United States v. Barnes: Tenth Circuit Confirms Unconditional Guilty Plea Waives Post-Conviction Statutory Challenges to § 924(c) Predicate Offenses

1. Introduction

On 25 June 2025, the United States Court of Appeals for the Tenth Circuit handed down its published decision in United States v. Barnes, No. 24-3062. The appeal arose from a violent gang-related retaliatory shooting in Kansas City, Kansas, which ultimately resulted in Nadarius Barnes pleading guilty to:

• Forcible assault on a federal officer with a dangerous weapon, 18 U.S.C. § 111(b); and
• Discharging a firearm during a crime of violence, 18 U.S.C. § 924(c)(1)(A)(iii).

Barnes sought reversal of both his conviction under § 924(c) and his above-Guidelines sentence of 156 months. The key issues presented were:

• Whether an unconditional guilty plea bars a defendant from later arguing that the predicate offense (§ 111(b)) is not a “crime of violence” for purposes of § 924(c); and
• Whether the district court abused its discretion by departing and varying upward from the Guidelines when it imposed sentence.

2. Summary of the Judgment

Writing for a unanimous panel, Judge Kelly affirmed both the conviction and the sentence. The court announced two principal holdings:

1. Waiver Through Unconditional Plea. By entering a voluntary and unconditional guilty plea, Barnes waived his ability to challenge, on appeal, whether § 111(b) categorically qualifies as a crime of violence for § 924(c) purposes.
2. Sentence Reasonableness. The 156-month sentence, which included a 12-month upward variance (and, alternately, an upward departure) on count one, was substantively reasonable given the § 3553(a) factors. Any potential error in the court’s separate departure analysis was harmless because the same sentence was independently justified as a variance.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• United States v. De Vaughn, 694 F.3d 1141 (10th Cir. 2012): Reiterated that an unconditional guilty plea waives non-jurisdictional defects. Barnes invoked older Tenth Circuit cases (Barboa, Green, Barnhardt) that had treated certain “not-really-a-crime” arguments as jurisdictional. The panel explained that De Vaughn—itself relying on the Supreme Court’s narrower definition of jurisdiction in Cotton—superseded those earlier authorities.
• United States v. Cotton, 535 U.S. 625 (2002): Limited the meaning of “jurisdiction” to the court’s constitutional or statutory power to adjudicate a case. Indictment defects (and, by extension, categorical-approach disputes) are not jurisdictional, therefore they may be waived.
• Class v. United States, 583 U.S. 174 (2018) & Broce, 488 U.S. 563 (1989): Confirmed that a guilty plea admits the elements of the offense and waives claims that contradict those admissions, except for a narrow category of constitutional claims (e.g., facial statute invalidity).
• Seventh and Fourth Circuit precedents—Grzegorczyk v. United States, 997 F.3d 743 (7th Cir. 2021) and United States v. Pittman, 125 F.4th 527 (4th Cir. 2025): The Tenth Circuit found these persuasive; both held that a defendant’s unconditional plea waives post-plea categorical challenges to § 924(c) predicates.
• United States v. Kendall, 876 F.3d 1264 (10th Cir. 2017): Previously concluded that § 111(b) does constitute a crime of violence. Though Barnes tried to relitigate this categorically, the court held he had already waived the point.
• Sentencing Precedents: Gall (2007) set abuse-of-discretion standard; Pettigrew, 468 F.3d 626 (10th Cir. 2006), approved upward departures under § 2A2.2 when multiple victims and reckless conduct exist; Vazquez-Garcia, 130 F.4th 891 (10th Cir. 2025) clarified “departure vs. variance.”

3.2 Legal Reasoning of the Court

3.2.1 Waiver Doctrine Applied

The panel embarked on a two-step analysis:

1. Scope of Waiver. It began by reaffirming the rule that an unconditional guilty plea waives “all non-jurisdictional defects,” unless within the narrow constitutional exceptions recognized in Class. A challenge contending that § 111(b) lacks a “physical-force element” is a statutory (non-constitutional) argument.
2. Nature of the Challenge. The court characterized Barnes’s contention—that “the conduct admitted is not criminal when paired with § 924(c)”—as a categorical interpretation issue, not a question of the district court’s adjudicatory power. That type of claim, under Cotton and De Vaughn, is waivable. Because Barnes’s plea was unconditional, and he did not preserve the issue via Fed. R. Crim. P. 11(a)(2) (conditional plea), the challenge was barred.

