Full Opinion

GQnited States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED No. 25-30155 October 28, 2026 Thomas B. Plunkett, III Clerk UNITED STATES OF AMERICA, Plaintiff—Appellee, versus JERAD M. BARRETT, Defendant — Appellant. Appeal from the United States District Court for the Eastern District of Louisiana USDC No. 2:23-CR-238-1 PUBLISHED ORDER Before GRAVES, Ho, and DOUGLAS, Circuit Judges. PER CURIAM: This panel previously GRANTED Appellee’s motion to dismiss the appeal. The panel has considered Appellant’s unopposed motion for reconsideration. IT IS ORDERED that the motion is GRANTED. IT IS FURTHER ORDERED that Appellee’s motion to dismiss is CARRIED WITH THE CASE for consideration by a merits panel. No. 25-30155 JAMES C. Ho, Circuit Judge, dissenting: Defendant Jerad Barrett waived his right to appeal his criminal sentence by plea agreement. He appealed anyway, arguing that enforcing his appellate waiver would result in a miscarriage of justice because of the district court’s sentencing errors. The government moved to enforce the plea agreement’s waiver provision and dismiss the appeal. This panel stayed briefing in the case pending the Supreme Court’s decision in Hunter v. United States, 608 U.S. 713 (2026), which recognized the miscarriage of justice exception to appeal waivers that Barrett now asks us to apply. Jd. at 717. Shortly after that decision issued, but before the parties could brief its application, we granted the government’s motion to dismiss without discussion. Barrett now asks us to reconsider that dismissal. Though the government indicated that it did “not oppose this Court reconsidering its prior order to expressly consider Hunter,” it nevertheless asked us to dismiss Barrett’s appeal because enforcing his appellate waiver isn’t a miscarriage of justice under Hunter. agree. So I would grant the motion to dismiss. I. Barrett entered a plea agreement in connection with drug charges filed against him. In exchange for Barrett’s guilty plea, the government agreed to supersede the original indictment and remove references to methamphetamine that carried severe maximum statutory sentences— including up to life imprisonment. In turn, Barrett pled guilty to four drug offenses that he acknowledged carried statutory maximums of 20 years imprisonment. He also agreed not to appeal unless he was sentenced “in excess of the statutory maximum” or wished to raise ineffective assistance of counsel claims. His appeal waiver expressly noted that he was giving up his “right to appeal or contest .. . any aspect of his sentence,” including “the manner in which his sentence was determined.” No. 25-30155 At sentencing, the district court relied on the United States Probation’s presentence report (PSR), which considered the methamphetamine in determining its recommended offense-level calculation. The PSR also contained a leadership enhancement based on Barrett’s allegedly “extensive” drug activity. Those considerations increased Barrett’s sentencing recommendation from a range of 46 to 57 months to a range of 135 to 168 months. Over Barrett’s objections—which he lodged in writing and during his sentencing hearing—the district court adopted the PSR recommendations without change and sentenced Barrett to a within-guidelines term of 135 months imprisonment (about 11 years). Il. On appeal, Barrett faults the district court for three things: First, he says that when calculating his offense-level, the district court wrongly considered the methamphetamine-related drug offenses that were originally included in the indictment but were later dropped as part of plea negotiations. Second, he says the district court considered unreliable information and misinterpreted the Sentencing Guidelines to conclude Barrett deserved a leadership enhancement on account of his “otherwise extensive” criminal drug activity. U.S. SENT’G GUIDELINES MANUAL § 3B1.1(a). Third, he says the district court relied on “unsupported assumptions” in denying his request for a downward variance. These errors, he says, are “blatant” violations of his due process rights that would result in a miscarriage of justice if his appellate waiver is enforced. But the kinds of sentencing errors Barrett raises—the district court’s misapplication of the Guidelines and interpretation of sentencing law, and the faulty information it considered in determining the sentence it would impose—are not the sort of “obvious” and “egregious” errors Hunter articulates. 608 U.S. at 727. The sort that “would bring the judicial system No. 25-30155 into disrepute” and “undermine public confidence in the judiciary.” Jd. As Hunter explained, errors of that type would include a sentence that exceeds the statutory maximum, a sentence based on a constitutionally impermissible factor such as a defendant’s race, or a constitutionally infirm condition of supervised release barring the defendant from getting pregnant, for example. Id. at 728. They would also include sentencing a defendant without “some minimum of civilized procedure”: trial by twelve orangutans or, less absurd, a sentence imposed without affording the defendant any hearing at all. Jd. And while I recognize that Hunter’s examples “are just examples, not intended to be exclusive . . . they serve to illustrate the high bar a defendant must surmount to overcome an appeal waiver.” Id. The district court’s purported sentencing errors, even when taken in the aggregate, are not in this category. Barrett was sentenced well under the statutory maximum of 20 years. He received a hearing and had the opportunity to object to the district court’s sentencing considerations. Nor do the alleged constitutional errors satisfy the miscarriage of justice standard simply because they are framed, in Hunter’s terms, as “blatant” ones. Jd. Rather, the district court’s alleged errors appear to be at most the sort of “unfortunate but inevitable mistakes” bound to occur during the “complex affair” of sentencing that involves “detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors.” Jd. at 727. That is not enough to constitute a miscarriage of justice. Indeed, “|w]hatever else the miscarriage-of justice exception . .. may cover, it does not extend to run-of-the-mill challenges to a district court’s allegedly erroneous calculation of a Guidelines range, or to other such Guidelines errors” as the kind Barrett alleges here. United States y. Mateos, 187 F.4th 36, 39 (2nd Cir. 2026). No. 25-30155 Ill. Barrett can’t satisfy the high bar for finding a miscarriage of justice under Hunter, so I would grant the government’s motion to dismiss now, rather than carry the motion with the case. Delaying decision on the motion deprives the government of the benefit of the bargain that it made by plea agreement. It also obligates the government (and this court) to continue with an appeal that Barrett expressly agreed to waive. The government agreed to offer Barrett “sentencing concessions in return for an assurance that it would not be required to expend valuable time and resources to preserve the finality of the judgment and sentence” that the district court imposed. United States »y. Michelsen, 141 F.3d 867, 873 (8th Cir. 1998). oR I would grant the motion to dismiss the appeal now.