Petition for Writ of Certiorari — Kenleone Joe Nyandoro, Petitioner v. United States

Supreme Court briefNov 20, 2025

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No. ______________

In the

Supreme Court of the United States

___________

Kenleone Joe Nyandoro,

Petitioner,

United States of America,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

Jason D. Hawkins

Federal Public Defender

Maria Gabriela Vega

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

525 South Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

gabriela_vega@fd.org

QUESTIONS PRESENTED

Whether the only permissible exceptions to a general appeal waiver are for

claims of ineffective assistance of counsel or that the sentence exceeds the statutory

maximum.

Whether an appeal waiver applies when the sentencing judge advised the

defendant that he has a right to appeal and the government did not object.

Whether 18 U.S.C. § 922(g)(3), which prohibits possession of firearms by a

person who “is an unlawful user of or addicted to any controlled substance,” violates

the Second Amendment as applied to an individual who did not admit that he was

intoxicated at the time of the firearm possession when he pleaded guilty.

Whether 18 U.S.C. § 922(g)(3)’s prohibition on firearm possession by “an

unlawful user” of “any controlled substance” is unconstitutionally vague or should be

construed in the narrowest manner possible to avoid unconstitutional applications.

Whether a claim of legal innocence premised on a post-plea but pre-sentenc-

ing change in precedent constitutes a “fair and just reason” to allow withdrawal of a

guilty plea under Federal Rule of Criminal Procedure 11(d)(2)(B).

Whether Congress may criminalize intrastate firearm possession based

solely on the firearm crossing state lines at some point before the defendant came to

possess it.

PARTIES TO THE PROCEEDING

Petitioner is Kenleone Joe Nyandoro, who was the Defendant-Appellant in the

court below. Respondent, the United States of America, was the Plaintiff-Appellee in

the court below.

RELATED PROCEEDINGS

•

United States v. Nyandoro, No. 4:22-CR-00117-O, U.S. District Court for the

Northern District of Texas. Judgment entered on May 26, 2023.

•

United States v. Nyandoro, No. 23-10579, U.S. Court of Appeals for the Fifth

Circuit. Judgment entered on June 19, 2025 and revised on August 4, 2025.

Rehearing denied on August 29, 2025.

TABLE OF CONTENTS

Questions Presented ....................................................................................................... i

Parties to the Proceeding .............................................................................................. ii

Related Proceedings....................................................................................................... ii

Table of Contents .......................................................................................................... iii

Appendices ..................................................................................................................... v

Table of Authorities ...................................................................................................... vi

Petition for a Writ of Certiorari .................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdiction .................................................................................................................... 1

Provisions Involved ........................................................................................................ 1

Statement of the Case ................................................................................................... 2

Factual Background ...................................................................................... 2

II.

Proceedings in District Court ........................................................................ 3

III.

Proceedings on Appeal ................................................................................. 10

Reasons For Granting This Petition ........................................................................... 12

The Court should hold the instant petition until it decides Issues 1, 2 and

3, on which it recently granted certiorari review. ...................................... 12

The Court granted review of Issues 1 and 2 in Hunter v. United

States, No. 24-1063 (U.S. Oct. 10, 2025). ......................................... 13

The Court granted review of Issue 3 in United States v. Hemani,

No. 24-1234 (U.S. Oct. 20, 2025). ..................................................... 17

II.

This Court should determine whether 18 U.S.C. § 922(g)(3) is void for

vagueness; or alternatively, construe “unlawful user” as narrowly as

possible to avoid constitutional concerns. ................................................... 19

III.

The Circuits are split on whether or when legal innocence constitutes a

“fair and just reason” for withdrawing a guilty plea. ................................. 23

iii

IV.

This Court should delineate the boundaries of federal authority under the

Commerce Clause in the firearm context. .................................................. 27

Federal appellate courts differ on the relationship between

Scarborough and Lopez. .................................................................... 30

An unchecked Commerce power would significantly expand

Congress’s reach into state affairs. .................................................. 32

Conclusion .................................................................................................................... 33

APPENDICES

Appendix A Opinion, United States v. Nyandoro, No. 23-10579 (5th Cir. August 4,

2025)........................................................................................................ a1

Appendix B Order Denying Rehearing, United States v. Nyandoro, No. 23-10579

(5th Cir. August 29, 2025).................................................................... a23

Appendix C Judgment and Sentence, United States v. Nyandoro, No. 4:22-CR00117-O (N.D. Tex. May 26, 2023) ...................................................... a24

TABLE OF AUTHORITIES

Page(s)

Federal Cases

A.L.A. Schechter Poultry Corp. v. United States,

295 U.S. 495 (1935) ................................................................................................ 32

Alderman v. United States,

562 U.S. 1163 (2011) ....................................................................................... 30, 33

Bousley v. United States,

523 U.S. 614 (1998) .................................................................................................. 8

Hunter v. United States,

No. 24-1063 (U.S. Oct. 10, 2025) ............................................................................ 13

Johnson v. United States,

576 U.S. 591 (2015) .......................................................................................... 19, 23

Jones v. United States,

529 U.S. 848 (2000) ................................................................................................ 23

Kolender v. Lawson,

461 U.S. 352 (1983) ................................................................................................ 19

Lawrence on Behalf of Lawrence v. Chater,

516 U.S. 163 (1996) ................................................................................................ 12

MedImmune, Inc. v. Genentech, Inc.,

549 U.S. 118 (2007) ................................................................................................ 16

N.L.R.B. v. Jones & Laughlin Steel Corp.,

301 U.S. 1 (1937) .................................................................................................... 33

Nat’l Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012) ................................................................................................ 33

New York State Rifle & Pistol Association, Inc. v. Bruen,

597 U.S. 1 (2022) ................................................................................................ 6, 20

Scarborough v. United States,

431 U.S. 563 (1977) ................................................................................................ 27

United States v. Abreu,

964 F.2d 16 (D.C. Cir. 1992) .................................................................................. 25

United States v. Augustin,

376 F.3d 135 (3d Cir. 2004) .................................................................................... 22

United States v. Baez,

87 F.3d 805 (6th Cir. 1996) .................................................................................... 25

United States v. Barnes,

953 F.3d 383 (5th Cir. 2020) ...................................................................... 13, 14, 15

United States v. Bishop,

66 F.3d 569 (3d Cir. 1995) ...................................................................................... 31

United States v. Bowens,

938 F.3d 790 (6th Cir. 2019) .................................................................................. 22

United States v. Buckles,

843 F.2d 469 (11th Cir. 1988) ................................................................................ 24

United States v. Carnes,

22 F.4th 743 (8th Cir. 2022) ................................................................................... 22

United States v. Carpenter,

554 F. App’x 477 (6th Cir. 2014) ............................................................................ 25

United States v. Carr,

740 F.2d 339 (5th Cir. 1984) .................................................................................... 8

United States v. Chesney,

86 F.3d 564 (6th Cir. 1996) .............................................................................. 31, 32

United States v. Clanton,

515 F. App’x 826 (11th Cir. 2013) .................................................................... 22, 23

United States v. Connelly,

117 F.4th 269 (5th Cir. 2024) ..................................................................... 17, 18, 20

United States v. Connelly,

668 F. Supp. 3d 662 (W.D. Tex. 2023) ..................................................................... 9

United States v. Cortes,

299 F.3d 1030 (9th Cir. 2002) ................................................................................ 31

United States v. Crump,

120 F.3d 462 (4th Cir. 1997) .................................................................................. 31

United States v. Daniels,

124 F.4th 967 (5th Cir. 2025) ............................................................... 17, 20, 21, 23

vii

United States v. Daniels,

144 S. Ct. 2707 (2024) ............................................................................................ 17

United States v. Daniels,

77 F.4th 337 (5th Cir. 2023) ................................................................................... 17

United States v. Davis,

588 U.S. 445 (2019) ................................................................................................ 23

United States v. Diaz,

116 F.4th 458 (5th Cir. 2024) ................................................................................. 20

United States v. Dorris,

236 F.3d 582 (10th Cir. 2000) ................................................................................ 31

United States v. Edmonds,

348 F.3d 950 (11th Cir. 2003) ................................................................................ 22

United States v. Emerson,

270 F.3d 203 (5th Cir.2001) ................................................................................... 20

United States v. Garcia-Nunez,

71 F.4th 1 (1st Cir. 2023) ....................................................................................... 24

United States v. Gateward,

84 F.3d 670 (3d Cir. 1996) ...................................................................................... 31

United States v. Gonzalez,

259 F.3d 355 (5th Cir. 2001) .................................................................................. 16

United States v. Hanna,

55 F.3d 1456 (9th Cir. 1995) .................................................................................. 31

United States v. Hardy,

838 F. App’x 68 (5th Cir. 2020) .............................................................................. 26

United States v. Harvey,

829 F.3d 586 (8th Cir. 2016) .................................................................................. 24

United States v. Hemani,

No. 24-1234 (U.S. Oct. 20, 2025) ...................................................................... 13, 17

