United States v. Nyandoro

United States Court of Appeals for the Fifth Circuit ____________

No. 23-10579

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United States of America, Plaintiff—Appellee,

versus

Kenleone Joe Nyandoro, Defendant—Appellant.

______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 4:22-CR-117-1

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Before Stewart, Clement, and Willett, Circuit Judges. Don R. Willett, Circuit Judge:

Kenleone Joe Nyandoro pleaded guilty to possessing a firearm while unlawfully using a controlled substance. In return, he secured an unusually generous plea deal: the government permitted him to enter a rehabilitation program and agreed to drop the charges if he successfully completed it. But Nyandoro failed to hold up his end of the bargain. He was removed from the program after being arrested for fleeing from police. With dismissal off the table, the case moved forward to sentencing.

United States Court of Appeals

Fifth Circuit

FILED

June 19, 2025 Lyle W. Cayce Clerk

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But less than two months before sentencing, Nyandoro moved to withdraw the guilty plea he had entered nearly ten months earlier. He argued that the statute he pleaded guilty under is unconstitutional. The district court denied the motion. On appeal, Nyandoro raises two arguments. First, he contends the district court should have permitted him to withdraw the plea. Second, he claims the court should never have accepted it in the first place. Neither argument holds up. The district court carefully considered the factors governing plea withdrawal and did not abuse its discretion. And the second argument runs headlong into Nyandoro's appeal waiver. Accordingly, we AFFIRM the district court's judgment.

I

In July 2021, police officers responded to reports of gunfire.¹Upon arrival, they heard gunshots and followed the sound into a "heavily wooded area" where they encountered Nyandoro and two other men. Nyandoro fled but was quickly apprehended. The officers spotted the butt of a Smith & Wesson pistol protruding from his jacket pocket—a firearm later confirmed to have been stolen from the police department.

The next day, officers executed a search warrant at Nyandoro's residence. Inside, they found a small amount of marijuana, drug paraphernalia, and an empty Kel Tec firearm box in the bedroom. They also discovered a Smith & Wesson M&P 15-22 rifle under the mattress and a Franklin Armory rifle in the closet, along with several 30-round magazines. _____________________

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A search of Nyandoro's vehicle turned up four small baggies of marijuana, and officers recovered another baggie from the driveway. During a post-arrest interview, Nyandoro admitted to discharging a firearm in the woods. As for the rifle found in his room, he initially claimed to have purchased it at a gun show, but later recanted and refused to say where he had obtained it. He denied distributing marijuana but admitted using it daily.

Nyandoro was later arrested and charged with possessing a firearm as an unlawful user of a controlled substance, in violation of 18 U.S.C. § 922(g)(3). His initial drug test was positive for marijuana, though subsequent tests came back negative. Still, within a month, he was diagnosed with a severe cannabis-use disorder.

On May 31, 2022, Nyandoro filed a "factual resume" stipulating to the following:

In or about July 2021, in the Fort Worth Division of the Northern District of Texas, the defendant, Kenleone Joe Nyandoro, being an unlawful user of a controlled substance— that is marijuana—did knowingly possess in and affecting interstate commerce a Smith and Wesson 9mm bearing serial number FWN5039.

More specifically, on July 202 [sic], 2021, officers detained Kenleone Joe Nyandoro was [sic] in possession of a Smith and Wesson 9mm bearing serial number FWN5039, bearing serial number 311-29882 [sic]. At the time of his possession of this firearm, Nyandoro was a consistent user of marijuana.

Nyandoro admits that these firearms each traveled in interstate commerce.

Alongside the factual resume, Nyandoro entered into a plea agreement. In exchange for his guilty plea, the government allowed him to participate in the Sentencing to Equip People for Success ("STEPS")

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program. If Nyandoro successfully completed the program within 24 months, the government would join a motion to withdraw his guilty plea and dismiss all charges, and the district court agreed to grant that request. But if Nyandoro failed to complete the program—either by failing out or voluntarily withdrawing—he would forfeit the opportunity to withdraw his plea, and the case would proceed to sentencing. Nyandoro also acknowledged that his plea was "freely and voluntarily made."

