United States v. Nailor: Unpreserved Facial Challenges to § 922(g)(1) Trigger Plain-Error Review; As-Applied Challenges Turn on Williams “Dangerousness” Without Remand Where Record Suffices

1. Introduction

In United States v. Eddie Lee Nailor, III (6th Cir. Mar. 18, 2026) (unpublished), the Sixth Circuit affirmed a felon-in-possession conviction under 18 U.S.C. § 922(g)(1). The defendant, Eddie Lee Nailor, III, pleaded guilty after the district court denied his motion to dismiss on Second Amendment grounds.

The appeal presented two constitutional theories: (1) a facial challenge arguing § 922(g)(1) is vague and overbroad; and (2) an as-applied challenge arguing that, given Nailor’s circumstances, applying § 922(g)(1) violated the Second Amendment. A further procedural issue was whether the case should be remanded because the district court decided the motion before the Sixth Circuit’s intervening decision in United States v. Williams, 113 F.4th 637 (6th Cir. 2024), which announced the circuit’s governing test for as-applied challenges to § 922(g)(1).

2. Summary of the Opinion

  • Facial challenge: The court held Nailor did not raise a facial challenge in the district court; therefore, the claim was forfeited and reviewed only for plain error. Under binding precedent—United States v. Williams, 113 F.4th 637, 662 (6th Cir. 2024)—§ 922(g)(1) is “constitutional on its face,” foreclosing relief.
  • As-applied challenge: Applying Williams, the court held Nailor failed to carry his burden to show he is “not dangerous.” The panel emphasized his armed-robbery history and later weapons-related and probation-violating conduct, as well as the circumstances of the instant incident (gun discovered during a traffic stop, alcohol present, marijuana found).
  • Remand: The court refused remand for a Williams re-analysis because circuit precedent permits affirmance without remand where the record already shows dangerousness.

3. Analysis

3.1. Precedents Cited

A. Standards of review and preservation

  • United States v. Goins, 118 F.4th 794, 797 (6th Cir. 2024): Cited for the baseline proposition that constitutionality challenges to federal statutes are reviewed de novo—but only as to issues properly preserved. In Nailor, that general rule was displaced for the facial claim because it was not preserved below.
  • Fed. R. Crim. P. 52(b) and United States v. Miller, 734 F.3d 530, 536 (6th Cir. 2013): Used to justify applying plain-error review to Nailor’s facial challenge first pressed on appeal. The opinion’s key move is not merely announcing the standard; it makes a factual record determination that Nailor “consistently raised only one claim, the as-applied claim.”
  • United States v. Henry, 797 F.3d 371, 374 (6th Cir. 2015): Supplies the familiar four-part plain-error framework. Nailor’s failure to argue the plain-error factors becomes independently fatal, and—more importantly—binding precedent forecloses any “plain” error in any event.

B. The controlling Second Amendment framework

  • District of Columbia v. Heller, 554 U.S. 570, 626 (2008): The panel grounds its analysis in Heller’s statement that the Second Amendment right is “not unlimited,” permitting longstanding, public-safety-oriented limits. Nailor uses Heller primarily as the doctrinal gateway to allow disarmament regulations.
  • United States v. Rahimi, 602 U.S. 680, 692 (2024): Cited for the post-Bruen premise that laws consistent with “public-safety principles underpinning the Nation’s tradition of firearm regulation remain constitutional.” Nailor treats Rahimi as reinforcing the legitimacy of disarming individuals whose conduct aligns with historically recognized danger-focused restrictions.
  • United States v. Williams, 113 F.4th 637 (6th Cir. 2024): This is the centerpiece. The panel quotes and applies Williams for multiple propositions:
    • The government may constitutionally apply § 922(g)(1) to “dangerous” felons.
    • “Dangerousness” turns on the defendant’s “specific characteristics” and “entire criminal record.”
    • Robbery is “at least strong evidence” of dangerousness, “if not totally dispositive.”
    • The burden rests on the defendant to “show he’s not dangerous.”
    • Williams forecloses facial challenges by declaring § 922(g)(1) “constitutional on its face.”
    Nailor is best read as an application-and-enforcement decision: it does not extend Williams doctrinally, but it operationalizes it in three ways—(i) burden placement, (ii) evidentiary scope (whole record and offense details), and (iii) remand avoidance.
  • United States v. Williams, No. 24-1244, 2025 WL 1089531, at *2 (6th Cir. Apr. 11, 2025): Cited for the proposition that panels cannot “second-guess binding precedent” and therefore must reject facial challenges already foreclosed by the published Williams. Nailor uses this unpublished follow-on to show that the circuit is consistently enforcing the published Williams facial holding.
  • United States v. Elbe, 774 F.3d 885, 891 (6th Cir. 2014): Cited to underscore intra-circuit stare decisis: the panel is bound by Williams absent a superseding Supreme Court decision or en banc overruling. This is aimed at Nailor’s strategy of spending “most of his time criticizing” Williams.