United States v. Hemani,

No. 24-40137, 2025 WL 354982 (5th Cir. Jan. 31, 2025) ...................................... 18

viii

United States v. Hemani,

No. 4:23-CR-18-ALM-KPJ-1, 2024 WL 5375143 (E.D. Tex. Feb. 1,

2024)........................................................................................................................ 17

United States v. Hodges,

259 F.3d 655 (7th Cir. 2001) .................................................................................. 25

United States v. Hunter,

No. 24-20211, 2024 WL 5003582 (5th Cir. Dec. 6, 2024) ................................ 13, 16

United States v. James,

928 F.3d 247 (3d Cir. 2019) .............................................................................. 25, 26

United States v. Johnson,

42 F.4th 743 (7th Cir. 2022) ................................................................................... 27

United States v. Kirk,

105 F.3d 997 (5th Cir. 1997) ................................................................................. 30

United States v. Kuban,

94 F.3d 971 (5th Cir. 1996) ................................................................................... 30

United States v. Lemons,

302 F.3d 769 (7th Cir. 2002) .................................................................................. 31

United States v. Lopez,

514 U.S. 549 (1995) .............................................................................. 28, 29, 32, 33

United States v. Lord,

915 F.3d 1009 (5th Cir. 2019) ................................................................................ 26

United States v. Marceleno,

819 F.3d 1267 (10th Cir. 2016) .............................................................................. 25

United States v. Mays,

593 F.3d 603 (7th Cir. 2010) .................................................................................. 27

United States v. McCowan,

469 F.3d 386 (5th Cir. 2006) ............................................................................ 19, 21

United States v. McKnight,

570 F.3d 641 (5th Cir. 2009) .................................................................................. 26

United States v. McKoy,

645 F.2d 1037 (D.C. Cir. 1981)............................................................................... 25

United States v. Meza-Jacquez,

671 F. App’x 340 (5th Cir. 2016) ............................................................................ 26

United States v. Miles,

No. 22-10932, 2024 WL 1827825 (5th Cir. Apr. 26, 2024) .................................... 15

United States v. Morales-Lopez,

No. 2:20-CR-00027-JNP, 2022 WL 2355920 (D. Utah June 30, 2022) ................... 8

United States v. Morrison,

529 U.S. 598 (2000) .......................................................................................... 29, 33

United States v. Nevarez,

251 F.3d 28 (2d Cir. 2001) ...................................................................................... 21

United States v. Nyandoro,

146 F.4th 448 (5th Cir. 2025) ....................................1, 11, 12, 14, 15, 16, 18, 24, 26

United States v. Nyandoro,

No. 4:22-CR-00117-O (N.D. Tex. May 26, 2023) ..................................................... 1

United States v. Ortega-Ascanio,

376 F.3d 879 (9th Cir. 2004) ............................................................................ 25, 27

United States v. Overton,

24 F.4th 870 (2d Cir. 2022) .................................................................................... 25

United States v. Patterson,

431 F.3d 832 (5th Cir. 2005) ...................................................................... 19, 20, 23

United States v. Patterson,

853 F.3d 298 (6th Cir. 2017) ................................................................................. 30

United States v. Patton,

451 F.3d 615 (10th Cir. 2006) ................................................................................ 31

United States v. Portillo-Munoz,

643 F.3d 437 (5th Cir. 2011) .................................................................................. 15

United States v. Presley,

478 F.2d 163 (5th Cir. 1973) ............................................................................ 26, 27

United States v. Purdy,

264 F.3d 809 (9th Cir. 2001) .................................................................................. 22

United States v. Rahimi,

602 U.S. 680 (2024) .......................................................................................... 17, 29

United States v. Rahimi,

61 F.4th 443 (5th Cir. 2023), overruled on other grounds by United

States v. Rahimi, 602 U.S. 680 (2024) ............................................................... 7, 23

United States v. Rawls,

85 F.3d 240 (5th Cir. 1996) ............................................................................. 30, 31

United States v. Santiago,

238 F.3d 213 (2d Cir. 2001) ................................................................................... 31

United States v. Seekins,

52 F.4th 988 (5th Cir. 2022) ............................................................................. 28, 32

United States v. Seiwert,

152 F.4th 854 (7th Cir. 2025) ................................................................................. 22

United States v. Serrano-Lara,

698 F.3d 841 (5th Cir. 2012) .................................................................................. 16

United States v. Shelton,

66 F.3d 991 (8th Cir. 1995) .................................................................................... 31

United States v. Smith,

101 F.3d 202 (1st Cir. 1996) ................................................................................... 31

United States v. Thompson-Riviere,

561 F.3d 345 (4th Cir. 2009) .................................................................................. 25

United States v. Toussaint,

620 F. App’x 831 (11th Cir. 2015) .......................................................................... 24

United States v. Wright,

607 F.3d 708 (11th Cir. 2010) ................................................................................ 31

United States v. Yepez,

456 F. App’x 52 (2d Cir. 2012) ............................................................................... 21

Federal Statutes

18 U.S.C. § 922(g)(3) .................................................................................... 2, 19, 20, 23

18 U.S.C. § 922(q) ........................................................................................................ 28

28 U.S.C. § 1254(1) ........................................................................................................ 1

Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90351, § 1202, 82 Stat. 197 ........................................................................................ 27

Rules

Fed. R. Crim. P. 11(d)(2)(B) ........................................................................... 2, 8, 23, 27

Supreme Court Rule 13.3 .............................................................................................. 1

Regulations

27 C.F.R. § 478.11 ............................................................................................ 19, 20, 21

Constitutional Provisions

U.S. Const. Amendment II ............................................................................................ 1

U.S. Const. Amendment V ...................................................................................... 1, 19

U.S. Const. Article I, § 8, cl. 3 ................................................................................. 1, 32

Other Authorities

Appellant's Initial Br., United States v. Nyandoro, 146 F.4th 448, 463

(5th Cir. 2025) (No. 23-10579), 2023 WL 8523873 .............................. 10, 11, 18, 24

Appellant's Pet. for Rehr'g En Banc, United States v. Nyandoro, No.

23-10579 (5th Cir. July 17, 2025) .......................................................................... 12

Appellant's Reply Br., United States v. Nyandoro, 146 F.4th 448, 463

(5th Cir. 2025) (No. 23-10579), 2024 WL 5316340 .................................... 18, 19, 24

Appellee's Br., United States v. Nyandoro, 146 F.4th 448 (5th Cir.

2025) (No. 23-10579), 2024 WL 4604477 ................................................... 11, 14, 18

Judgment, United States v. Hunter, No. 4:23-cr-00085 (N.D. Tex. May

13, 2024) .................................................................................................................. 13

Judgment, United States v. Rahimi, No. 21-11001 (5th Cir. Mar. 24,

2023).......................................................................................................................... 8

On Petition for Rehearing En Banc, United States v. Nyandoro, No. 2310579 (5th Cir. Aug. 29, 2025) ............................................................................... 12

Pet. for Cert., Hunter v. United States, No. 24-1063 (U.S. Apr. 4, 2025) ............ 13, 14

Pet. for Cert., United States v. Daniels, No. 24-1248 (U.S. Jun. 5, 2025) ................. 18

Pet. for Cert., United States v. Hemani, No. 24-1234 (U.S. Jun. 2, 2025) ................. 18

xii

Reply Br. of Pet'r, Hunter v. United States, No. 24-1063 (U.S. Sept. 10,

2025).................................................................................................................. 14, 16

xiii

PETITION FOR A WRIT OF CERTIORARI

Kenleone Joe Nyandoro seeks a writ of certiorari to review the judgment of the

United States Court of Appeals for the Fifth Circuit.

OPINIONS BELOW

The Fifth Circuit’s published opinion is available at United States v. Nyandoro,

146 F.4th 448 (5th Cir. 2025) and is reprinted in Appendix A. The order denying rehearing is reprinted in Appendix B. The district court’s judgment and sentence in

United States v. Nyandoro, No. 4:22-CR-00117-O (N.D. Tex. May 26, 2023), is reprinted in Appendix C.

JURISDICTION

The Fifth Circuit entered its revised judgment on August 4, 2025 and denied

rehearing on August 29, 2025. This Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1) and Supreme Court Rule 13.3.

PROVISIONS INVOLVED

U.S. Const. art. I, § 8, cl. 3:

The Congress shall have Power . . . To regulate Commerce

with foreign Nations, and among the several States, and

with the Indian Tribes[.]

U.S. Const. amend. II:

A well regulated Militia, being necessary to the security of

a free State, the right of the people to keep and bear Arms,

shall not be infringed.

U.S. Const. amend. V:

No person shall be * * * deprived of life, liberty, or property,

without due process of law; * * *

18 U.S.C. § 922(g)(3):

(g) It shall be unlawful for any person—

(3) who is an unlawful user of or addicted to any controlled

substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))

to ship or transport in interstate or foreign commerce, or

possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has

been shipped or transported in interstate or foreign commerce.