3.2.2 Sentencing – Departure vs. Variance

The district judge both departed under the Guidelines (§ 5K2.0 framework) and, as an independent alternative, varied upward after a § 3553(a) analysis. Recognising the two concepts are analytically distinct, the Tenth Circuit nevertheless held:

• Even if any error tainted the upward departure rationale (for mis-describing § 2A2.2’s “heartland”), the same 36-month sentence on count one was fully supported by the upward variance—which the court meticulously grounded in the facts and § 3553(a) considerations. Thus, any error would be harmless.

The panel reviewed the variance only for substantive reasonableness and found no abuse of discretion. Factors emphasised by the district court included:

• The retaliatory, gang-motivated nature of the offense and its “indiscriminate” character.
• Multiple victims: an ATF agent and an uninvolved civilian, plus extensive property damage.
• The need for deterrence, public protection, and promotion of respect for the law.
• Barnes’s voluntary participation despite youth and limited record.

Given those considerations, a one-year variance above the top of the adjusted range (from 24 to 36 months on count one) did not “exceed the bounds of permissible choice.”

3.3 Potential Impact of the Judgment

3.3.1 Plea-Bargaining Strategy

The decision draws a bright line in the Tenth Circuit: defendants wishing to preserve categorical challenges to § 924(c) predicates must enter a conditional plea or proceed to trial. Otherwise, those arguments are forfeited. This will likely reshape defense counsel’s advice when the predicate offense’s crime-of-violence status is debatable.

3.3.2 Streamlining Appellate Dockets

By foreclosing post-plea categorical attacks in most instances, the ruling may reduce § 924(c) appeals that follow unconditional pleas, thereby narrowing the grounds of review.

3.3.3 Sentencing Guidance

The opinion reinforces two sentencing principles:

• Harmless-error safety valve. When both departure and variance theories are articulated, an error in one will not warrant reversal if the other independently supports the sentence and the record shows the court would impose the same term.
• Pettigrew’s reach. Upward departures or variances for multi-victim assaults remain acceptable where the Guidelines’ base assault provisions do not fully capture the gravity or scope of the harm.

4. Complex Concepts Simplified

• Crime of Violence (COV): A term used in several federal statutes (including § 924(c)) describing offenses that have, as an element, the use / attempted use / threatened use of physical force. If an offense is not a COV, it cannot serve as a § 924(c) predicate.
• Unconditional vs. Conditional Plea: An unconditional plea admits guilt without reserving issues for appeal; a conditional plea (Rule 11(a)(2)) expressly preserves specified legal claims.
• Departure vs. Variance: A departure changes the advisory range by applying a specific Guidelines provision (§ 5K2.x); a variance is a court’s decision to impose a sentence outside the range, based solely on the statutory § 3553(a) factors.
• Heartland: The ordinary set of cases contemplated by a particular Guideline. Conduct outside the “heartland” can justify a departure.

5. Conclusion

United States v. Barnes provides two notable clarifications in federal criminal jurisprudence within the Tenth Circuit:

1. A defendant who enters an unconditional guilty plea relinquishes the right to later contest, on appeal, whether the underlying offense qualifies categorically as a crime of violence for § 924(c) purposes. Such statutory-interpretation issues are non-jurisdictional and therefore waivable.
2. When a district court offers both departure and variance rationales, an adequately supported variance will sustain the sentence even if the departure analysis is flawed, so long as the record demonstrates the same sentence would be imposed.

By cementing these principles, the Tenth Circuit has tightened the procedural mechanics of plea preservation and offered sentencing courts, practitioners, and defendants a clearer roadmap for navigating § 924(c) litigation and Guidelines deviations. Future appellants in the Circuit who wish to mount categorical challenges must now negotiate conditional pleas or risk forfeiture, while sentencing judges may confidently rely on § 3553(a) analyses to justify upward variances where the facts demand enhanced punishment.