With Hunter Biden now facing three federal felony charges relating to his purchase and possession of a gun at a time when he’s admitted to regularly using and abusing crack cocaine, we’re suddenly seeing a lot of attention being paid to the federal statute in question. Some defenders of Biden claim that violations of 18 U.S.C. §§ 922(g)(3) are rarely if ever prosecuted in federal courts and that Hunter’s current charges are somehow the result of Republican pressure on special counsel David Weiss, but the truth is that, if anything, Weiss tried to cut the younger Biden one hell of a break with his original offer allowing him to enter into pre-trial diversion and avoid a felony charge altogether.

I’ve rarely seen that option given to others in similar circumstances. In fact, the only other case that I’ve run across where pre-trial diversion was given to a defendant happened in Texas not long ago, when then 19-year-old Kenleone Nyandoro was busted by police after firing a gun with some buddies in the woods near his home in the north Texas town of Saginaw. Nyandoro, who goes by “Kenny”, was originally given the chance to avoid prosecution through pre-trial diversion, but as the Dallas Morning News reported this week, when Nyandoro was arrested again the federal judge overseeing his case voided the diversion and instead sentenced the teenager to more than four years in federal prison.

Saginaw police responded in July 2021 to a complaint of gunshots in the wooded area at the end of the Nyandoros’ street.

When officers arrived, three men ran away. Nyandoro eventually stopped and was detained. Officers found a 9mm pistol in his jacket, according to court records.

They detained a second suspect, not identified in court records, who discarded a backpack at the scene with some marijuana. Under questioning, the man said he’d been in Nyandoro’s bedroom in his mother’s house earlier that day and smelled marijuana, court records show.

He also reported seeing a rifle in the room, court records said.

The following day, police searched the house with a warrant. In Nyandoro’s bedroom, they found a small amount of marijuana, drug paraphernalia and two rifles, court records show. They also found “four small baggies” of marijuana in his vehicle.

After his arrest, Nyandoro, who was 19 at the time, admitted to shooting in the woods and to using marijuana, court records say. He pleaded guilty in June 2022 and was accepted into a federal diversion program that would allow the charge to be dismissed in two years if he stayed out of trouble.

“Everyone accepted you as a candidate, in part because of your age and you have no criminal history,” Magistrate Judge Jeffrey Cureton told him during a hearing.

Nyandoro, however, was arrested in Dallas County in December on a state charge of evading arrest with a vehicle and subsequently was kicked out of the diversion program. Irving police released a single page of basic information about the arrest and are withholding other records.

Taft called it an impulsive and youthful mistake.

“Quite frankly, he was scared to be arrested again,” she said in court.

O’Connor proceeded with the sentencing.

Taft told the judge Nyandoro had just graduated from high school and worked at a warehouse. He’d never been in trouble before and was “struggling with the loss of his father,” she said.

Nyandoro addressed the judge before learning his fate.

“I’m glad I was able to keep a job, help my family, work on bettering myself,” he told O’Connor. “I’m not a bad person. But without thinking, I made a bad decision.”

O’Connor said the Nyandoro case was the first time he used the diversion program and that it will be the last.

“I was talked into doing this. I won’t ever do it again,” the judge said. “So your client has killed it, at least for future people in my court.”

The DMN article is clearly meant to evince sympathy for Nyandoro, starting with the article’s headline questioning whether the now 21-year-old should be behind bars and noting that several other judges in the Fifth Circuit have since ruled that the statute he was accused of violating is unconstitutional. Nyandoro was charged and prosecuted before the Bruen decision was handed down, and I think his appeal has a strong likelihood of success in the Fifth Circuit given the appellate court’s position in U.S. v. Daniels. In that decision, released last month, a three-judge panel concluded that laws prohibiting gun ownership for unlawful users of drugs are unconstitutional, though people can be prohibited from using guns while under the influence.

I’ll answer the question posed by the Dallas Morning News in its headline: no, Kenleone Nyandoro should not be serving a 51-month prison sentence, and I hope that his appeal is successful.

Honestly, I’d be fine with Hunter Biden avoiding prison for the same charges as well, but not through any sweetheart plea deal like the one that was originally offered to him. The issue here isn’t whether pre-trial diversion is appropriate, but whether the underlying statute is constitutional to begin with, and the Fifth Circuit’s decision is pretty clear that the government hasn’t been able to identify a single statute or ordinance in the historical record that’s analogous to 18 U.S.C. §§ 922(g)(3). Until that law is wiped off the books, either through legislative action or a Supreme Court decision, cases like Nyandoro’s (and Hunter Biden’s) will keep popping up in courts across the country, and non-violent offenders will not only run the risk of years in federal prison, but forevermore be denied their right to keep and bear arms.