As part of the plea agreement, Nyandoro also waived his right to appeal "the conviction, sentence, fine and order of restitution or forfeiture,"

subject to certain exceptions. Specifically, he reserved the right "(a) to bring a direct appeal of (i) a sentence exceeding the statutory maximum punishment, or (ii) an arithmetic error at sentencing, (b) to challenge the voluntariness of the defendant's plea of guilty or this waiver, and (c) to bring a claim of ineffective assistance of counsel."

A magistrate judge held a notice and consent hearing, during which Nyandoro confirmed that he understood the nature and essential elements of the offense and admitted to committing it. The magistrate judge further confirmed that Nyandoro entered the plea agreement voluntarily and without coercion; that he understood he would not be permitted to withdraw his plea if he failed to complete the STEPS program; and that he had fully reviewed, discussed with counsel, and voluntarily accepted the plea agreement's appeal waiver. Nyandoro also affirmed that the factual resume was accurate and that he understood its contents. Based on these findings and assurances, the magistrate judge concluded that Nyandoro was "fully competent and capable of entering an informed plea and that his plea of guilty to the charge or charges against him [wa]s a knowing and a voluntary plea, supported by an independent basis in fact, containing each of the essential elements of the offenses charged." The magistrate judge recommended that the district court accept the plea, and the district court did so.

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For six months, Nyandoro participated in the STEPS program. But in December 2022, he was pulled over by police officers who detected the scent of air freshener coming from his vehicle and noticed a backpack in the back seat. Aware that air freshener is often used to mask the scent of drugs, the officers asked Nyandoro to step out of the vehicle. He became "visibly nervous," asked whether he was under arrest, and began questioning why he was being asked to exit. Then he fled—reaching speeds exceeding 100 miles per hour. Officers later arrested him at his home and found a baggie containing unspecified drug residue in his car.²Nyandoro was arrested and charged with evading arrest in a vehicle.

Following this incident, the government moved to revoke Nyandoro's pretrial release and remove him from the STEPS program. The magistrate judge granted the motion, finding that Nyandoro "ha[d] not satisfactorily completed the requirements of the STEPS program," and returned the case to the district court for sentencing.

More than two months later—after the PSR had been filed and sentencing scheduled—Nyandoro moved to withdraw his guilty plea. He argued that withdrawal was warranted because § 922(g)(3) is unconstitutional under the Second and Fifth Amendments. The district court considered the motion at sentencing. It correctly recognized that whether to permit withdrawal required weighing the seven factors set out in United States v. Carr.³ After conducting that analysis, the court found the factors favored the government and denied Nyandoro's _____________________

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motion. It then sentenced him to 51 months' imprisonment and three years of supervised release. Nyandoro appealed.

II

Nyandoro contends the district court erred in two respects: (1) by denying his motion to withdraw his guilty plea, and alternatively, (2) by accepting the plea in the first place—arguing that the factual basis was insufficient and that the court misadvised him on the nature of the offense.

A

Nyandoro first argues that the district court erred in denying his motion to withdraw his guilty plea.

He filed that motion nearly ten months after initially pleading guilty— by which time he had already spent six months in the STEPS program, failed out, had sentencing scheduled, and reviewed the Probation Office's completed PSR. Still, Nyandoro argued that withdrawal was proper because, in his view, § 922(g)(3) is unconstitutional—both facially and as applied— under two theories: that it is impermissibly vague under the Due Process Clause, and that it unlawfully restricts firearm possession under the Second Amendment.⁴

"[T]here is no absolute right to withdraw a guilty plea before the imposition of sentence," and the decision whether to allow withdrawal "is within the sound discretion of the trial court."⁵District courts are vested _____________________

