“Waivers Mean Waivers” – United States v. Nyandoro and the Fifth Circuit’s Re-Statement on Appeal Waivers, Factual-Insufficiency, and Second-Amendment Challenges

1. Introduction

United States v. Nyandoro, No. 23-10579 (5th Cir. June 19, 2025), presented the Court of Appeals for the Fifth Circuit with a post-Bruen attempt to unwind a guilty plea to 18 U.S.C. § 922(g)(3) (possession of a firearm by an unlawful drug user). The defendant, Kenleone Joe Nyandoro, had negotiated a favorable plea bargain that included entry into a rehabilitation diversion program and an extensive appeal-waiver clause. After failing out of the program and facing sentencing, he sought to withdraw his plea and, alternatively, to invalidate it on constitutional grounds (Second Amendment, Due Process vagueness, and Commerce Clause arguments).

The core questions before the Fifth Circuit were:

• Whether the district court abused its discretion in denying Nyandoro’s pre-sentence motion to withdraw his nearly ten-month-old guilty plea under United States v. Carr.
• Whether the district court should have refused to accept the plea in the first instance because § 922(g)(3) is allegedly unconstitutional—and, crucially, whether Nyandoro’s extensive appeal waiver foreclosed that argument.

The Fifth Circuit answered both questions against the defendant and, in doing so, delivered a detailed restatement of two doctrinal points that will carry forward:

1. Constitutional challenges to the statute of conviction (including Second-Amendment challenges) are waivable; therefore, a knowing and voluntary appeal waiver bars such attacks on the judgment.
2. The “factual-insufficiency” exception that survives an appeal waiver remains narrowly limited to claims that the admitted facts do not satisfy the statutory elements—not to arguments that the statute itself is infirm.

2. Summary of the Judgment

The panel (Judges Stewart, Clement, Willett—the opinion written by Judge Willett) affirmed the district court’s judgment in full. Key holdings:

• Denial of plea withdrawal – affirmed. Applying the seven Carr factors, the district court did not abuse its discretion. Most factors—including delay, prejudice to the Government, availability of counsel, and knowing/voluntary nature of the plea—favored the Government.
• Acceptance of the plea – challenge barred by waiver. Nyandoro’s appeal waiver was knowing and voluntary, and none of the recognized exceptions (factual insufficiency, sentence in excess of the statutory maximum, involuntariness of plea, ineffective assistance) applied. The panel rejected creation of a “miscarriage-of-justice” exception.

Accordingly, Nyandoro’s 51-month sentence and three-year term of supervised release were left undisturbed.

3. Analysis

3.1 Precedents Cited and Their Influence

• United States v. Carr, 740 F.2d 339 (5th Cir. 1984) – Provides the seven-factor test for assessing pre-sentence motions to withdraw guilty pleas. The district court’s Carr analysis formed the backbone of the appellate review.
• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022) – Heralded the “history-and-tradition” test for modern Second-Amendment analysis. Bruen was the milestone the district court used to measure Nyandoro’s nine-month delay.
• United States v. Rahimi, 61 F.4th 443 (5th Cir. 2023), rev’d 602 U.S. 680 (2024) – Cited by Nyandoro to argue for a shorter delay period and to bolster his Second-Amendment theory. The panel explained that Rahimi did not reset the clock and, in any event, Bruen already supplied the basis for raising a constitutional argument.
• United States v. Barnes, 953 F.3d 383 (5th Cir. 2020) – Quoted for the rule that a plea knowing and voluntary “in the light of then-applicable law” is not undone by later doctrinal change.
• United States v. Miles, 2024 WL 1827825 (5th Cir. 2024) – Confirms that defendants may waive Second-Amendment challenges in plea agreements.
• United States v. Johnson, 194 F.3d 657 (5th Cir. 1999) – Distinguishes between statutory-element sufficiency claims (non-waivable) and constitutional authority claims (waivable).
• United States v. Jones, 2024 WL 3811760 (5th Cir. 2024) (unpublished) – Nearly identical factual scenario; cited as persuasive authority to dispose of waiver arguments.

3.2 Legal Reasoning

3.2.1 Plea Withdrawal

The panel reviewed the district court’s Carr calculus under the deferential abuse-of-discretion standard.