Fed. R. Crim. P. 11(d)(2)(B):

(d) Withdrawing a Guilty or Nolo Contendere Plea. A defendant may withdraw a plea of guilty or nolo contendere:

(2) after the court accepts the plea, but before it imposes

sentence if:

(B) the defendant can show a fair and just reason for requesting the withdrawal.

STATEMENT OF THE CASE

Factual Background

On July 20, 2021, local police officers entered a “heavily wooded area” in re-

sponse to gunshots. Record on Appeal (ROA).265. There, the officers encountered Petitioner Kenleone Joe Nyandoro, who initially fled on foot. ROA.265. Officers eventually detained Nyandoro and found a pistol, a “Smith and Wesson, 9-millimeter, bearing Serial No. FWN5039,” on Nyandoro’s person. ROA.265-66. They arrested Nyandoro for unlawful carrying of a weapon and evading arrest. ROA.269.

Law enforcement also detained Brandon Carmack. ROA.266. Additionally, officers recovered a backpack Carmack had thrown containing marijuana and drug par-

aphernalia. ROA.266. Officers interrogated Carmack, who stated that he had requested a ride from Nyandoro, and that Nyandoro and another individual had picked

Carmack up. ROA.266. Carmack stated that they traveled back to Nyandoro’s residence, where Carmack noticed the odor of marijuana in Nyandoro’s bedroom.

ROA.266. Carmack told officers they then left Nyandoro’s residence. ROA.266.

On July 21, 2021, law enforcement obtained and executed a search warrant for

Nyandoro’s residence. ROA.266. In the bedroom, officers located “a small amount of

marijuana,” drug paraphernalia, and several firearms. ROA.266. During the search

of Nyandoro’s vehicle parked in the garage, officers found “four small baggies containing marijuana in the center console[.]” ROA.266. “Another baggie containing marijuana was discovered on the ground in the driveway.” ROA.266.

Law enforcement interrogated Nyandoro after his arrest. ROA.266. Nyandoro

admitted to “shooting in the woods with Carmack and another individual[.]”

ROA.266. “Nyandoro stated he was shooting into the ground and was unaware he

could not fire a weapon within city limits.” ROA.266. Additionally, Nyandoro “denied

being involved in the distribution of marijuana; however, he admitted to using marijuana.” ROA.266.

II.

Proceedings in District Court

Over half a year later, on March 8, 2022, the Government filed a criminal com-

plaint against Nyandoro alleging possession of a firearm by an unlawful user of a

controlled substance. ROA.305-10. The Government then obtained an indictment on

April 13, 2022, charging Nyandoro with violating 18 U.S.C. § 922(g)(3) in or about

July 2021. ROA.12.

Nyandoro was arrested on April 14, 2022. ROA.15. A Pretrial Services Report

completed after this arrest reflects that Nyandoro “admitted to daily use of marijuana

until his arrest in July 2021.” ROA.272. After a detention hearing on April 20, 2022,

the court released Nyandoro on conditions, which included not committing further

crimes and participating in drug testing and treatment. ROA.33-35. Nyandoro’s initial drug test after his release was positive for marijuana. ROA.272. All subsequent

tests, however, were negative. ROA.272. Even so, on May 24, 2022, Helping Open

People’s Eyes (HOPE), Pretrial Services’ substance abuse treatment provider, diagnosed Nyandoro with severe cannabis use disorder. ROA.272.

On May 18, 2022, Nyandoro executed a plea agreement and factual resume.

ROA.46, 259. In the plea agreement, the Government agreed to dismiss the indictment if Nyandoro successfully completed a diversionary program known as Sentencing to Equip People for Success (STEPS). ROA.39-44, 252-54, 256-57. The agreement

cautioned that if Nyandoro “does not successfully complete, is terminated from, or

voluntarily withdraws from the STEPS Program,” Nyandoro “will not be allowed to

withdraw [his] guilty plea, and [his] case will proceed to sentencing.” ROA.252. It also

contained this waiver of appeal:

12. Waiver of right to appeal or otherwise challenge sentence: The defendant waives the defendant’s rights, conferred by 28 U.S.C. § 1291 and 18 U.S.C. § 3742 , to appeal

the conviction, sentence, fine and order of restitution or forfeiture in an amount to be determined by the district court.

The defendant further waives the defendant’s right to contest the conviction, sentence , fine and order of restitution

or forfeiture in any collateral proceeding, including proceedings under 28 U.S.C. § 2241 and 28 U.S.C. § 2255. The

defendant , however, reserves the rights (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.

ROA.256. Nyandoro also signed a factual resume that he agreed was “true and will

be submitted as evidence” in support of his guilty plea. ROA.251. In that factual resume, Nyandoro admitted:

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 [sic] was 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.

ROA.45-46. Finally, the plea agreement provided that “[i]f the plea is vacated or withdrawn for any reason other than a finding that it was involuntary, the defendant also

waives objection to the use against the defendant of any information or statements

the defendant has provided to the government, and any resulting leads.” ROA.255.

Simultaneously with the plea paperwork, Nyandoro filed an application for

STEPS. ROA.318-21. The district court held a hearing regarding STEPS on May 23,

2022; and days later, Nyandoro signed the STEPS participation agreement. ROA.39,

322-26. On May 31, 2022, the government executed the plea agreement and filed the

plea paperwork. ROA.5, 45-46, 250-59.

On June 8, 2022, Nyandoro had his guilty plea hearing before a magistrate

judge. ROA.48, 156-210. The presiding judge informed Nyandoro that the elements

for a § 922(g)(3) conviction are:

First, that the defendant is an unlawful user of any controlled substance.

Second, he, thereafter, knowingly possessed a firearm.

And third, that the possession was in or affecting interstate

commerce of that firearm.

ROA.175-76. The judge did not further elaborate on what “unlawful user” meant. The

judge questioned Nyandoro on his competency and the voluntariness of his plea.

ROA.167-70, 181-82. Nyandoro then pleaded guilty to violating § 922(g)(3). ROA.12,

189. To find that a factual basis supported the guilty plea, the magistrate judge

looked to the factual resume that Nyandoro had executed in connection with his plea

agreement. ROA.189-93. In the end, the magistrate judge found that Nyandoro was

‘fully competent and capable of entering an informed plea and that his plea of guilty

to the charge…against him is a knowing and a voluntary plea[.]” ROA.194. The judge

also found that Nyandoro’s “plea of guilty to the charge…against him…[was] supported by an independent basis in fact, containing each of the essential elements of

the offense[] charged[.]” ROA.194. The magistrate judge recommended accepting

Nyandoro’s plea. ROA.49-50. On June 23, 2022, the district court accepted the recommendation without objection. ROA.6. Also on June 23, 2022, this Court issued its

decision in New York State Rifle & Pistol Association, Inc. v. Bruen, 597 U.S. 1 (2022).

On November 1, 2022, HOPE unsuccessfully discharged Nyandoro from its

treatment program for failing to attend treatment. ROA.272. On November 10, 2022,

at a STEPS-related hearing, the presiding judge deemed Nyandoro unsuccessful for

the month. ROA.7, 265. But the judge continued Nyandoro in the program with mental health counseling added. ROA.7, 265. Nyandoro executed a written consent to the

modification a short time later. ROA.52.

On December 21, 2022, however, Nyandoro was arrested by state authorities

for felony evading arrest. ROA.269. Nyandoro and a passenger had been stopped in a

traffic stop earlier that day, and Nyandoro had sped away. ROA.269. Nyandoro was

arrested out of the vehicle as he tried to park it in the garage. ROA.270. A subsequent

search of the vehicle revealed “a baggie with unspecified drug residue.” ROA.270.

U.S. Probation reported the violation of conditions of release, a writ of habeas

corpus was obtained, Nyandoro’s pretrial release was revoked, and his STEPS participation terminated on January 19, 2023. ROA.8, 53, 269, 327-29, 332. On January

27, 2023, a U.S. Probation Officer interviewed Nyandoro as part of the presentencing

investigation. ROA.267.

On March 2, 2023, in an unrelated case, the Fifth Circuit held that this Court’s

Bruen decision rendered “obsolete” prior precedent upholding federal firearm crimes

against Second Amendment challenges. United States v. Rahimi, 61 F.4th 443, 450–

51 (5th Cir. 2023), overruled on other grounds by United States v. Rahimi, 602 U.S.

680 (2024).

On March 10, 2023, the Presentence Investigation Report was disclosed to both

parties. ROA.261-76. On March 14, 2023, defense counsel conferred with the government on a motion to withdraw the guilty plea and dismiss the indictment. ROA.77.