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with "broad discretion" in resolving such motions⁶and may grant relief only if the defendant demonstrates a "fair and just reason" for withdrawing his plea.⁷To that end, courts apply a totality-of-circumstances analysis guided by seven non-dispositive factors:⁸"(1) whether the defendant has asserted his innocence; (2) whether the government would suffer prejudice if the withdrawal motion were granted; (3) whether the defendant delayed in filing his withdrawal motion; (4) whether the withdrawal would substantially inconvenience the court; (5) whether close assistance of counsel was available to the defendant; (6) whether the original plea was knowing and voluntary; and (7) whether withdrawal would waste judicial resources."⁹ The district court found that the first factor (Nyandoro's assertion of innocence) favored him, and that the fourth factor (inconvenience to the court) was neutral. But it determined that the remaining factors weighed against withdrawal and denied the motion. Nyandoro challenges those conclusions but falls well short of showing that the district court abused its discretion.¹⁰

We start with the second factor: whether the government would suffer prejudice from a plea withdrawal. The government argued that it would— explaining that withdrawal would require it to "reinitiate the case from the beginning, witnesses, agents, everything." Nyandoro dismisses that as

"generalized 'prejudice'" inherent in any plea withdrawal. But he overlooks _____________________

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two critical points. First, he waited nearly ten months before seeking withdrawal—an extended delay that could exacerbate the government's burden in prosecuting this case. Second, he offers no meaningful rebuttal to the government's assertion of prejudice.¹¹In any event, even if Nyandoro were correct that the government faces no prejudice, "the second factor is not such a critical factor to the overall Carr analysis that would alone merit withdrawal."¹²

We next turn to the third factor: whether Nyandoro delayed in filing his withdrawal motion. The district court measured Nyandoro's delay from the Supreme Court's decision in New York State Rifle & Pistol Association v. Bruen,¹³making it roughly nine months¹⁴—a length of time that weighs decisively in the government's favor under our precedent.¹⁵Nyandoro contends the court miscalculated. He argues the clock should have started not at Bruen, but at our later decision in United States v. Rahimi¹⁶—which would reduce the delay to less than two months. On Nyandoro's account, it _____________________

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was Rahimi's "analytical shift" that first made his constitutional challenge viable. But Nyandoro cites no authority for the proposition that, when a withdrawal motion rests on intervening precedent, delay should be measured from the date of that precedent rather than from the date the plea was entered.

In any event, Nyandoro's argument fails on its own terms. At sentencing, he placed at least as much emphasis on Bruen as on Rahimi. He argued that his motion to withdraw "is based primarily on the rulings in Bruen, and most recently, Rahimi." He then asserted that § 922(g)(3) is unconstitutional "[u]nder the Bruen framework," and described Bruen as the moment "when this case was really picking up steam." Given Nyandoro's own framing of the constitutional landscape, the district court did not abuse its discretion in measuring delay from Bruen rather than Rahimi. Next, Nyandoro contends that factors four and seven favor him. He argues that the district court would benefit—and that judicial resources would be conserved—if he were permitted to withdraw his plea, because his

"meritorious" constitutional challenges might result in dismissal of the indictment. But this argument rests more on speculation than substance. Whether withdrawal would ultimately conserve judicial resources is, at best, uncertain. And when it comes to judicial efficiency, the district court's judgment is owed particular deference, as it "is in the best position to know the effect that the withdrawal had on its resources."¹⁷Nyandoro's theory that dismissal would follow in lieu of trial is wishful speculation.¹⁸It certainly does not demonstrate that the district court abused its discretion in _____________________

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concluding that withdrawal would waste—not preserve—judicial resources. In any event, even assuming the court's finding on inconvenience (factor four) was neutral, the fact remains that the court had already reviewed the PSR and prepared for sentencing.¹⁹That procedural posture makes the inconvenience far from negligible.

Finally, Nyandoro contests the district court's finding on factor six:

whether his plea was knowing and voluntary. But he concedes that "at the time," his plea was both knowing and voluntary. He now argues that a subsequent change in the law renders his plea retroactively unknowing, reasoning that a plea "a fortiori cannot have been knowingly and voluntarily made." But Nyandoro provides no authority for that proposition, which is squarely foreclosed by our precedent. As we have long held, "a voluntary plea of guilty intelligently made in the light of the then-applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise."²⁰A knowing and voluntary plea includes the inherent risk that the law may evolve unfavorably—and that is especially true when a defendant, like Nyandoro, agrees to an appeal waiver. It is part of the plea-bargain calculus that the defendant "assumed the risk that he would be denied the benefit of future legal developments."²¹The fact that the legal _____________________

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landscape may have shifted after Nyandoro entered his guilty plea does not undo the knowing and voluntary nature of his plea at the time it was made. In sum, Nyandoro has not carried his burden to show that the district court abused its discretion in weighing the Carr factors and denying his motion to withdraw his plea.