• Delay (factor 3): Measured at nine months (from Bruen), deemed “decisive” against withdrawal.
• Government prejudice (factor 2): Re-assembling witnesses and evidence after a long pause constituted cognizable prejudice.
• Knowing & voluntary plea (factor 6): The magistrate’s thorough Rule 11 colloquy and written acknowledgments defeated any suggestion of involuntariness.
• Remaining factors: While the first factor (assertion of innocence) favored Nyandoro, and the fourth (court inconvenience) was nominally neutral, the aggregate balance strongly favored the Government.

3.2.2 Appeal Waiver and the “Factual-Insufficiency” Exception

Nyandoro tried to shoehorn his constitutional attack into the waiver-surviving “factual-insufficiency” category. The court rejected the attempt, drawing a crisp doctrinal line:

Because Nyandoro’s opening brief never actually contended that his daily marijuana use, gun possession, and interstate nexus failed to satisfy § 922(g)(3)’s text, the exception was unavailable.

3.2.3 Rejection of Auxiliary Avoidance Theories

• Statutory-maximum exception: A sentence does not exceed the maximum merely because the statute is allegedly unconstitutional.
• Miscarriage-of-justice exception: Fifth Circuit again declined to recognize such an equitable override of an otherwise valid waiver.
• Rule 11 “nature of charge” error: The court clarified that Rule 11 requires advising on elements, not on speculative constitutional infirmities.

3.3 Impact of the Judgment

Although the Fifth Circuit did not create a brand-new legal test, it crystallizes and reinforces several practical teachings for federal criminal practice:

1. Scope of Appeal Waivers. After Nyandoro, prosecutors can draft broad waivers with greater confidence that Second-Amendment and vagueness challenges will be deemed waived.
2. Limited Escape Hatch. The “factual-insufficiency” exception remains narrow. Defense counsel must specifically argue that the client’s factual resume omits an element; constitutional arguments alone will not suffice.
3. Timing Matters. Post-Bruen defendants who wish to exploit the decision must act quickly; delays of even a few months weigh heavily against withdrawal.
4. Strategic Plea-Bargaining. Defendants assume the risk of doctrinal shifts. The opinion is a cautionary tale: an “unusually generous” diversion bargain can evaporate, and the accompanying waiver may shut the courthouse door to later constitutional developments.
5. Second-Amendment Litigation. The panel sidestepped deciding § 922(g)(3)’s constitutionality on the merits. That debate persists, but litigants will need an unwaived procedural posture (trial conviction or conditional plea) to reach it.

4. Complex Concepts Simplified

• Appeal Waiver: A contractual clause in a plea agreement where the defendant gives up some or all rights to challenge the conviction or sentence on appeal.
• Factual-Insufficiency Exception: A narrow doctrine allowing an appellate court to review whether the stipulated facts actually meet the statutory elements, even when an appeal waiver exists.
• Knowing and Voluntary Plea: Rule 11 requires that the defendant understand the nature of the charge, possible penalties, and rights waived. Subsequent changes in law do not retroactively undo this understanding.
• Carr Factors: A seven-part test (assertion of innocence, government prejudice, delay, court inconvenience, counsel availability, voluntariness, and judicial resources) guiding courts in deciding pre-sentence plea-withdrawal motions.
• Second-Amendment “History & Tradition” Test: Introduced in Bruen, it asks whether modern firearm regulations are consistent with historical analogues from the founding era—not directly at issue here because of the waiver.

5. Conclusion

United States v. Nyandoro is a forceful reminder that, in the Fifth Circuit, appeal waivers are enforced according to their plain terms. Constitutional challenges—even those riding the momentum of Supreme Court cases like Bruen—are fully waivable. Only a genuine claim that “the facts fail to meet the elements” survives. The opinion sharpens the doctrinal boundary between statutory sufficiency and constitutional infirmity and will likely discourage late-stage plea withdrawals predicated on evolving Second-Amendment jurisprudence.

Practitioners should draw three concrete lessons:

1. Draft and scrutinize appeal waivers with precision; they are potent and usually iron-clad.
2. Raise constitutional objections before pleading, or via a conditional plea, if preserving appellate review is important.
3. Act swiftly—delays in light of new precedent significantly erode the “fair and just reason” needed to undo a plea.

The Fifth Circuit’s message is plain: after a knowing and voluntary waiver, “waivers mean waivers.”