On March 24, 2023, the Fifth Circuit issued its mandate in Rahimi. Judgment,

United States v. Rahimi, No. 21-11001 (5th Cir. Mar. 24, 2023), ECF 162. And on

March 31, 2023, Nyandoro filed the motion seeking withdrawal of the guilty plea and

dismissal of the indictment. ROA.61-77. In his motion, Nyandoro cited the seven factors that United States v. Carr, 740 F.2d 339 (5th Cir. 1984), had outlined for determining a “fair and just reason” for a guilty plea’s withdrawal under a predecessor

rule to Fed. R. Crim. P. 11(d)(2)(B). ROA.63. These are:

(1) has the defendant asserted his innocence;

(2) will withdrawal prejudice the government;

(3) length of delay in the defendant filing the withdrawal

motion;

(4) will withdrawal inconvenience the court;

(5) was adequate assistance of counsel available;

(6) was the plea knowing and voluntary; and

(7) will withdrawal waste judicial resources.

ROA.63. The crux of Nyandoro’s argument for withdrawal depended on the Fifth circuit’s application of Bruen in Rahimi. ROA.71-76. See also ROA.120-21, 214-17. He

also raised a void-for-vagueness Due Process challenge to § 922(g)(3), citing primarily

United States v. Morales-Lopez, No. 2:20-CR-00027-JNP, 2022 WL 2355920 (D. Utah

June 30, 2022). ROA.64-71. Quoting Bousley v. United States, 523 U.S. 614, 618

(1998) and referencing Federal Rule of Criminal Procedure 11, Nyandoro also cited

to constitutional and statutory requirements for a knowing, intelligent, and valid

guilty plea. ROA.62. Finally, Nyandoro cited law requiring a sufficient factual basis

to support the plea. ROA.62-63. After setting the stage, Nyandoro emphasized “his

innocence to the charged indictment, as 18 U.S.C. § 922(g)(3) is unconstitutional in

light of Bruen, and Rahimi.” ROA.63.

The Government responded on April 5, 2023. ROA.78-106. The bulk of the Government’s argument was that § 922(g)(3) remained constitutional. ROA.85-104. It asserted that Bruen changed nothing with respect to § 922(g)(3), and even if it did, that

§ 922(g)(3) met Bruen’s new test. ROA.85-99. The Government also defended the statute against Nyandoro’s vagueness arguments. ROA.100-03. Finally, the Government

argued that the Carr factors did not support withdrawal because Nyandoro’s plea was

knowing and voluntary, the government would be prejudiced if the district court permitted withdrawal, and judicial resources would be wasted if Nyandoro undid his

plea. ROA.104-06.

On April 6, 2023, Judge Cardone from the Western District of Texas dismissed

an indictment alleging a violation of 18 U.S.C. § 922(g)(3) as unconstitutional under

Bruen. See United States v. Connelly, 668 F. Supp. 3d 662, 668–80 (W.D. Tex. 2023).

Nyandoro filed a notice of supplemental authority attaching the Western District of

Texas’s Connelly decision on May 24, 2023. ROA.120-37.

Sentencing was held on May 26, 2024. ROA.211-49. The court heard oral argument on the motion to withdraw the guilty plea at sentencing. ROA.214-22. Nyandoro

criticized the historical analogues proposed by the Government for § 922(g)(3) as addressing only “active intoxication.” ROA.215. He elaborated that the government

would not be prejudiced if withdrawal were permitted, that any delay in filing the

motion to withdraw should be calculated from the date Rahimi issued (and not

Bruen), and reiterated that his plea cannot be deemed knowing and voluntary given

the change in law post-plea. ROA.217-221.

The court overruled the motion. ROA.222-23. It agreed with Nyandoro that he

“was asserting his innocence,” and found this factor weighed in his favor. ROA.222.

But the court found that the prejudice factor weighed in favor of the government, that

Bruen rather than Rahimi kickstarted the period for calculating delay, that whether

the court would be inconvenienced was neutral but that withdrawal would waste judicial resources, and that Nyandoro’s guilty plea was knowingly and voluntarily

made. ROA.222-23. Having weighed all these factors against Nyandoro, the district

court denied the motion. ROA.223. The court then accepted the plea agreement and

sentenced Nyandoro to 51 months and three years of supervised release. ROA.233.

III.

Proceedings on Appeal

Nyandoro raised two issues on appeal: the district court’s denial of his motion

to withdraw; and the district court’s acceptance of his guilty plea. Appellant’s Initial

Br. 2, United States v. Nyandoro, 146 F.4th 448, 463 (5th Cir. 2025) (No. 23-10579),

2023 WL 8523873. On the latter, Nyandoro raised three sub-issues: whether his

§ 922(g)(3) conviction violated the Second Amendment; whether the statute was unconstitutionally vague on its face; and whether Congress exceeded its Commerce

Clause powers when it enacted the statute. Nyandoro Appellant’s Initial Br. 2. Using

his constitutional arguments, especially his Second Amendment challenge, as the

foundation, Nyandoro argued that the district court erroneously convicted him on an

insufficient factual basis and misadvised him on the nature of the offense. Nyandoro

Appellant’s Initial Br. 32–43. Nyandoro also raised a myriad of arguments to overcome the appellate waiver. Nyandoro Appellant’s Initial Br. 15–26. These included

challenges to the voluntariness of the waiver, an invocation of the Fifth Circuit’s factual-insufficiency exception to appeal waivers, and the argument that enforcement

would result in a miscarriage of justice. Nyandoro Appellant’s Initial Br. 17–23. The

Government responded that the district court did not abuse its discretion under Carr

in denying the motion to withdraw and that Nyandoro waived the remainder of his

claims. Appellee’s Br. 13–30, United States v. Nyandoro, 146 F.4th 448 (5th Cir. 2025)

(No. 23-10579), 2024 WL 4604477. The government also defended the district court’s

acceptance of the guilty plea and the constitutionality of Nyandoro’s conviction. Nyandoro Appellee’s Br. 35–44.

On the first issue, the panel held that the district court did not abuse its discretion by disallowing withdrawal. United States v. Nyandoro, 146 F.4th 448, 457

(5th Cir. 2025). Even assuming that “the first factor (Nyandoro’s assertion of innocence) favored him,” the panel found that Nyandoro’s plea was nonetheless knowing

and voluntary. Id. at 455, 457. It further found that the court could weigh prejudice

to the government, delay in seeking withdrawal, and the waste of judicial resources

against Nyandoro. Id. at 455–56. On the second issue and related sub issues, the

panel enforced the appeal waiver. Id. at 457–63. The panel considered Nyandoro’s

factual insufficiency argument against the waiver his “strongest.” Id. at 458. Still, it

limited the exception to factual insufficiency as compared to the statutorily-required

elements only. Id. at 460–61. The panel deemed Nyandoro’s factual-sufficiency argument as a “repackage[ed] ”constitutional argument, and because the Fifth Circuit en-

forces appeal waivers against constitutional claims, Nyandoro’s claim was no different. Id. at 459–61. The panel also rejected Nyandoro’s voluntariness arguments and

that a “miscarriage of justice” existed and could apply to reach the merits of Nyandoro’s claims. Id. at 461–63.

Nyandoro sought en banc rehearing on the panel’s treatment of the factualinsufficiency exception, arguing that it should reach all facts necessary for a constitutional conviction. Appellant’s Pet. for Rehr’g En Banc ii–iii, United States v. Nyandoro, No. 23-10579 (5th Cir. July 17, 2025) ECF 155. The court denied rehearing

without a poll. On Petition for Rehearing En Banc, United States v. Nyandoro, No. 2310579 (5th Cir. Aug. 29, 2025), ECF 169.

REASONS FOR GRANTING THIS PETITION

The Court should hold the instant petition until it decides Issues 1, 2

and 3, on which it recently granted certiorari review.

“Where intervening developments, or recent developments that we have reason

to believe the court below did not fully consider, reveal a reasonable probability that

the decision below rests upon a premise that the lower court would reject if given the

opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation,” this Court may grant certiorari, vacate the judgment below, and remand for redetermination in light of the

intervening event. Lawrence on Behalf of Lawrence v. Chater, 516 U.S. 163, 167–68

(1996). See also Stutson v. United States, 516 U.S. 163, 181 (1996) (Scalia, J., dissenting) (emphasis in original) (“We regularly hold cases that involve the same issue as a

case on which certiorari has been granted and plenary review is being conducted in

order that (if appropriate) they may be ‘GVR’d’ when the case is decided.”). Nyandoro

respectfully requests that the Court hold his instant petition pending the Court’s decisions in Hunter v. United States, No. 24-1063 (U.S. Oct. 10, 2025); and United States

v. Hemani, No. 24-1234 (U.S. Oct. 20, 2025).

The Court granted review of Issues 1 and 2 in Hunter v. United

States, No. 24-1063 (U.S. Oct. 10, 2025).

In Hunter v. United States, the district court convicted and sentenced Munson

P. Hunter, III for aiding and abetting wire fraud to 51 months imprisonment and

three years of supervised release. Judgment 1–2, United States v. Hunter, No. 4:23cr-00085 (N.D. Tex. May 13, 2024). During the term of supervised release, the district

court ordered Hunter to “take all mental-health medications” prescribed. Hunter

Judgment 4. Hunter appealed this condition because it “infringe[d] on his fundamental due process liberty interest.” United States v. Hunter, No. 24-20211, 2024 WL

5003582, at *1 (5th Cir. Dec. 6, 2024). The Government defended the appeal by invoking Hunter’s appeal waiver. Id.

