Faisal Ashraf, aka Sal v. United States

Petitioner pleaded guilty to three counts under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, pursuant to a plea agreement that included an appeal waiver. After petitioner’s plea, this Court decided Van Buren v. United States, 141 S. Ct. 1648 (2021), which petitioner believed rendered the factual basis for his plea insufficient as a matter of law. He timely appealed, but the Ninth Circuit held that the plea agreement’s appeal waiver precluded his factual-basis challenge. Rule 11(b)(3) of the Federal Rules of Criminal Procedure requires a district court to confirm the sufficiency of the factual basis for a plea agreement before accepting a guilty plea—furthering the due process requirement that a plea be truly voluntary. McCarthy v. United States, 394 U.S. 459, 466-67 (1969). The federal courts of appeals conflict over their obligation to confirm the sufficiency of a guilty plea’s factual basis when a plea agreement includes an appeal waiver. The First, Second, Fourth, Fifth, and Eleventh Circuits hold that they cannot refuse to consider factual-basis challenges even when the agreement includes an appeal waiver, whereas the Ninth Circuit below, as well as the Tenth and D.C. Circuits, hold that an appeal waiver allows them to refuse to consider such arguments. The Question Presented is: Whether the federal courts of appeals 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.