analogs cited within Hunter II and reiterated here as informative: United States v. Evans, 587 F.3d 667 (5th Cir. 2009); United States v. Gordon, 838 F.3d 597 (5th Cir. 2016); United States v. Bree, 927 F.3d 856 (5th Cir. 2019); United States v. Rocha, 732 F. App’x 291 (5th Cir. 2018) (per curiam); and for timing in plain error, Henderson v. United States, 568 U.S. 266 (2013).

2. Appeal waivers and the earlier Nyandoro decision

  • United States v. Nyandoro, 146 F.4th 448 (5th Cir. 2025): The panel previously enforced the appeal waiver, rejected attempts to fit the appeal into waiver exceptions, and held the plea-withdrawal denial was not an abuse of discretion under United States v. Carr. The Supreme Court vacated this decision, but much of its reasoning remains influential on remand except where Hunter I changes the waiver landscape.
  • United States v. Carr, 740 F.2d 339 (5th Cir. 1984): Provides the multi-factor “fair and just reason” framework for pre-sentence plea withdrawal, including delay and prejudice to the Government.
  • United States v. White, 258 F.3d 374 (5th Cir. 2001): Previously invoked by Nyandoro but again deemed “inapposite” as a basis to avoid the waiver.
  • United States v. Meredith, 52 F.4th 984 (5th Cir. 2022): Defines the “sentence exceeding the statutory maximum” waiver exception as exceeding “the upper limit of punishment that Congress has legislatively specified.”

3. Substantive constitutional law: Second Amendment, vagueness, enumerated powers

  • Second Amendment framework: District of Columbia v. Heller, 554 U.S. 570 (2008) (right not unlimited); N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) (text-and-history methodology; regulation must be consistent with historical tradition).
  • Fifth Circuit § 922(g)(3) decisions: United States v. Connelly, 117 F.4th 269 (5th Cir. 2024) (unconstitutional as applied to disarming based on “habitual or occasional drug use,” but notes constitutionally valid sets of circumstances such as disarming “presently intoxicated persons”); United States v. Daniels, 124 F.4th 967 (5th Cir. 2025) (reiterates Connelly; statute not facially unconstitutional; suggests “piecemeal” approach and hints at other possible constitutional applications).
  • Supreme Court post-plea development: United States v. Hemani, 146 S. Ct. 1677 (2026) (a “narrow” holding; rejects disarmament based solely on regular use of any amount of any controlled substance; leaves open disarming the presently intoxicated and prosecutions supported by individualized proof of dangerousness).
  • Commerce Clause / enumerated powers: The court relies on its history upholding other subsections of § 922(g) under the Commerce Clause, including United States v. Allred, 182 F.4th 448 (5th Cir. 2026) (§ 922(g)(9)) and United States v. Alcantar, 733 F.3d 143 (5th Cir. 2013) (§ 922(g)(1)), plus an unpublished decision: United States v. Price, 728 F. App’x 369 (5th Cir. 2018) (per curiam) (rejecting enumerated-powers challenge to § 922(g)(3)).
  • Vagueness: United States v. Patterson, 431 F.3d 832 (5th Cir. 2005) (rejects a nearly identical vagueness challenge to § 922(g)(3)).

4. Procedure on remand and raising new arguments

  • Mandate/remand discipline: Cole v. Carson, 935 F.3d 444 (5th Cir. 2019) (en banc) (“We do not reach issues unaddressed by the mandate on remand.”).
  • Disfavoring new arguments in supplemental briefing: United States v. Bonilla-Mungia, 422 F.3d 316 (5th Cir. 2005).
  • The plea-withdrawal comparator: United States v. Presley, 478 F.2d 163 (5th Cir. 1973), discussed alongside older plea-withdrawal authorities and rule history: United States v. Michaelson, 552 F.2d 472 (2d Cir. 1977), United States v. Rodriguez-DeMaya, 674 F.2d 1122 (5th Cir. 1982), and Amendments to the Federal Rules of Criminal Procedure, 461 U.S. 1117 (1983), culminating in today’s Fed. R. Crim. P. 11(d)(2)(B).
  • Waiver vs forfeiture distinction (used to illustrate why the waiver context is stricter than plain error): Wood v. Milyard, 566 U.S. 463 (2012); plus the panel’s plain-error reminder: United States v. Morgan, 147 F.4th 522 (5th Cir. 2025).

B. Legal Reasoning

1. The court’s central move: assume broader scope, deny relief on “obviousness”

The Government urged a categorical limitation: that Hunter I applies only to sentencing appeals, not conviction appeals. The court declined to decide that scope question. Instead, it assumed (for argument’s sake) that the exception could reach an appeal challenging a conviction and held Nyandoro still loses because he cannot meet Hunter I’s “high bar,” as sharpened by Hunter II.

2. “Miscarriage of justice” requires more than “unconstitutional statute” rhetoric

Nyandoro argued (citing out-of-circuit authority, e.g., United States v. McKinney, 60 F.4th 188 (4th Cir. 2023)) that a conviction under an unconstitutional statute should automatically qualify as a miscarriage of justice. The Fifth Circuit rejected any automatic rule. Even if an unconstitutional conviction would be the right “type” of harm, Hunter I still independently requires obviousness: the error must be one “not one a judge could reasonably make.”

