United States v. Nyandoro: Fifth Circuit Narrows the “Factual-Insufficiency” Exception and Re-Affirms that Constitutional Challenges Can Be Waived

Introduction

United States v. Nyandoro, No. 23-10579 (5th Cir. Aug. 4, 2025), is the Fifth Circuit’s latest word on two recurring questions in federal criminal practice:

When may a defendant withdraw a guilty plea after Bruen-era challenges to firearm statutes arise?
To what extent does an appeal-waiver bar a defendant from raising constitutional attacks on the statute of conviction—particularly attacks grounded in the Second Amendment?

The panel (Judges Stewart, Clement & Willett, J. Willett writing) affirmed the district court’s refusal to let Kenleone Joe Nyandoro withdraw a § 922(g)(3) guilty plea and held that his broad appeal-waiver foreclosed any attack on the district court’s acceptance of that plea. In doing so, the court tightened the contours of the “factual-insufficiency exception” to appeal-waivers and confirmed that a defendant can knowingly waive even cutting-edge Second-Amendment arguments.

Summary of the Judgment

After obtaining an unusually favorable plea deal tied to a rehabilitation program (STEPS), Nyandoro was terminated from that program when he fled police at 100 mph. Ten months after pleading guilty—and nine months after the Supreme Court’s landmark gun-rights decision in N.Y. State Rifle & Pistol Ass’n v. Bruen—he moved to withdraw his plea on the ground that § 922(g)(3) is unconstitutional under the Second and Fifth Amendments. The district court weighed the seven Carr factors, found only one factor in his favor, and denied the motion. On appeal Nyandoro argued:

The district court abused its discretion under Carr.
The court never should have accepted his plea because § 922(g)(3) is void, making the Rule 11 factual basis inadequate.

The Fifth Circuit rejected both arguments. First, it saw no Carr abuse of discretion: Nyandoro waited too long, had competent counsel, and had entered a knowing & voluntary plea. Second—and more significantly—the panel held that his broad appeal-waiver barred any Rule 11 attack. It clarified that:

(1) The “factual-insufficiency” exception to appeal-waivers is limited to elemental mismatches; it does not apply when the defendant’s quarrel is that the statute itself is unconstitutional.
(2) Second-Amendment (and other constitutional) challenges are “waivable” and were in fact waived here.

Analysis

A. Precedents Cited and Their Influence

1. United States v. Carr, 740 F.2d 339 (5th Cir. 1984)

Sets the seven-factor test for post-plea withdrawal. The district court’s systematic application—with explicit findings on prejudice, delay, court inconvenience, counsel efficacy, voluntariness, etc.—framed the Fifth Circuit’s deferential review.

2. New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022)

Supplied the sea-change in Second-Amendment analysis that sparked a flood of § 922 challenges. The panel held that, when a defendant relies on new precedent, delay is measured from Bruen, not later lower-court elaborations. That choice undercut Nyandoro’s “only two-months delay” narrative.

3. United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), rev’d, 602 U.S. 680 (2024)

Nyandoro argued that Rahimi (not Bruen) should reset the delay clock. The panel disagreed, noting that Nyandoro himself repeatedly anchored his brief to Bruen.

4. Miles, Jones, Meredith & Other 5th-Circuit Appeal-Waiver Cases

The court leaned heavily on a recent unpublished case, United States v. Jones (2024), which involved an identical waiver and identical § 922(g)(3) arguments. It also cited United States v. Miles (2024) to emphasize that Second-Amendment claims can be knowingly waived.

5. Johnson & Ortiz – Drawing the Elemental / Constitutional Line

The panel distinguished older caselaw allowing appeal despite a waiver when the admitted facts failed to satisfy a statutory element. Relying on United States v. Johnson, it said a constitutional attack, even if phrased as a “Rule 11 factual basis” defect, does not fit the narrow exception.

B. The Court’s Legal Reasoning

1. Plea-Withdrawal (Carr) Analysis

Asserted Innocence: counts for Nyandoro, but carries little weight alone.
Government Prejudice & Judicial Inconvenience: late motion required restarting a two-year-old case after PSR completion.
Delay: Measured from Bruen; nine-month gap “decisively” against withdrawal.
Knowing & Voluntary Plea / Counsel: Record rock-solid; later doctrinal developments do not undo voluntariness (Barnes principle).

