United States Court of Appeals For the Seventh Circuit ____________________ No. 24-1163 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TAIBIAN HARRIS, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 3:23-cr-29-DRL — Damon R. Leichty, Judge. ____________________

ARGUED SEPTEMBER 25, 2024 — DECIDED JANUARY 8, 2025 ____________________

Before SCUDDER, KIRSCH, and MALDONADO, Circuit Judges. KIRSCH, Circuit Judge. Taibian Harris and his cousin Tre- veon Smith robbed a store during a blizzard. Despite hazard- ous road conditions, Harris drove at excessive speeds and ran through stop signs and red lights after he encountered the po- lice. He ultimately collided with an oncoming police car that had its emergency lights activated when he tried to pass by it on a narrow, snow-covered road. The district court did not clearly err in finding that Harris recklessly created a 2 No. 24-1163 substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer under U.S.S.G. § 3C1.2. I Taibian Harris and Treveon Smith robbed a South Bend cell phone store during a blizzard. Smith entered the store while Harris remained in the car and acted as the getaway driver. Unbeknownst to Harris and Smith, one of the phones Smith took from the store was a bait phone which sent GPS pings of their location to the police. The GPS pings led the po- lice to a gas station, where an officer identified them as possi- ble suspects in the robbery. Harris and Smith left the gas sta- tion a short time later and drove for approximately nine minutes before colliding with an oncoming police car. They were apprehended as they attempted to flee from the collision on foot. Harris and Smith were indicted for robbery under 18 U.S.C. § 1951 and both pled guilty. This appeal only concerns Harris’s sentence. Harris’s Presentence Investigation Report recommended a two-level enhancement for recklessly creat- ing a substantial risk of death or serious bodily injury to an- other person while fleeing law enforcement. See U.S.S.G. § 3C1.2. Harris objected to the enhancement, arguing that there was no reliable evidence he was driving recklessly and that no police officer was ever in actual pursuit of him. To re- but Harris’s objection, the government called Smith as a wit- ness at the sentencing hearing. Smith had not been sentenced yet and hoped he would receive a lighter sentence for cooper- ating against Harris. No. 24-1163 3

Smith described in vivid detail the “high-speed chase” that Harris led the police on after they encountered a police car at the gas station. He testified that Harris was driving fifty or sixty miles per hour through snowy, icy streets, weaving in and out of lanes, and ignoring stop signs and red lights de- spite the hazardous driving conditions. In fact, Smith ex- plained that they decided to commit the robbery because there was a blizzard. They reasoned that the police would have a difficult time catching them given the poor road conditions and lack of visibility. They were right. Although the police car they encountered at the gas station pulled out right after them, Smith said that it was not able to get directly behind them and eventually stopped its pursuit. Later, a second marked police car got within one car’s length of them with its emergency lights activated but also stopped its pursuit after Harris drove through a red light. It was not until a third police car approached from the opposite direction and coll