Supplemental Brief — Jaqwon Davonte Lupe, Petitioner v. United States

No. 25-7348

IN THE

Supreme Court of the United States

JAQWON DAVONTE LUPE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

PETITIONER’S SUPPLEMENTAL BRIEF

Brent Evan Newton

Counsel of Record

19 Treworthy Road

Gaithersburg, MD 20878

(202) 975-9105

Appointed Counsel for Petitioner

SUPPLEMENTAL BRIEF

Pursuant to Supreme Court Rule 15.8, petitioner, Jaqwon Lupe, submits this

supplemental brief. Petitioner’s case currently is scheduled to be conferenced by

this Court on September 28, 2026.

Petitioner seeks this Court’s review of the Ninth Circuit motion panel’s dismissal of petitioner’s appeal based on the provision in petitioner’s plea agreement

that waived his right to challenge his conviction. On June 10, 2026, respondent

recommended that this Court hold the certiorari petition pending this Court’s decision in Hunter v. United States, No. 24-1063. See Memorandum for the United

States, at 2 (“Because the Court’s decision in Hunter may affect the proper disposition of the petition for a writ of certiorari, the petition in this case could be held

pending the decision in Hunter and then disposed of as appropriate in light of that

decision.”).

On June 18, 2026, this Court rendered its decision in Hunter. It held “an

appeal waiver is unenforceable when it would result in a miscarriage of justice”

and that “[t]he waiver may be set aside only if the sentence is marred by the kind

of egregious error that would bring the judicial system into disrepute.” Hunter v.

United States, 146 S. Ct. 1702, 1713 (2026).

After Hunter, this Court has refused to grant certiorari, vacate the lower

court’s judgment, and remand for reconsideration (“GVR”) in light of Hunter in

other cases where the petitioners only had challenged their convictions (as opposed

to separately having challenged their sentences) on appeal. See Jones v. United

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States, 609 U.S. ___, 2026 WL 1871495, at *1 (June 30, 2026) (Sotomayor, J., respecting the denial of certiorari); Blaise v. United States, No. 25-6627, 2026 WL

1855029 (June 29, 2026).1

Although petitioner contends that this Court should grant certiorari and afford plenary review to the important merits issue raised in his petition concerning

Indian Country, at the very least this Court should GVR his case in light of Hunter.

Although there may be good reasons for distinguishing between some challenges

to a criminal conviction and challenges to a criminal sentence with respect to

Hunter’s “miscarriage of justice” exception, there is no reason to distinguish between the two in petitioner’s case. A defendant’s actual innocence of the offense of

conviction unquestionably qualifies as a “miscarriage of justice” under any definition. See Sawyer v. Whitley, 505 U.S. 333, 360 (1992) (Stevens, J., concurring,

joined by Blackmun & O’Connor, JJ., concurring in judgment) (“[T]he conviction of

an innocent person [is] the archetypal case of a manifest miscarriage of justice....”);

see also McQuiggin v. Perkins, 569 U.S. 383, 399 (2013); Bousley v. United States,

523 U.S. 614, 624 (1998); Schlup v. Delo, 513 U.S. 298, 327 (1995); Kuhlmann v.

Wilson, 477 U.S. 436, 545 (1986).

1 In Blaise, the Ninth Circuit dismissed the petitioner’s appeal challenging only

one of his convictions based on an appellate waiver in his plea agreement. The United

States responded to Blaise’s petition for certiorari in the same manner as it responded

to petitioner’s petition. See Memorandum for the United States (No. 25-6627), at 2

(“Because the Court’s decision in Hunter could conceivably affect the proper disposition of the petition for a writ of certiorari, the petition in this case could be held pending the decision in Hunter and then disposed of as appropriate in light of that decision.”).

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It is also significant that, in Hunter, this Court’s discussion of the “miscarriage of justice” standard employed the same language appearing in this Court’s

“plain error” jurisprudence – in particular, the Court’s references to “obvious” errors and those “that would bring the judicial system into disrepute” or “undermine

public confidence in the judiciary.” Hunter, 146 S. Ct. at 1713. According to the

canonical definition, “plain errors” are “‘clear’ or … ‘obvious’” errors raised for the

first time on appeal that warrant correction if they “seriously affect the fairness,

integrity or public reputation of judicial proceedings.” United States v. Olano, 507

U.S. 725, 734, 736 (1993) (emphasis added). Moreover, in Olano, this Court stated

that the discretion to reverse convictions for plain error “should be employed in

those circumstances in which a miscarriage of justice would otherwise result.” Id.

at 736 (citations and internal quotation marks omitted) (emphasis added). This

Court stated in Olano that a defendant’s “actual innocence” clearly satisfies the

requirements for a reversal of his conviction under the plain error standard:

The court of appeals should no doubt correct a plain forfeited error that

causes the conviction or sentencing of an actually innocent defendant,

see, e.g., Wiborg v. United States, 163 U.S. 632 (1896), but we have never

held that a Rule 52(b) remedy is only warranted in cases of actual innocence.

Id. at 736.

Regarding this Court’s GVR practice, this Court has stated that:

Where … 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, a GVR order is, we believe, potentially appropriate.

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Lawrence v. Chater, 516 U.S. 163, 167-168 (1996) (per curiam). In addition, this

Court has stated that it is even more willing in criminal cases to afford relief by way

of a GVR:

Finally, it is not insignificant that this is a criminal case. When a litigant

is subject to the continuing coercive power of the Government in the

form of imprisonment, our legal traditions reflect a certain solicitude for

his rights, to which the important public interests in judicial efficiency

and finality must occasionally be accommodated.

Stutson v. United States, 516 U.S. 193, 196 (1996) (per curiam).

This Court’s decision in Hunter is such a recent development in petitioner’s

case warranting a GVR. If the Ninth Circuit reconsiders petitioner’s appeal in light

of Hunter, there is a reasonable probability that the Ninth Circuit will transfer petitioner’s case from the motions panel to a merits panel to afford meaningful consideration to petitioner’s substantial argument about the effect of Oklahoma v. CastroHuerta, 597 U.S. 629 (2022), on Ninth Circuit precedent that had relied on the dicta

in Williams v. United States, 327 U.S. 711, 713-14 (1946),2 that this Court rejected in

Castro-Huerta.

See, e.g., United States v. Smith, 925 F.3d 410, 413-14 (9th Cir. 2019) (following

Williams to conclude that Indian Country is generally within the special maritime

and territorial jurisdiction of the United States).

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