B

Nyandoro's fallback argument is that the district court erred in accepting his guilty plea at the outset. Under Federal Rule of Criminal Procedure 11, a court may not accept a guilty plea unless it determines that the plea rests on a sufficient factual basis and that the defendant understands the nature of the charge.²²Nyandoro contends that because § 922(g)(3) is unconstitutional—both facially and as applied to him—his conviction lacked a lawful foundation and thus failed to meet Rule 11's requirements. The government counters that this challenge is foreclosed by Nyandoro's appeal waiver. We agree.

"The right to appeal a conviction and sentence is a statutory right, not a constitutional one, and a defendant may waive it as part of a plea agreement."²³In assessing the validity of such waivers, "we conduct a two- step inquiry: (1) whether the waiver was knowing and voluntary and (2) _____________________

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whether the waiver applies to the circumstances at hand, based on the plain language of the agreement."²⁴

Nyandoro advances several reasons why his appeal waiver should not bar his challenge. He contends that: (1) the waiver doesn't extend to factual- insufficiency claims; (2) his plea was not knowing and voluntary; (3) the waiver's language doesn't encompass this particular challenge; (4) the waiver is inapplicable because his sentence exceeds the statutory maximum; and (5) enforcing the waiver would result in a miscarriage of justice. We recently confronted—and rejected—these same arguments in United States v. Jones.²⁵There, the defendant also pleaded guilty to violating § 922(g)(3), signed an identical appeal waiver, challenged the district court's acceptance of his guilty plea, and advanced the very same waiver-based objections that Nyandoro presses here. In rejecting those arguments, we held that the defendant "unambiguously waived in his plea agreement his right to appeal."²⁶While Jones is unpublished and thus not binding, it offers instructive guidance.²⁷And as in Jones, we conclude that Nyandoro's appeal waiver forecloses his challenge to the district court's acceptance of his guilty plea.

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Nyandoro's first—and strongest—argument for sidestepping his appeal waiver is that his claim fits within the so-called "factual insufficiency"

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exception. We have "repeatedly held that 'even if there is an unconditional plea of guilty or a waiver of appeal provision in a plea agreement, this Court has the power to review if the factual basis for the plea fails to establish an element of the offense which the defendant pled guilty to appeal waivers in that context.'"²⁸This exception does not render an appeal waiver void whenever a defendant disputes the factual basis of his conviction. Rather, it is a narrow carveout, crafted "to protect a defendant who may plead guilty with an understanding of the nature of the charge, but without realizing that his conduct does not actually fall within the definition of the charged crime."²⁹

In keeping with its narrow purpose, the factual-insufficiency exception to an appeal waiver applies only when a defendant claims that his admitted conduct fails to satisfy the statutory elements of the offense.³⁰ Courts assessing such claims must "compare the elements of the crime for which [the defendant] was convicted to the conduct he admitted in the factual basis."³¹Take United States v. Ortiz, for instance. There, we distinguished between a true factual-insufficiency claim—where the admitted facts fail to establish the crime's elements—and a claim that the _____________________

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facts, while satisfying the elements, also support an affirmative defense.³²We held that although a successful self-defense argument might warrant reversal, it does not trigger the factual-insufficiency exception because it does not call into question whether the statutory elements were met.³³In short, the exception targets statutory failure—not affirmative justification. It applies only when, accepting the factual basis as true, the admitted conduct "fails to establish the essential elements of the crime of conviction."³⁴That is how we have consistently cabined and applied the factual-insufficiency exception.³⁵ Because the factual-insufficiency inquiry is statutory in nature, a constitutional challenge to a statute—like an affirmative defense—is not a factual-insufficiency claim. A defendant arguing that the statute of conviction is unconstitutional does not contend that the statute fails to reach his conduct or that the elements of the offense were unmet. To the contrary, such a challenge presumes that the statute does apply to the defendant's conduct; the argument is simply that Congress may not constitutionally proscribe that _____________________