C. What evidence counts in the dangerousness inquiry

  • United States v. Morton, 123 F.4th 492, 499 (6th Cir. 2024): Critical for the evidentiary breadth of the analysis. Nailor uses Morton for two linked propositions: (1) courts are “not confined to the fact of conviction alone” and may consider “how an offense was committed”; and (2) the court may consider the facts of the instant offense as well. This undermines Nailor’s effort to cabin the inquiry to formal labels or exclude the present offense conduct.
  • United States v. Robinson, No. 24-1469, 2025 WL 2105111, at *2 (6th Cir. July 28, 2025): Used to frame post-violent-offense recidivism as aggravating: later crimes “must be viewed in the context” of prior violence and may show “lack of reform.” This supports treating Nailor’s later weapons-related offenses as reinforcing dangerousness rather than isolated, “insignificant” events.
  • United States v. Oravets, No. 24-3817, 2025 WL 2682632, *2 (6th Cir. Sept. 19, 2025): Cited for the proposition that committing a § 922(g)(1) violation while on probation is an “independent ground” for disarmament. In Nailor, probation status becomes a separate public-safety signal, not merely a sentencing detail.

D. Remand doctrine in the post-Williams pipeline

  • United States v. White, No. 24-2064, 2025 WL 2060869, at *3 (6th Cir. July 23, 2025): Provides the rule against automatic remand after Williams where the record already demonstrates dangerousness. Nailor applies that rule to deny a do-over even though the district court analyzed the issue under United States v. Carey, 602 F.3d 738 (6th Cir. 2010).
  • United States v. Carey, 602 F.3d 738 (6th Cir. 2010): Not applied by the panel, but important context: the district court used Carey because it predated Williams. Nailor illustrates how Williams supplanted earlier approaches and how appellate courts handle cases decided under the prior framework.

3.2. Legal Reasoning

A. The court’s threshold move: characterizing what was preserved

The panel begins by resolving a practical litigation question: was Nailor’s district-court motion facial, as-applied, or both? It treats the district court record as showing only an as-applied challenge—highlighting that Nailor repeatedly used the phrase “as applied,” never used “facial,” and expressly disputed the government’s characterization in his reply.

That characterization drives two consequences: (1) the facial claim is forfeited and reviewed for plain error; and (2) the as-applied claim is considered on the merits under the controlling circuit framework.

B. Plain-error review plus binding precedent makes the facial challenge untenable

After invoking Rule 52(b) and Henry, the panel notes Nailor did not even attempt to satisfy the plain-error factors. But the decisive point is structural: even if he had, the “plainness” element cannot be met because Williams declares § 922(g)(1) “constitutional on its face.” Where precedent is directly on point, a panel cannot call the district court’s failure to strike the statute “plain error.”

C. The as-applied claim is resolved under Williams’ “dangerousness” test

The court treats Williams as the governing implementation of Heller and Rahimi for § 922(g)(1) within the Sixth Circuit: the constitutionality of disarming a felon turns on whether the individual is “dangerous,” assessed via “entire criminal record” and “specific characteristics,” with the burden on the defendant to prove non-dangerousness.

