A Disputed Flight Enhancement Didn't Break an Appeal Waiver

A guidelines error, even a contested one, usually will not get around an appeal waiver. On October 29, 2026, in a published opinion on remand from the Supreme Court, the Fifth Circuit held in United States v. Harris, No. 25-60017, that a 2-level increase for reckless flight under USSG §3C1.2 was not the kind of "miscarriage of justice" that lets a defendant appeal despite a waiver. The court enforced the waiver and dismissed the appeal.

What happened

Rashon Harris pleaded guilty to possession of methamphetamine with intent to distribute under 21 U.S.C. § 841(a) and (b)(1)(C). His plea agreement waived his right to appeal his conviction and sentence "on any ground whatsoever," except for ineffective assistance of counsel claims. He was sentenced to 240 months.

He appealed three guideline increases anyway, including the one for reckless flight. The Fifth Circuit first dismissed the appeal because of the waiver. The Supreme Court then decided Hunter v. United States, 608 U.S. 713 (2026), vacated the Fifth Circuit's judgment and sent the case back.

The Hunter standard

Hunter held that "an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute." The Supreme Court gave three examples: "a sentence exceeding what the relevant statute allows," "a sentence that is infected with a blatant constitutional error," and a sentence "imposed without 'some minimum of civilized procedure.'" It also said that "standard-fare errors in misapplying sentencing law," such as errors in calculating a guidelines range, do not qualify.

What the Fifth Circuit decided

The waiver was knowing and voluntary. Harris argued he could not have understood the waiver because he pleaded guilty the same day as his initial appearance. The court pointed out that he had been indicted on the same charge in October 2023, that the government dismissed that indictment and refiled a single count with his consent, and that he confirmed in court that he had read and understood the waiver. That timing, "in context," did not raise concerns.

The flight increase was not a miscarriage of justice. USSG §3C1.2 adds 2 levels "[i]f the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." Harris drove in reverse and across a residential yard, which he said belonged to his mother and was empty. He argued that no one was actually put in danger.

The court gave two reasons for rejecting that argument. First, the Fifth Circuit has "not limited the application of the [§ 3C1.2] enhancement to situations resulting in actual harm." Second, the sentencing judge held a hearing where two officers and Harris testified, and the testimony showed that Harris's young nephew had recently walked in the area.

Even a wrong call would not have been enough. The court added that even if the increase was a mistake, it would be a "standard-fare error[] in misapplying sentencing law [that] cannot cancel an appeal waiver." The sentence did not exceed the statutory maximum, did not involve a blatant constitutional error, and was not imposed without basic procedure.

A limit on §3C1.2 worth knowing

In a footnote, the court agreed with defense counsel's point at sentencing that the increase does not apply every time someone flees. Quoting circuit precedent, it said "[m]ere flight—even if it results in armed pursuit—does not justify the enhancement." It called the sentencing judge's findings "thin" but held they were enough on this record.

Who it affects

• Anyone weighing a plea agreement with an appeal waiver. Harris shows how narrow the Hunter exception is likely to be in practice. Objections to guideline increases may be the last chance to fight them, so the record built at sentencing matters.
• People facing a §3C1.2 increase. The government must show a substantial risk of death or serious bodily injury to another person, not just flight. Evidence about where the flight happened and who was nearby can decide the issue.
• Defendants outside the Fifth Circuit. Hunter applies in every circuit. Harris is binding only in the Fifth Circuit, but it is an early example of how courts of appeals are applying the new standard.

Our posts on appeal waivers and the offense level explain how these pieces fit together.

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