2. Appeal-Waiver Enforcement

The waiver covered “the conviction [and] sentence,” subject to narrow exceptions (stat-max, arithmetic error, voluntariness, IAC). The court’s two-step analysis:

Knowing & Voluntary? Yes—colloquy was thorough, and later changes in law do not retroactively vitiate voluntariness.
Scope? Challenge falls squarely within “conviction” and none of the carve-outs.

Attempt to invoke the “factual-insufficiency” escape hatch failed because Nyandoro did not dispute that he (i) was an unlawful marijuana user, (ii) possessed a gun, (iii) in interstate commerce. His only gripe was that § 922(g)(3) shouldn’t exist. That is a constitutional claim—waived under Miles and related precedents.

3. Clarifying the “Factual-Insufficiency Exception”

Key doctrinal move: the court explicitly cabined the exception to elemental mismatches. If the defendant’s admitted conduct technically satisfies every statutory element, the exception does not resuscitate a waived constitutional defense. The court worried that treating constitutional claims as “factual insufficiency” would “gut our settled precedent” on waivability.

C. Potential Impact

Tactical Timing: Criminal defendants considering a post-plea § 922 attack must move promptly—delay will be counted from the earliest controlling authority (Bruen), not later circuit embellishments.
Plea-Bargain Finality: Prosecutors can rely on broad appeal-waivers to foreclose Second-Amendment challenges—lowering litigation risk when offering plea deals in firearms cases.
Litigation Strategy: Defense counsel must either reserve constitutional claims in the plea agreement or litigate them pre-plea. A “wait-and-see” approach post-Bruen is now riskier.
Rule 11 Colloquy Content: Courts need not predict or enumerate possible future constitutional shifts; a plea is voluntary if correct under then-applicable law.
Inter-Circuit Influence: Although a Fifth-Circuit case, the opinion offers a detailed template for other circuits facing the same Bruen-driven withdrawal motions and waiver fights.

Complex Concepts Simplified

1. Appeal-Waiver

A clause in a plea agreement where the defendant promises not to appeal certain issues. Courts enforce it unless (a) the waiver itself was not knowing & voluntary, or (b) the issue falls inside a stated exception (e.g. an illegal sentence).

2. Factual-Insufficiency Exception

Even with a waiver, a defendant may appeal if the facts he admitted do not add up to the elements of the crime. Example: pleading guilty to being a “felon” in possession when the prior conviction is not a felony.

3. § 922(g)(3) – “Unlawful User”

Criminalizes possessing a firearm while being an “unlawful user” of a controlled substance. The statute is silent on frequency, recency, or quantity of drug use—leading to vagueness and Second-Amendment challenges post-Bruen.

4. Carr Factors (plea withdrawal)

Assertion of innocence
Government prejudice
Delay in filing
Court inconvenience
Close assistance of counsel
Knowing & voluntary plea
Waste of judicial resources

5. Measuring “Delay” After Intervening Precedent

The clock starts when the first binding authority (Bruen) creates a plausible basis, not when later cases (Rahimi) refine it.

Conclusion

United States v. Nyandoro reinforces plea-bargain finality in the volatile post-Bruen firearms landscape. The Fifth Circuit:

Re-affirmed broad discretion to deny late plea-withdrawal motions, particularly when defendants wait months after game-changing precedent.
Sharply narrowed the “factual-insufficiency” exception, preventing defendants from re-branding waived constitutional arguments as Rule 11 defects.
Clarified that constitutional challenges—including Second-Amendment attacks on § 922(g)(3)—are fully waivable.

Practitioners should treat Nyandoro as a warning: preserve constitutional objections explicitly in plea agreements or litigate them upfront; otherwise, a knowing and voluntary waiver will slam the appellate door. The decision’s careful doctrinal pruning supplies a sturdy precedent for federal courts nationwide confronting similar Bruen-inspired challenges.