The panel then operationalizes “dangerousness” in a cumulative way:

  • Anchoring event—armed robbery: Because Williams labels robbery as strong (even potentially dispositive) evidence of dangerousness, Nailor’s armed-robbery conviction becomes the central pivot. The court also rejects formalistic attempts to minimize it: a nolo contendere plea is still a conviction for this purpose, and the court may consider offense details.
  • Reinforcement—later weapons-related conduct and recidivism: Later offenses (including carrying concealed weapons and felon-in-possession/ammunition offenses) are not treated as standalone proof of violence, but as evidence of “lack of reform” when viewed against the prior violent baseline (Robinson).
  • Confirmation—facts of the instant offense: Under Morton, the court considers the circumstances: firearm found in the vehicle, alcohol between legs, marijuana present, resistance during arrest. Probation status independently supports disarmament (Oravets).

D. Denial of remand: harmlessness-by-record in the Williams transition

Although the district court decided the issue pre-Williams and relied on Carey, the panel refuses remand under White: where the record already shows the defendant is dangerous, there is no need to send the case back for the district court to apply Williams in the first instance. In effect, the panel treats dangerousness as so clear on this record that any analytical mismatch below is non-prejudicial to the outcome.

3.3. Impact

  • Procedural impact—issue preservation in § 922(g)(1) litigation: Nailor reinforces that defendants must clearly and explicitly raise a facial challenge in the district court (and develop it) or face plain-error review on appeal. Given Williams’ facial holding, this also signals the futility—within the Sixth Circuit absent higher-court change—of facial attacks framed as vagueness/overbreadth.
  • Substantive impact—continued tightening around Williams’ dangerousness framework: The decision exemplifies an evidence-expansive dangerousness inquiry: courts may look beyond the “fact of conviction” to the offense manner, use PSR facts (here, “uncontested” at sentencing), and weigh the current offense conduct. This makes as-applied relief harder when the record includes violent history plus weapons recidivism or probation violations.
  • Institutional impact—reduced remands in pre-Williams cases: By applying White, Nailor contributes to a pattern: appellate panels will often resolve dangerousness themselves rather than remand, accelerating finality in the post-Williams transition.

4. Complex Concepts Simplified

  • Facial vs. as-applied challenge: A facial challenge claims a law is unconstitutional in all (or nearly all) applications; an as-applied challenge claims the law is unconstitutional when applied to this defendant’s particular circumstances.
  • Plain-error review: A highly deferential appellate standard for issues not preserved below. The appellant must show an obvious (“plain”) error that affected substantial rights and seriously harms the fairness or integrity of the proceedings.
  • Nolo contendere plea: A “no contest” plea—does not admit factual guilt in the colloquial sense, but results in a conviction and is generally treated like a conviction for downstream legal consequences.
  • Second Amendment “dangerousness” test (Sixth Circuit under Williams): For § 922(g)(1), the key question is whether the felon is “dangerous.” Courts look at the whole record, including the nature of prior offenses and how they were committed. The defendant bears the burden to prove he is not dangerous.
  • Considering “facts of the offense”: Under cases like Morton, courts may consider not only the conviction label (e.g., “robbery”) but also the circumstances (e.g., gunpoint conduct) as reflected in reliable record materials such as an uncontested PSR.

5. Conclusion

United States v. Nailor is a firm application of the Sixth Circuit’s post-Williams Second Amendment framework for felon-in-possession cases. It establishes (in practical, precedential-effect terms) three takeaways: (1) a facial challenge to § 922(g)(1) first raised on appeal is reviewed only for plain error and is foreclosed by Williams; (2) as-applied challenges rise or fall on whether the defendant can carry the burden to show he is not “dangerous,” with courts considering the entire criminal record and offense details; and (3) remand is not required in pre-Williams cases when the appellate record itself demonstrates dangerousness.