In the panel opinion, the Fifth Circuit first rejected that “the district court’s

statement at the sentencing hearing that Hunter had a right to appeal…impact[ed]

the validity of the appeal waiver.” Id. Citing United States v. Barnes, 953 F.3d 383,

389 (5th Cir. 2020), the Fifth Circuit also “rejected Hunter’s suggestion that the right

to challenge an unconstitutional sentence cannot be waived.” Id. The Court of Appeals

thus enforced the waiver and dismissed Hunter’s appeal. Id.

Hunter then sought certiorari review, advocating for an exception to general

appeal waivers for appeals of unconstitutional sentences. Pet. for Cert. 3, 21, Hunter

v. United States, No. 24-1063 (U.S. Apr. 4, 2025). See also Reply Br. of Pet’r 5, Hunter

v. United States, No. 24-1063 (U.S. Sept. 10, 2025) (pointing to Fifth Circuit’s recent

refusal to adopt a “miscarriage-of-justice” exception as a reason to grant certiorari

review). Hunter also argued that the Court should honor an unobjected-to statement

of appellate rights voiced by the district court over the appeal waiver. Hunter Pet. for

Cert. 25–26.

The decision in Hunter can prove outcome determinative in this case. “Nyandoro contend[ed] that because § 922(g)(3) is unconstitutional—both facially and as

applied to him—his conviction lacked a lawful foundation….” Nyandoro, 146 F.4th at

457. “[T]hus,” Nyandoro argued his § 922(g)(3) conviction “failed to meet Rule 11’s

requirements” that a “plea rest[] on a sufficient factual basis and that the defendant

understand[] the nature of the charge.” Id. As in Hunter, the government invoked the

appellate waiver. Id. And as in Hunter, Barnes was cited to enforce the waiver. See

Nyandoro Appellee’s Br. 27, (citing Barnes, 953 F.3d at 388-89) (“defendants can

waive the right to bring constitutional challenges to their convictions and sentences”);

Nyandoro Appellee’s Br. 28 (citing Barnes, 953 F.3d at 389) (“Nyandoro argues that

his appellate waiver should not be enforced because ‘doing so would amount to a miscarriage of justice[,]’” but “this Court has consistently ‘declined explicitly either to

adopt or to reject’ a miscarriage-of-justice exception to the enforcement of an appellate waiver”). Again, as in Hunter, the Fifth Circuit enforced the appeal waiver

against Nyandoro’s constitutionally-based claims. Nyandoro, 146 F.4th at 457.

“[W]hile Nyandoro attempt[ed] to cast his claim in factual-insufficiency terms,”

the Fifth Circuit reasoned “his briefing ma[d]e[] clear that his challenge rests entirely

on the constitutionality of § 922(g)(3)….” Id. at 460. And “constitutional challenges

are waivable,” including a “challenge [to] the constitutionality of [the] statute of conviction.” Id. at 459 (citing United States v. Miles, No. 22-10932, 2024 WL 1827825, at

*1 (5th Cir. Apr. 26, 2024)). Miles, on which the panel below relied, enforced an appeal

waiver against a claim that 26 U.S.C. § 5861(d) was unconstitutional under the Second Amendment. Miles, 2024 WL 1827825, at *1. Miles, in turn, cited United States

v. Portillo-Munoz, 643 F.3d 437, 442 (5th Cir. 2011), in support of its enforcement of

the waiver. Miles, 2024 WL 1827825, at *1. And Barnes cited Portillo-Munoz for the

proposition that “defendants can waive the right to challenge both illegal and unconstitutional sentences.” 953 F.3d at 389 & n.11 (citing Portillo-Munoz, 643 F.3d at

442). Thus, although the panel did not directly cite Barnes, the panel relied on the

same line of precedent as the Hunter panel. Moreover, along the way, and despite

“the importance of [Nyandoro’s] constitutional challenge,” the Nyandoro panel also

rejected a “miscarriage-of-justice” exception to a general waiver. See Nyandoro, 146

F.4th at 463. Thus, the enforcement of general appeal waivers against claims like

Nyandoro’s is precisely the question the Court will decide in Hunter.

Additionally, Nyandoro’s case presents the second issue on which the Court

granted review in Hunter too. At sentencing, the district court provided Nyandoro

with a notice of appellate rights that parroted the rights to appeal under Federal Rule

of Criminal Procedure 32 and Federal Rule of Appellate Procedure 4, but which made

no mention of Nyandoro’s appeal waiver. ROA.140. In open court, the district court

also informed Nyandoro:

Now, sir, you have the right to appeal. You also have the

right to apply for leave to appeal in forma pauperis, if you

are unable to pay the cost of an appeal. And if you decide

to appeal, your notice must be filed within 14 days. Please

instruct your counsel on how you wish to proceed in that

regard.

ROA.235. The Government did not object. ROA.235. Admittedly, Nyandoro did not

raise before the Fifth Circuit that the district court’s unobjected-to statement precluded enforcement of the waiver. That said, “a party does not waive legal arguments

if doing so below would have been ‘futile.’” Hunter Reply Br. of Pet’r n.4 (quoting

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 125 (2007)). And had Nyandoro

raised the argument, such an effort to avoid enforcement of the waiver would have

been futile. See Hunter, 2024 WL 5003582, at *1 (citing United States v. Gonzalez,

259 F.3d 355, 358 (5th Cir. 2001)); United States v. Serrano-Lara, 698 F.3d 841, 845

(5th Cir. 2012) (reaffirming Gonzalez).

In short, the Fifth Circuit found that Nyandoro’s “contention that the district

court should never have accepted the plea—because of the alleged unconstitutionality

of § 922(g)(3)—[was] barred by his knowing and voluntary appeal waiver.” Nyandoro,

146 F.4th at 463. It did so on the basis of the same line of precedent that this Court

will review in Hunter. Thus, the outcome in Hunter may prove outcome-determinative. If the Court adopts an exception to general appeal waivers for constitutionally-

based challenges to sentences, the Fifth Circuit must address the merits of Nyandoro’s appeal. Given the importance of Hunter to the outcome here, the Court should

hold this petition and take the necessary action after it issues its decision in Hunter.

The Court granted review of Issue 3 in United States v. Hemani,

No. 24-1234 (U.S. Oct. 20, 2025).

At the district court, the government in Hemani agreed that dismissal of the

indictment was appropriate because 18 U.S.C. § 922(g)(3) as applied to Hemani was

unconstitutional under then-binding Fifth Circuit precedent. United States v. Hemani, No. 4:23-CR-18-ALM-KPJ-1, 2024 WL 5375143, at *1 (E.D. Tex. Feb. 1, 2024)

(citing United States v. Daniels, 77 F.4th 337 (5th Cir. 2023)). That said, the government made clear its intent to argue on appeal that that precedent was wrong. Id.

Then, this Court granted certiorari and vacated the opinion in Daniels, remanding it

“for further consideration in light of United States v. Rahimi, 602 U.S. [680] (2024).”

United States v. Daniels, 144 S. Ct. 2707 (2024).

Before Daniels II issued, see United States v. Daniels, 124 F.4th 967 (5th Cir.

2025), however, the Fifth Circuit decided United States v. Connelly, 117 F.4th 269

(5th Cir. 2024). Connelly “held that the government could not constitutionally apply

§ 922(g)(3) to a defendant based solely on her ‘habitual or occasional drug use.’” Daniels II, 124 F.4th at 970 (citing Connelly, 117 F.4th at 282).1 “[B]ecause there was no

effort to show that Connelly, despite being a regular drug user, was intoxicated at the

time she was arrested possessing a firearm,” Connelly concluded that “applying

1 Daniels II concluded that because the jury had not been instructed properly to en-

sure a constitutional application of § 922(g)(3) under Connelly, a remand for retrial

was necessary. Daniels II, 124 F.4th at 970, 975–76.

§ 922(g)(3) to her was unconstitutional as applied.” United States v. Hemani, No. 2440137, 2025 WL 354982, at *1 (5th Cir. Jan. 31, 2025). So the government again conceded a loss on appeal, except this time based on Connelly. Hemani, 2025 WL 354982,

at *1. “[D]espite disagreeing with [Connelly], [the government] concluded that it applies here and is not relevantly distinguishable.” Id. Accordingly, the government

sought summary affirmance at the Fifth Circuit because “its evidence [was] deficient

under Connelly’s binding precedent” and the deficiency was “dispositive.” Id.

The government then sought certiorari review on “[w]hether 18 U.S.C.

922(g)(3)…violates the Second Amendment as applied to respondent.” Pet. for Cert.

I, United States v. Hemani, No. 24-1234 (U.S. Jun. 2, 2025).2 The government argued

that history and tradition allowed for the temporary disarmament of persons who

pose a clear danger of misusing firearms, and that habitual use, not just present intoxication, sufficed to trigger that disarmament. See Hemani Pet. for Cert. 8–20. The

government also criticized Connelly as invalidating “Section 922(g)(3) in the lion’s

share of its applications.” Hemani Pet. for Cert. 23.