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conduct. If the defendant's conduct did not fall within the statute's reach, there would be no need to test the statute's constitutional limits.³⁶ Indeed, a constitutional challenge cannot fall within the factual- insufficiency exception because, unlike factual-insufficiency claims, constitutional challenges can be waived. We made that clear just last year in United States v. Miles. There, the defendant sought to invalidate his felon-in- possession conviction under § 922(g)(1) by arguing that the statute was unconstitutional as applied to short-barreled rifles.³⁷He claimed that his appeal waiver was ineffective because a defendant cannot waive the right to challenge the constitutionality of his statute of conviction. We disagreed, holding that this argument was "foreclosed" and that the defendant had

"waived the right to press his Second Amendment claim on appeal."³⁸Miles thus confirms what logic already suggests: because constitutional challenges are waivable, they are categorically distinct from factual-insufficiency claims. This distinction was underscored in United States v. Johnson.³⁹There, the defendant pleaded guilty to arson under 18 U.S.C. § 844(i) but argued on appeal that his conduct did not substantially affect interstate commerce, and thus there was an insufficient basis for his conviction.⁴⁰We explained that the interstate-commerce requirement served dual roles: it functioned both as _____________________

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a non-jurisdictional statutory element of the offense and as a basis for Congress's constitutional authority to enact the statute.⁴¹We held that by entering an unconditional guilty plea, the defendant had waived any as- applied constitutional challenge to the statute based on lack of congressional authority.⁴²However, we also made clear that the defendant could still pursue his argument "as a challenge to the sufficiency of the factual basis for the interstate commerce element of the arson crime to which he pleaded guilty."⁴³Johnson thus illustrates the line that separates waivable constitutional challenges from non-waivable factual-insufficiency claims. A defendant may still argue that his conduct does not satisfy the statutory elements of the offense. But he may not—having pleaded guilty—invoke a constitutional defense on the ground that his conduct was beyond Congress's power to criminalize.

Applying those principles here, Nyandoro cannot invoke the factual- insufficiency exception because he does not contest whether his conduct satisfies the statutory elements of § 922(g)(3).⁴⁴A defendant cannot simply recite the factual-insufficiency "boilerplate as an appeal-authorizing escape hatch."⁴⁵And while Nyandoro attempts to cast his claim in factual- insufficiency terms, his briefing makes clear that his challenge rests entirely _____________________

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on the constitutionality of § 922(g)(3)—not on whether his conduct violated the statute.

Indeed, Nyandoro's own words confirm the nature of his claim. In his opening brief, he argues that the district court erred in accepting his guilty plea "because of three constitutional infirmities latent in § 922(g)(3)."⁴⁶He goes on to explain that "the factual basis failed to establish a constitutionally valid offense." And he acknowledges that his "claim of insufficiency derives from his constitutional claims."

To be sure, Nyandoro discusses the statutory text of § 922(g)(3) and various judicial interpretations of its elements. But he does so only to support his argument that the statute is unconstitutionally vague. For instance, he notes that the statute never defines "unlawful user of . . . any controlled substance," rendering it "impossible for ordinary persons to understand when the statute might apply to their level of drug use." But critically, he never argues that his own conduct fails to meet that statutory standard—only that the standard itself is unconstitutionally vague.⁴⁷

Indeed, it was only after the government highlighted Nyandoro's failure to raise a true factual-insufficiency argument in his opening brief that _____________________