3. Application to Nyandoro’s three theories

  1. Commerce Clause / enumerated powers: Given the Fifth Circuit’s repeated holdings upholding other portions of § 922(g) under the Commerce Clause (e.g., United States v. Alcantar, United States v. Allred) and an unpublished decision sustaining § 922(g)(3) (United States v. Price), the panel found it plainly reasonable for a judge to conclude § 922(g)(3) is within congressional power. Therefore, no “obvious” error.
  2. Vagueness (Fifth Amendment Due Process): The Fifth Circuit already rejected a nearly identical vagueness challenge to § 922(g)(3) in United States v. Patterson. That precedent alone makes it reasonable for a judge to reject Nyandoro’s vagueness claim. Therefore, no “obvious” error.
  3. Second Amendment: This required the most analysis but still failed the “obviousness” requirement. Under Bruen, even conduct within the Second Amendment’s text can be regulated if consistent with historical tradition. The panel emphasized that United States v. Connelly and United States v. Daniels reject disarmament based merely on “habitual or occasional drug use,” but also recognize constitutionally valid applications—most clearly, disarming the “presently intoxicated.” On Nyandoro’s facts (admitted daily use; same-day evidence of marijuana odor), the as-applied constitutional question remains at least reasonably debatable, and “debatable is not obvious.”

    The panel further held that United States v. Hemani does not make the unconstitutionality obvious because Hemani is “narrow” and explicitly leaves open: (i) disarming the presently intoxicated; and (ii) prosecutions supported by individualized proof that drug use renders a defendant dangerous. Thus, even if Hemani’s reasoning “may ultimately point one way,” it does not resolve the key open questions in a way that makes acceptance of the plea “one no reasonable judge could make.”

4. Remand discipline: Hunter I does not reopen plea-withdrawal

Nyandoro tried to revive his claim that the district court abused its discretion in denying plea withdrawal. The panel refused for two reinforcing reasons:

  • Scope of remand: Hunter I concerns appeal-waiver enforceability, not plea-withdrawal standards; under Cole v. Carson, issues beyond the mandate are typically not revisited.
  • New authority raised late: Nyandoro’s reliance on United States v. Presley appeared only in supplemental briefing, contrary to United States v. Bonilla-Mungia. Even on the merits, Presley did not establish a categorical rule; it considered delay and prejudice—factors later formalized in United States v. Carr. The panel reiterated its prior conclusion that Carr’s factors supported denying withdrawal (notably, Nyandoro’s nine-month delay and the Government’s prejudice).

C. Impact

The decision’s practical significance is less about § 922(g)(3)’s ultimate constitutionality and more about waiver doctrine after Hunter I:

  • High-bar clarification in the conviction context (without deciding scope): The Fifth Circuit leaves open whether Hunter I applies to conviction appeals, but signals that even if it does, defendants must satisfy the same demanding “obviousness” requirement. This makes “miscarriage-of-justice” arguments difficult where the law is unsettled or evolving.
  • Constitutional litigation risk allocation: Defendants who enter plea agreements with broad appeal waivers face a steep uphill climb to later litigate constitutional challenges—especially in fast-moving areas like post-Bruen Second Amendment doctrine. Unless the constitutional defect is clear under controlling law, the waiver will likely stand.
  • § 922(g)(3) litigation posture in the Fifth Circuit: The panel reinforces that, even after Connelly, Daniels, and Hemani, § 922(g)(3) remains a domain of as-applied, fact-sensitive adjudication—precisely the sort of setting where “obvious error” is hard to show.
  • Remand strategy limits: The opinion underscores that Supreme Court remands tied to a specific intervening decision are not open invitations to relitigate previously decided issues, and that late-raised arguments in supplemental briefs are disfavored.

IV. Complex Concepts Simplified

  • Appeal waiver: A plea-agreement provision where the defendant gives up (waives) the right to appeal certain issues. Waiver is stronger than forfeiture; it is an intentional relinquishment.
  • Miscarriage-of-justice exception (Hunter I): A narrow safety valve allowing courts to refuse enforcement of a waiver when doing so would preserve an egregious error that would disgrace the judiciary. The error must be both (i) institutionally serious and (ii) obvious.
  • “Obvious” error: Not merely “wrong,” but so clearly wrong that “a judge could [not] reasonably make” it. Hunter II ties this to whether the error is apparent under controlling law without extending precedent.
  • Facial vs as-applied constitutional challenges: A facial challenge claims a law is unconstitutional in all applications; an as-applied challenge claims the law is unconstitutional when applied to the particular defendant’s facts. Daniels and Connelly endorse a “piecemeal” (as-applied) approach to § 922(g)(3).
  • Bruen “text-and-history” test: If the Second Amendment’s text covers the conduct, the government must justify regulation by showing consistency with the Nation’s historical tradition of firearm regulation.
  • Vagueness (Due Process): A statute is unconstitutionally vague if it fails to give ordinary people fair notice of what is prohibited or invites arbitrary enforcement. The Fifth Circuit treated Patterson as resolving this against Nyandoro for § 922(g)(3).
  • Mandate rule on remand: After a remand, courts generally address only what the higher court’s mandate covers; unrelated issues are typically not revisited.

V. Conclusion

On remand, the Fifth Circuit integrates Hunter I and Hunter II into its waiver analysis and holds that the new miscarriage-of-justice exception does not help Nyandoro. Even assuming the exception can apply to conviction appeals, Nyandoro’s attacks on § 922(g)(3)—Commerce Clause, vagueness, and Second Amendment—are not obvious under controlling law, particularly given the Fifth Circuit’s own nuanced § 922(g)(3) jurisprudence (Connelly, Daniels) and the Supreme Court’s deliberately narrow and unresolved guidance in Hemani. The court also reinforces remand discipline and rejects attempts to relitigate plea-withdrawal issues outside the mandate.