1. This case presents an important question on which circuits are split: whether appellate courts can refuse to consider a challenge to the sufficiency of the factual basis for a guilty plea when the plea agreement includes an appeal waiver. Citing the appeal waiver in applicant's plea agreement, the Ninth Circuit refused to consider his argument that the facts admitted in the plea agreement do not constitute a crime under the CFAA in light of this Court's decision in Van Buren v. United States, 141 S. Ct. 1648 (2021), which was decided after applicant's plea was entered but while his appeal from his conviction was pending. See slip op. at 2-3 (stating that defendant was aware when he entered into the plea agreement that his conduct might be noncriminal and reaffirming circuit precedent that "[a]n appeal waiver in a plea agreement is enforceable if the language of the waiver encompasses the defendant's right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made." (quoting United States v. Minasyan, 4 F.4th 770, 777-78 (9th Cir. 2021) (cleaned up)).

The Ninth Circuit's approach is consistent with that of several other circuits, including the D.C. Circuit. See, e.g., In re Sealed Case, 40 F.4th 605, 606-08 (D.C. Cir. 2022) (refusing to consider defendant's argument that the facts admitted in his plea omitted a basis for an essential element of his conviction for importing controlled substances because his plea was voluntary and included an appeal waiver). By contrast, other courts of appeals consider challenges to the sufficiency of the factual basis for a plea notwithstanding any appeal waiver in the plea agreement. E.g., United States v. Lloyd, 901 F.3d 111, 117-19 (2d Cir. 2018) (considering defendant's insufficient-factual-basis argument despite appeal waiver); United States v. Trejo, 610 F.3d 308, 312 (5th Cir. 2010) ("[A] valid waiver of appeal does not bar review of a claim that the factual basis for a guilty plea fails to establish the essential elements of the crime of conviction.").

2. The CFAA charges to which applicant pleaded guilty arose from his use of a Hewlett Packard (HP) web-based portal created for discounted, high-volume purchases of HP products for a company's internal use only—not for resale. The plea agreement established that: HP provided login credentials to applicant's business partner; the business partner gave applicant the credentials to make purchases on the portal; and the purchases were not in fact for internal use by a company but for resale. Applicant argued to the Ninth Circuit that such conduct is not a crime in light of Van Buren, which interpreted the same CFAA subsection under which applicant was convicted (§ 1030(a)(2)), making clear that the CFAA "does not cover those who, like Van Buren, have improper motives for obtaining information that is otherwise available to them." 141 S. Ct. at 1652. But the Ninth Circuit refused to even consider whether the facts applicant admitted in the plea agreement established a crime in light of Van Buren, stating that his insufficient-factual-basis argument was waived by the plea agreement. Slip op. at 2-3.

Whether an appellate court may enforce an appeal waiver in a plea agreement to preclude review of a challenge to the sufficiency of the factual basis for a guilty plea when intervening Supreme Court precedent calls into question whether the admitted facts constitute a crime