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he addressed statutory sufficiency at all.⁴⁸In his reply brief—for the first time—Nyandoro discusses our prior interpretations of § 922(g)(3) and suggests that the statutory definition of "unlawful user" should be narrowly construed to mean present use or intoxication, in order to align with current Second Amendment precedent. Even if that belated argument could qualify as a proper factual-insufficiency claim, it arrives too late. "[A]n argument cannot be raised for the first time in a reply brief."⁴⁹ Nyandoro disputes the characterization that his opening brief presents a constitutional challenge. He contends that he never explicitly argued that his conviction was unconstitutional—only that the district court erred in accepting his plea. Even if that distinction is technically accurate, it is legally meaningless. By Nyandoro's own account, the reason the district court erred in accepting his guilty plea is because § 922(g)(3) is unconstitutional. He expressly states that his "claim of insufficiency derives from his constitutional claims." Were we to accept Nyandoro's theory, a defendant could always circumvent an appeal waiver by reframing a constitutional challenge as an attack on the factual basis for the plea. Such a transparent workaround would gut our settled precedent recognizing that constitutional challenges can be waived.⁵⁰A defendant cannot convert an otherwise barred constitutional claim merely by repackaging it as a plea- defect argument. To invoke the factual-insufficiency exception, a defendant _____________________

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must assert that his conduct fails to satisfy the elements of the statute—not that the statute is unconstitutional.

Because factual-insufficiency claims are limited to statutory challenges, and because Nyandoro raised no such challenge in his opening brief, the appeal-waiver exception cannot salvage his appeal.

2

Having dispensed with Nyandoro's factual-insufficiency argument, we turn to his remaining arguments for avoiding the appeal waiver—none of which has merit.

First, Nyandoro contends that his plea was not knowing and voluntary. "A waiver is both knowing and voluntary if the defendant indicates that he read and understood the agreement and the agreement contains an explicit, unambiguous waiver of appeal."⁵¹Nyandoro does not dispute—nor could he—that he knowingly and freely pleaded guilty after being fully advised by the magistrate judge as to the nature and essential elements of the offense. Instead, he argues that his plea was involuntary because the district court failed to alert him to the statute's purported unconstitutionality.⁵²But "a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later _____________________

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judicial decisions indicate that the plea rested on a faulty premise."⁵³By entering into a plea agreement with an appeal waiver, Nyandoro "assumed the risk that he would be denied the benefit of future legal developments."⁵⁴ To the extent Nyandoro is arguing that he was misinformed because of an alleged factual insufficiency, that claim is simply a repackaged version of his earlier argument—an argument we have already rejected.⁵⁵In short, there is no serious question that Nyandoro's plea was both knowing and voluntary.⁵⁶ Second, Nyandoro invokes United States v. White,⁵⁷arguing that the language of his plea agreement does not reflect an intelligent waiver of his right to appeal. But White is inapposite several times over. To start, the appeal-waiver language in White differs materially from that in Nyandoro's plea agreement.⁵⁸Moreover, the defendant in White challenged the sufficiency of the indictment on its face—a jurisdictional defect not present here.⁵⁹And most significantly, the defendant in White expressly preserved _____________________

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his challenge in a pretrial motion to dismiss.⁶⁰White offers Nyandoro no support.⁶¹

Third, Nyandoro argues that his claim survives the appeal waiver under the exception for sentences that exceed the statutory maximum. He contends that because his conviction lacked a sufficient basis, any sentence imposed necessarily exceeds the statutory ceiling. But that logic would nullify appeal waivers entirely, allowing any defendant to bypass one simply by challenging the validity of his conviction. That is not the law.⁶²The statutory- maximum exception applies only when a sentence exceeds "the upper limit of punishment that Congress has legislatively specified for violations of a statute."⁶³Nyandoro makes no such allegation here.

Fourth and finally, Nyandoro urges us to recognize a "miscarriage of justice" exception to his appeal waiver. As Nyandoro concedes, we have never adopted such an exception.⁶⁴He nonetheless argues for its application here, citing the importance of his constitutional challenge. But as already noted, we recently reaffirmed that Second Amendment challenges to criminal statutes—the very claim Nyandoro asserts—can be waived in a plea agreement.⁶⁵Whether or not we should adopt a miscarriage-of-justice _____________________

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exception,⁶⁶applying one in this case would run afoul of our controlling precedent.

III

In sum, neither of Nyandoro's arguments succeeds. He has not shown that the district court abused its discretion in denying his motion to withdraw his plea. And his contention that the district court should never have accepted the plea—because of the alleged unconstitutionality of § 922(g)(3)—is barred by his knowing and voluntary appeal waiver. The judgment of the district court is AFFIRMED.

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