The panel below did not reach the constitutional issue because it deemed the

issue waived. Nyandoro, 146 F.4th at 463. That said, both parties extensively briefed

the constitutionality of § 922(g)(3)’s application to Nyandoro. See Nyandoro Appellant’s Initial Br. 37–43; Nyandoro Appellee’s Br. 35–41; Appellant’s Reply Br. 7–9,

12–21, United States v. Nyandoro, 146 F.4th 448, 463 (5th Cir. 2025) (No. 23-10579),

2 It also sought certiorari review after the Daniels II decision. See Pet. for Cert.,

United States v. Daniels, No. 24-1248 (U.S. Jun. 5, 2025). That petition remains pending.

2024 WL 5316340. Indeed, Nyandoro relied on the government’s concession in Hemani that proof of present intoxication was needed for § 922(g)(3)’s constitutional application. Nyandoro Appellant’s Reply Br. 16 n.3. The issue this Court will review in

Hemani thus directly applies to this case. The ultimate decision will no doubt elucidate, if not outright settle, the constitutionality of Nyandoro’s § 922(g)(3) conviction.

II.

This Court should determine whether 18 U.S.C. § 922(g)(3) is void for

vagueness; or alternatively, construe “unlawful user” as narrowly as

possible to avoid constitutional concerns.

The Fifth Amendment’s Due Process clause protects defendants from vague

criminal statutes. Johnson v. United States, 576 U.S. 591, 595–96 (2015). A criminal

law is void for vagueness when it is “so vague that it fails to give ordinary people fair

notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id. at 595 (quoting Kolender v. Lawson, 461 U.S. 352, 357–358 (1983)). Two

critical aspects of § 922(g)(3) render the statute, and the crime it punishes, vague:

(1) the lack of a statutory definition for “unlawful user,” and (2) the lack of a statutorily-defined nexus between the unlawful drug use and the prohibited firearm possession. See 18 U.S.C. § 922(g)(3).

In United States v. Patterson, 431 F.3d 832, 835 (5th Cir. 2005), the Fifth Circuit attempted to “cure” both deficiencies. Patterson held that “[a]n inference that a

person was a user of a controlled substance may be drawn from evidence of a pattern

of use or possession of a controlled substance that reasonably covers the time the

firearm was possessed.” 431 F.3d at 838–39 & n.2 (citing with approval 27 C.F.R. §

478.11); see also United States v. McCowan, 469 F.3d 386, 392 (5th Cir. 2006) (citing

Patterson, 431 F.3d at 838) (Patterson “implicitly” defined “unlawful user” to require

“drug use…with regularity and over an extended period of time.”). As for what “reasonably covers the time the firearm was possessed,” Patterson blessed a time period

of up to a year. See 27 C.F.R. § 478.11 (“An inference of current use may be drawn

from…a conviction for use or possession of a controlled substance within the past

year; multiple arrests for such offenses within the past 5 years if the most recent

arrest occurred within the past year; or persons found through a drug test to use a

controlled substance unlawfully, provided that the test was administered within the

past year.”).

Patterson’s statutory interpretation, however, flowed from a flawed Second

Amendment analysis upholding § 922(g)(3) using means-end scrutiny. Patterson, 431

F.3d at 835–36 (citing United States v. Emerson, 270 F.3d 203 (5th Cir.2001)); United

States v. Diaz, 116 F.4th 458, 465 (5th Cir. 2024) (citing New York State Rifle & Pistol

Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022)) (“Emerson was decided based on the meansends scrutiny that Bruen renounced.”). With the record straight on the Second

Amendment, the Fifth Circuit has since voiced great unease with how Patterson and

its progeny interpreted § 922(g)(3). See Connelly, 117 F.4th at 282 (quoting 27 C.F.R.

§ 478.11) (“The statutory term ‘unlawful user’ captures regular marijuana users, but

the temporal nexus is most generously described as vague….Stunningly, an inference

of ‘current use’ can be drawn even from ‘a conviction for use or possession of a controlled substance within the past year.’”); Daniels II, 124 F.4th at 975 (“What precisely” “use [that] ‘occurred recently enough’ to indicate Daniels was ‘actively engaged’ in unlawful use” “is nebulous”); Daniels II, 124 F.4th at 979 (Higginson, J.,

concurring) (jury instruction consistent with McCowan and 27 C.F.R. § 478.11 “was

constitutionally deficient.”). Indeed, some jurists have advocated filling in the meat

on the statutory bones with “[s]pecificity in jury instructions” that require “a tight

temporal nexus between an individual’s drug use and his possession of firearms….”

Daniels II, 124 F.4th at 976. Failing that, jurists have also suggested proceeding on

constitutional theories apart from Connelly’s “present intoxication” rule. Id. at 977–

78. That path, however, “could inject constitutional uncertainty in every § 922(g)(3)

prosecution….” Id. at 980 n.1 (Higginson, J., concurring).

The problem arises because “illicit drug use falls on a continuum: some may

use drugs with great regularity over time while others may try an illegal substance

one time only.” United States v. Nevarez, 251 F.3d 28, 30 (2d Cir. 2001). And the Fifth

Circuit is not the only appellate court that has superimposed judicially-created limits

onto the statutory text to save it from vagueness. The Second Circuit limited “unlawful user” to capture only those users on the spectrum whose “unlawful use of a controlled substance [was] ongoing and contemporaneous with”—not “simultaneous,”

just “during the time period” of—the firearm possession. Id. (internal quotations

omitted). See also United States v. Yepez, 456 F. App’x 52, 54–55 (2d Cir. 2012) (citing

Nevarez) (internal quotations omitted) (sufficient evidence exists to sustain

§ 922(g)(3) conviction where defendant “engaged in a pattern of use of controlled substances that reasonably covers the time of the events charged”). The Third Circuit

requires “regular use over a period of time proximate to or contemporaneous with the

possession of the firearm,” but explicitly rejected that the statute allowed for prosecution of one-time use, even if contemporaneous. United States v. Augustin, 376 F.3d

135, 138–39, n.5 & n.6 (3d Cir. 2004) (emphasis added). The Sixth Circuit requires

not just regular use, but use “over an extended period of time, and contemporaneously

with [the] purchase or possession of a firearm.” United States v. Bowens, 938 F.3d

790, 793 (6th Cir. 2019). The Seventh Circuit recently seemingly approved of a construction that limits “unlawful user” to persons “engaged in a pattern of regular and

repeated use of a controlled substance during a period that reasonably covers the time

a firearm was possessed.” United States v. Seiwert, 152 F.4th 854, 873 (7th Cir. 2025).

The Eighth Circuit, by contrast, explicitly rejected a qualification “that would require

evidence of use over an extended period.” United States v. Carnes, 22 F.4th 743, 748–

49 (8th Cir. 2022). “[T]o sustain a conviction under § 922(g)(3)” in the Ninth Circuit,

by contrast, “the government must prove…that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or

possession of a firearm.” United States v. Purdy, 264 F.3d 809, 812–13 (9th Cir. 2001)

(emphasis added). In the Eleventh Circuit, the “use must be ongoing and contemporaneous with the commission of the offense.” United States v. Clanton, 515 F. App’x

826, 830 (11th Cir. 2013) (quoting United States v. Edmonds, 348 F.3d 950, 953 (11th

Cir. 2003)). Again, “contemporaneous” does not mean “simultaneous with the firearm

possession or that the defendant was under the influence at the time of the possession.” Clanton, 515 F. App’x at 830 (citing Edmonds, 348 F.3d at 953). That said,

instructing a jury “that ‘[s]uch use is not limited to the use of drugs on a particular

day or within a matter of days or weeks before’” “undercut[s] the temporal nexus requirement” to an “improper” degree. Clanton, 515 F. App’x at 830.

“Americans must be given clear notice of what conduct is criminal.” Daniels II,

124 F.4th at 979 (Higginson, J., concurring). And that notice should come from Congress via the statute, not by judicial fiat. See Johnson, 576 U.S. at 595–97 (2015);

United States v. Davis, 588 U.S. 445, 447–48 (2019). The absence of clear and objective standards in § 922(g)(3) does not allow ordinary citizens to determine when their

fundamental constitutional right to bear arms is restricted and invites arbitrary second-guessing by the judiciary. The Court should declare the statute void for vagueness or, at minimum, give “unlawful user” the narrowest construction possible. See

Davis, 588 U.S. at 462–63 (“when presented with two ‘fair alternatives,’ this Court

has sometimes adopted,” under the “canon of constitutional avoidance,” “the narrower

construction of a criminal statute to avoid having to hold it unconstitutional if it were

construed more broadly.”); Jones v. United States, 529 U.S. 848, 850–51 (2000).

III.

The Circuits are split on whether or when legal innocence constitutes

a “fair and just reason” for withdrawing a guilty plea.

