Jackey Wayne Nunamaker was charged with being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). Before trial, he moved to dismiss the indictment, arguing that the statute was unconstitutional as applied to him because his prior felony convictions were non-violent. The district court rejected this Second Amendment challenge. Nunamaker then entered a conditional plea of guilty to one count of the charge to preserve the constitutional issue for appeal. The district court sentenced him to thirty months in prison. Nunamaker appealed, acknowledging in his opening brief that existing Tenth Circuit precedent likely precluded his attack, but he argued the appeal was necessary for preservation purposes and potential further review.
The panel addressed the sole issue of whether the Second Amendment challenge to 18 U.S.C. § 922(g)(1) could succeed given Nunamaker's prior non-violent felony convictions. The court relied on its decision in Vincent v. Bondi, 127 F.4th 1263 (10th Cir. 2025), which upheld the constitutionality of the statute against similar objections. The court also cited United States v. Warner, 131 F.4th 1137 (10th Cir. 2025), confirming that Vincent governs challenges even amidst a shifting Second Amendment landscape. The panel emphasized the binding nature of its own precedent, stating that one Tenth Circuit panel cannot overrule the judgment of a prior panel absent a decision by the full court en banc or a contrary Supreme Court decision. Because Vincent v. Bondi controls, the panel was compelled to uphold the district court's denial of the motion to dismiss.
The decision reaffirms the Tenth Circuit's stance that 18 U.S.C. § 922(g)(1) is constitutional as applied to individuals with any prior felony conviction, regardless of whether the prior offense was violent. It leaves no room for non-violent felony offenders in the Tenth Circuit to challenge the statute under the Second Amendment until the Supreme Court or the full Tenth Circuit en banc overturns Vincent v. Bondi. The case is remanded to the district court to enforce the thirty-month sentence.
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