“A defendant may withdraw a plea of guilty…after the court accepts the plea,

but before it imposes sentence if…the defendant can show a fair and just reason for

requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). At the trial court, Nyandoro

sought to withdraw his guilty plea based on intervening precedent “rendering…obsolete” a prior line of precedent, which had settled the constitutionality of the prosecution against him. See Patterson, 431 F.3d at 835–36 (relying on Emerson to uphold

§ 922(g)(3) under the second Amendment); Rahimi, 61 F.4th at 451 (Bruen rendered

Emerson “obsolete”); Nyandoro Appellant Initial Br. 7–10, 26–31; Nyandoro Appellant Reply Br. 21–22. The Fifth Circuit held that the district court did not abuse its

discretion in disallowing withdrawal under the totality of the circumstances. See

Nyandoro, 146 F.4th at 454–57. Implicit in the Fifth Circuit’s decision, therefore, is

the conclusion that a claim of innocence, no matter how credible, was only one factor

to consider. Such a claim is insufficient, by itself, to constitute “a fair and just reason”

for withdrawing a guilty plea. But other Circuits—and panels within the Fifth Circuit—have departed from the panel opinion on this point.

At one extreme, the First Circuit apparently will not entertain claims of legal

innocence as a “fair and just reason” for withdrawing a plea unless a defendant first

establishes that the plea was not knowing, intelligent, or voluntary. See United States

v. Garcia-Nunez, 71 F.4th 1, 10 (1st Cir. 2023). In a similar vein, the Eighth Circuit

and Eleventh Circuit give assertions of innocence little weight. See United States v.

Harvey, 829 F.3d 586, 590 (8th Cir. 2016) (internal quotations omitted) (“[a]n assertion of innocence…does not constitute a fair and just reason to grant withdrawal,”

and “a district court does not need to consider a defendant’s assertions of innocence

if the defendant does not demonstrate fair and just grounds to withdraw the plea.”);

United States v. Toussaint, 620 F. App’x 831, 835 (11th Cir. 2015) (quoting United

States v. Buckles, 843 F.2d 469, 472–73 (11th Cir. 1988)) (cleaned up) (“a mere declaration of innocence alone does not entitle him to withdraw his guilty plea,” as “guilty

pleas would be of little value to the judicial system if a defendant’s later conclusory

assertion of innocent automatically negated his plea”).

At the other end of the spectrum, the Third Circuit has explicitly stated that

“[l]egal innocence alone can support withdrawal of a guilty plea.” United States v.

James, 928 F.3d 247, 253 (3d Cir. 2019). The Second, Sixth, and Seventh Circuits

seemingly agree. United States v. Overton, 24 F.4th 870, 879 (2d Cir. 2022); United

States v. Carpenter, 554 F. App’x 477, 482 (6th Cir. 2014) (quoting United States v.

Baez, 87 F.3d 805, 809 (6th Cir. 1996)); United States v. Hodges, 259 F.3d 655, 661

(7th Cir. 2001). In the Fourth Circuit and the Tenth Circuit, legal innocence is a relevant but non-dispositive factor. United States v. Thompson-Riviere, 561 F.3d 345,

351, 356–57 (4th Cir. 2009); United States v. Marceleno, 819 F.3d 1267, 1275 (10th

Cir. 2016) (“if a district court concludes that the assertion-of-innocence factor weighs

in favor of a defendant, it still must weigh this factor with the presence or absence of

the remaining [] factors”). The D.C. Circuit takes an in-between approach. United

States v. Abreu, 964 F.2d 16, 19–20 (D.C. Cir. 1992) (quoting United States v. McKoy,

645 F.2d 1037, 1039 (D.C. Cir. 1981)) (“the district court retains some discretion to

deny a withdrawal motion, even when the defendant asserts a plausible legal defense” because “the defendant [must[ offer[] a ‘tenable explanation for withholding

the alleged defense at the time of his original plea hearing.’”). And in the Ninth Circuit, the very fact pattern present in Nyandoro’s case most likely would have led to

reversal. United States v. Ortega-Ascanio, 376 F.3d 879, 887 (9th Cir. 2004) (“OrtegaAscanio demonstrated a fair and just reason for withdrawing his plea, namely, an

intervening Supreme Court decision that overruled Circuit precedent and gave him

a plausible ground for dismissal of his indictment.”).

The Fifth Circuit is inconsistent in its approach. The Nyandoro panel weighed

legal innocence in favor of withdrawal but ultimately concluded that the district court

did not abuse its discretion by finding that other factors outweighed it. Nyandoro,

146 F.4th at 455. In United States v. Lord, 915 F.3d 1009 (5th Cir. 2019), however,

the Fifth Circuit appeared to jettison legal innocence as a valid ground for withdrawal

altogether. Lord, 915 F.3d at 1014–15 (citing United States v. McKnight, 570 F.3d

641, 649 (5th Cir. 2009) and United States v. Meza-Jacquez, 671 F. App’x 340, 341

(5th Cir. 2016)). See also James, 928 F.3d at 253 (citing Lord for the proposition that

the Fifth Circuit has split from other circuits on whether “a claim of legal innocence

can support the withdrawal of a guilty plea.”). And in United States v. Presley, 478

F.2d 163 (5th Cir. 1973), the Fifth Circuit seemed to endorse the complete opposite

view—that a credible assertion of legal innocence is dispositive.

“In [Presley], defendants pleaded nolo contendere to charges of violations of the

Travel Act, 18 U.S.C. § 1952, but, after their pleas and before sentencing, the Supreme Court issued a decision in Rewis v. United States, 401 U.S. 808 [] (1971), that

called into question whether the Travel Act extended to the defendants’ conduct.”

United States v. Hardy, 838 F. App’x 68, 76–77 (5th Cir. 2020) (citing Presley, 478

F.2d at 168). “[B]ecause the Rewis decision may have placed the defendants’ conduct

‘beyond the limits of the criminal jurisdiction’ of federal courts, the defendants’ preRewis purported waiver of their right to trial was not made knowingly, and they

therefore ‘should have been permitted to withdraw their pleas.’” Hardy, 838 F. App’x

at 77 (quoting Presley, 478 F.2d at 168).3 See also United States v. Mays, 593 F.3d

603, 607 (7th Cir. 2010) (citing Ortega-Ascanio and Presley as “authority for the proposition that a post-guilty plea, pre-sentence change in Supreme Court precedent that

bears on a defendant’s legal innocence may constitute a fair and just reason for permitting the withdrawal of the plea.”). The Court should grant certiorari to delineate

the boundaries of when a claim of legal innocence—particularly one premised on a

post-plea but pre-sentencing change in precedent—constitutes a “fair and just reason” to allow withdrawal of a guilty plea under Rule 11(d)(2)(B).

IV.

This Court should delineate the boundaries of federal authority under

the Commerce Clause in the firearm context.

A predecessor to 18 U.S.C. § 922(g), the Omnibus Crime Control and Safe

Streets Act of 1968 prohibited “[a]ny person who…has been convicted by a court of

the United States or of a State…of a felony” from receiving, possessing, or transporting “in commerce or affecting commerce any firearm.” Pub. L. No. 90-351, § 1202, 82

Stat. 197. In Scarborough v. United States, this Court addressed “whether proof that

the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted

felon and commerce.” Scarborough v. United States, 431 U.S. 563, 564 (1977) (emphasis added). Scarborough answered this question “yes,” but the Court did not linger on

the constitutional implications of its statutory construction. See id. at 577; see also

United States v. Johnson, 42 F.4th 743, 750 (7th Cir. 2022) (noting that the decision

3 Counsel did not become aware of Presley until preparing this petition for certiorari,

so Nyandoro did not cite it below. Neither did the government nor the Court of Appeals.

in Scarborough “was one of statutory interpretation”); United States v. Seekins, 52

F.4th 988, 991 (5th Cir. 2022) (Ho, J., dissenting from denial of rehearing en banc)

(“[T]he Court’s holding in Scarborough was statutory, not constitutional.”).

By contrast, this Court did examine the constitutional question presented by

18 U.S.C. § 922(q) in United States v. Lopez, 514 U.S. 549 (1995). The statute “made

it a federal offense ‘for any individual knowingly to possess a firearm at a place that

the individual knows, or has reasonable cause to believe, is a school zone.’” Id. at 551

(quoting 18 U.S.C. § 922(q)(1)(A) (1988 ed., Supp. V)). The district court held that the

act constituted a valid exercise of Congress’s commerce power, but the appellate court

reversed. Id. at 551–52. This Court affirmed the appellate court’s ruling that the statute lay “beyond the power of Congress under the Commerce Clause.” Id. at 552.

In so doing, the Court cabined Congress’s commerce power to “three broad categories of activity” subject to regulation: (1) “the use of the channels of interstate

commerce”; (2) activities, even if intrastate, that threaten “the instrumentalities of

interstate commerce, or persons or things in interstate commerce”; and (3) “activities

having a substantial relation to interstate commerce, i.e., those activities that substantially affect interstate commerce.” Id. at 558–59 (internal citations omitted). The

Court quickly disposed of any justification for § 922(q) under the first two categories,

focusing its inquiry on the third. Id. at 559. It noted that § 922(q) was “a criminal

statute that by its terms has nothing to do with ‘commerce’ or any sort of economic

enterprise,” elaborating in a footnote that “States possess primary authority for defining and enforcing the criminal law” and that federal criminalization of “conduct

already denounced as criminal by the States…effects a change in the sensitive relation between federal and state criminal jurisdiction.” Id. at 561 & n.3. The Court also

expressed deep concern that the government’s arguments for why possession of a firearm in a local school zone substantially affected commerce lent themselves to no limiting principle, opening the door to a “a general federal police power.” Id. at 563–66.

Ultimately, the Court concluded that “possession of a gun in a local school zone is in

no sense an economic activity that might, through repetition elsewhere, substantially

affect any sort of interstate commerce.” Id. at 567. “Respondent was a local student

at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.” Id.

Given Lopez, it is “doubt[ful] that § 922(g)(8)” — and by extension § 922(g)(3)

— “is a proper exercise of Congress’s power under the Commerce Clause.” Rahimi,

602 U.S. at 765 n.6 (2024) (citing Lopez, 514 U.S. at 585 (Thomas, J., concurring))

(Thomas, J., dissenting). But lower courts cannot conclusively resolve the tension between Scarborough and Lopez. The ultimate question posed by Lopez — “whether”

intrastate possession of a firearm that crossed state lines long before the regulated

possession “affect[s] interstate commerce sufficiently to come under the constitutional power of Congress to regulate” — “can be settled finally only by this Court.”

United States v. Morrison, 529 U.S. 598, 614 (2000) (cleaned up).

Federal appellate courts differ on the relationship between

Scarborough and Lopez.

Federal courts have “cried out for guidance from this Court” on this issue for

decades. Alderman v. United States, 562 U.S. 1163, 131 S. Ct. 700, 702 (2011)

(Thomas, J., dissenting from denial of certiorari). Simply put, “Scarborough is in fundamental and irreconcilable conflict with the rationale of the United States Supreme

Court in [Lopez].” United States v. Kuban, 94 F.3d 971, 977 (5th Cir. 1996) (DeMoss,

J., dissenting). Still, the Fifth Circuit “continue[s] to enforce § 922(g)(1)” because it is

“not at liberty to question the Supreme Court’s approval of the predecessor statute to

[§ 922(g)(1)].” United States v. Kirk, 105 F.3d 997, 1015 n.25 (5th Cir. 1997) (en banc)

(per curiam). See also United States v. Rawls, 85 F.3d 240, 243 (5th Cir. 1996) (per

curiam) (Garwood, J., concurring) (“one might well wonder how it could rationally be

concluded that mere possession of a firearm in any meaningful way concerns interstate commerce simply because the firearm had, perhaps decades previously before

the charged possessor was even born, fortuitously traveled in interstate commerce,”

but concluding that Scarborough’s “implication of constitutionality” “bind[s] us, as an

inferior court,…whether or not the Supreme Court will ultimately regard it as a controlling holding in that particular respect.”).

The Fifth Circuit is not alone. See, e.g., United States v. Patterson, 853 F.3d

298, 301–02 (6th Cir. 2017) (“If the Lopez framework is to have any ongoing vitality,

it is up to this Court to prevent it from being undermined by a 1977 precedent,” i.e.,

Scarborough, “that does not squarely address the constitutional issue.” (quoting Alderman v. United States, 562 U.S. 1163, 131 S. Ct. at 703 (Thomas, J., dissenting

from denial of certiorari))); United States v. Cortes, 299 F.3d 1030, 1037 n.2 (9th Cir.

2002) (although “[t]he vitality of Scarborough engenders significant debate,” committing to “follow Scarborough unwaveringly” “[u]ntil the Supreme Court tells us otherwise”); United States v. Bishop, 66 F.3d 569, 587–88, 588 n.28 (3d Cir. 1995) (noting

that, until the Supreme Court is more explicit on the relationship between Lopez and

Scarborough, a lower court is “not at liberty to overrule existing Supreme Court precedent”); United States v. Patton, 451 F.3d 615, 634–35 (10th Cir. 2006) (collecting

cases).

Nine courts of appeals have upheld § 922(g)(1) based solely on Scarborough’s

minimal nexus test. See United States v. Smith, 101 F.3d 202, 215 (1st Cir. 1996);

United States v. Santiago, 238 F.3d 213, 216–17 (2d Cir. 2001) (per curiam); United

States v. Gateward, 84 F.3d 670, 671–72 (3d Cir. 1996); Rawls, 85 F.3d at 242–43;

United States v. Lemons, 302 F.3d 769, 771–73 (7th Cir. 2002); United States v. Shelton, 66 F.3d 991, 992 (8th Cir. 1995) (per curiam); United States v. Hanna, 55 F.3d

1456, 1461–62, 1462 n.2 (9th Cir. 1995); United States v. Dorris, 236 F.3d 582, 584–

86 (10th Cir. 2000); United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). Only

two courts of appeals have engaged in Lopez’s substantial-effects test and reasoned

that § 922(g)(1) is constitutional under it. See United States v. Crump, 120 F.3d 462,

466 & n.2 (4th Cir. 1997) (citing United States v. Langley, 62 F.3d 602, 606 (4th Cir.

1995) (en banc), abrogated on other grounds by Rehaif v. United States, 588 U.S. 225

(2019)); United States v. Chesney, 86 F.3d 564, 568–70 (6th Cir. 1996). Because courts

often fail to apply the Lopez test to these firearm possession cases at all, defendants

across the country lack the constitutional protection from congressional overreach

provided by Lopez. For instance, applying Lopez would demand that § 922(g)’s “possess in or affecting commerce” element require either: (1) proof that the defendant’s

offense caused the firearm to move in interstate commerce; or, at least, (2) proof that

the firearm moved in interstate commerce at a time reasonably near the offense. But

Scarborough continues to control the outcome in a large majority of circuits, leaving

the “empty, formalistic” requirement of a jurisdictional provision as the only check on

Congress’ power to criminalize this kind of intrastate activity. Chesney, 86 F.3d at

580 (Batchelder, J., concurring).

An unchecked Commerce power would significantly expand

Congress’s reach into state affairs.

The federal government’s enumerated powers are “few and defined,” while the

powers which remain in the state governments are “numerous and indefinite.” Lopez,

514 U.S. at 552 (citing The Federalist No. 45, pp. 292–293 (C. Rossiter ed. 1961)). One

such enumerated power is “[t]o regulate Commerce . . . among the several States[.]”

U.S. Const. art. I, § 8, cl. 3. But without limits on federal regulatory power, our nationwide regulation would become “for all practical purposes . . . completely centralized” in a federal government. A.L.A. Schechter Poultry Corp. v. United States, 295

U.S. 495, 548 (1935). And “constitutional limits on governmental power do not enforce

themselves;” instead, “[t]hey require vigilant—and diligent—enforcement.” Seekins,

52 F.4th at 989 (Ho, J., dissenting from denial of rehearing en banc).

“Congress may conclude that a particular activity substantially affects interstate commerce” to regulate the activity, but Congress’s mere act of legislating “does

not necessarily make it so.” Morrison, 529 U.S. at 614 (quoting Lopez, 514 U.S. at 557

n.2) (cleaned up). Here, inserting the phrase “which has been shipped or transported

in interstate or foreign commerce” after any object connected to intrastate activities

that Congress may want to police cannot fulfill the constitutional requirement. See

Alderman, 131 S. Ct. at 702 (Thomas, J., dissenting from the denial of certiorari)

(“Scarborough, as the lower courts have read it, cannot be reconciled with Lopez because it reduces the constitutional analysis to the mere identification of a jurisdictional hook.”). A judicial blessing of constitutional magnitude for this minimal nexus

would “effectually obliterate the distinction between what is national and what is

local and create a completely centralized government.” Lopez, 514 U.S. at 557 (quoting N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937)). The Commerce

Clause power would be reduced to a rubber stamp, opening the door to a federal police

power in direct contravention of the federal government the Constitution enshrines.

See Morrison, 529 U.S. at 618 (“the Founders denied the National Government” “the

police power,” “reposed in the States”); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S.

519, 536 (2012) (the Commerce Clause “must be read carefully to avoid creating a

general federal authority akin to the police power”).

CONCLUSION

Petitioner Kenleone Joe Nyandoro respectfully submits that this Court should

either hold his petition or grant certiorari to review the judgment of the United States

Court of Appeals for the Fifth Circuit.

Respectfully submitted this 20th day of November, 2025.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Maria Gabriela Vega

Maria Gabriela Vega

Assistant Federal Public Defender

Federal Public Defender’s Office

525 S. Griffin Street, Suite 629

Dallas, Texas 75202

Telephone: (214) 767-2746

gabriela_vega@fd.org

Attorney for Petitioner

Kenleone Joe Nyandoro

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.