Louisiana Marijuana Predicates (Including Hemp) Do Not Support Career-Offender Status Under U.S.S.G. § 4B1.1 When Broader Than the CSA

1. Introduction

In United States v. Kimmons (5th Cir. June 3, 2026) (per curiam) (unpublished), Timothy O. Kimmons appealed (i) the denial of his motion to suppress methamphetamine discovered during a pat down at a traffic stop and (ii) the sentence imposed following his conditional guilty plea to possessing methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(viii).

The case presented two recurring federal criminal issues:

  • Fourth Amendment/Terry issue: whether an officer had reasonable suspicion that Kimmons was armed and dangerous, justifying a frisk during an otherwise valid traffic stop.
  • Federal sentencing issue: whether Kimmons was correctly treated as a career offender under U.S.S.G. § 4B1.1, and whether the correct statutory mandatory minimum was applied under 21 U.S.C. § 841(b)(1)(A).

2. Summary of the Opinion

The Fifth Circuit issued a split disposition:

  • Suppression: Affirmed. The court held that, under the totality of circumstances, the officer had reasonable suspicion that Kimmons was armed, so the pat down was lawful and the methamphetamine was not subject to suppression.
  • Sentencing: Vacated and remanded. The court held the district court erred by applying the career-offender enhancement because Kimmons’s prior marijuana convictions were not “controlled substance offenses” under the Guidelines as interpreted through the federal Controlled Substances Act (CSA), consistent with United States v. Minor. The panel also remanded for the district court to consider whether Kimmons’s prior CDS I conspiracy conviction qualified as a “serious drug felony” for purposes of § 841(b)(1)(A), noting record uncertainty as to the substance involved.

3. Analysis

A. Precedents Cited

1) Standards of review in suppression appeals

  • United States v. Walker, 49 F.4th 903 (5th Cir. 2022): supplied the framework—factual findings reviewed for clear error, legal conclusions de novo, and evidence viewed in the Government’s favor as the prevailing party.
  • United States v. Contreras, 905 F.3d 853 (5th Cir. 2018): reinforced appellate deference—denial of suppression is upheld if any reasonable view of the evidence supports it.

2) Fourth Amendment baseline and the Terry exception

  • United States v. Kelly, 302 F.3d 291 (5th Cir. 2002) (quoting United States v. Roberts, 274 F.3d 1007 (5th Cir. 2001)): reiterated the general rule that warrantless searches are per se unreasonable absent a recognized exception.
  • Terry v. Ohio, 392 U.S. 1 (1968): provided the doctrinal anchor for a limited protective frisk during an investigatory stop when an officer reasonably suspects the person is armed and dangerous.
  • United States v. Michelletti, 13 F.3d 838 (5th Cir. 1994) (en banc): supplied the Fifth Circuit’s articulation of the frisk standard—officers need not be certain; the question is whether a reasonably prudent person would believe safety is in danger based on specific, articulable facts.

3) Drug-trafficking context and reasonable suspicion that a suspect is armed

  • United States v. Dixon, 132 F.3d 192 (5th Cir. 1997): recognized that weapons are “tools of the drug trade,” supporting an inference of danger in drug-trafficking contexts.
  • United States v. Majors, 328 F.3d 791 (5th Cir. 2003) (per curiam): held that an officer’s knowledge of a person’s history of narcotics and weapons offenses can support a reasonable belief the person might be armed.
  • Illinois v. Wardlow, 528 U.S. 119 (2000): confirmed that location, suspect behavior, and officer experience are relevant in reasonable-suspicion analysis.
  • United States v. McKinney, 980 F.3d 485 (5th Cir. 2020): recognized nervous behavior as a supporting factor for reasonable suspicion.

4) Career-offender predicates and the CSA-based categorical approach

  • United States v. Minor, 121 F.4th 1085 (5th Cir. 2024): was the decisive sentencing precedent. Minor applied the categorical approach and held that when a state marijuana statute included “hemp” (after federal law removed hemp from the CSA definition of marijuana via the Agriculture Improvement Act), the state offense covered more conduct than the Guidelines’ “controlled substance offense” definition as measured against the CSA—therefore it could not be a career-offender predicate.

5) Remand necessity when Guidelines error may have affected the sentence

  • United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc) (quoting United States v. Garcia-Quintanilla, 574 F.3d 295 (5th Cir. 2009)): supported remand because an error that increases the sentence can affect substantial rights when there is a reasonable probability of a lower sentence absent the error—especially where the district court did not announce an alternative sentence or indicate it would impose the same sentence regardless of the Guidelines range.

B. Legal Reasoning

1) Why the frisk was upheld

The court treated the pat down as a Terry protective frisk and evaluated whether the officer had reasonable suspicion that Kimmons was armed and dangerous. The panel emphasized the totality of circumstances, including:

  • A narcotics agent’s information that Kimmons was a large-scale methamphetamine distributor returning from a resupply trip;
  • The agent’s warning that Kimmons was possibly armed;
  • The officer’s knowledge (from the agent) of Kimmons’s prior convictions including felony drug offenses and resisting an officer with force;
  • The officer’s experience-based inference—supported by United States v. Dixon—that weapons commonly accompany trafficking quantities of narcotics;
  • Contextual factors: the stop at ~11:00 p.m. in a deserted area, and Kimmons’s nervous demeanor and apparent scanning of surroundings (with Illinois v. Wardlow and United States v. McKinney supporting reliance on behavior and environment).

Even though the pat down revealed a “solid object” that turned out to be a brick of methamphetamine rather than a weapon, the legality turned on whether the frisk was justified at its inception—not on the officer being correct about the object.

2) Why the career-offender sentence was vacated

The panel’s sentencing analysis turned on the Guidelines definitions and the Fifth Circuit’s CSA-referenced categorical approach:

  • Under U.S.S.G. § 4B1.1(a), career-offender status requires at least two prior felony convictions that qualify as either crimes of violence or controlled substance offenses.
  • Under U.S.S.G. § 4B1.2(b), a “controlled substance offense” is an offense prohibiting certain conduct with a “controlled substance.”
  • Under United States v. Minor, the Fifth Circuit identifies “controlled substance” by reference to the Controlled Substances Act and applies the categorical approach. If the state statute criminalizes more conduct than the federal definition (here, because the state definition included hemp), the conviction does not qualify.

Applying Minor, the court accepted the Government’s concession that Kimmons’s Louisiana marijuana convictions were not qualifying controlled substance offenses because Louisiana’s definition included hemp at the relevant time. That removed at least part of the predicate foundation for the career-offender enhancement, rendering the Guidelines range used at sentencing erroneous.

The court then found remand appropriate because the district court adopted the PSR’s range and did not announce an alternative range or state it would impose the same sentence regardless of the Guidelines error, consistent with United States v. Escalante-Reyes.

3) Why the statutory-minimum question was remanded (not decided)

The panel also sent back for consideration whether Kimmons’s prior conspiracy to distribute a Schedule I CDS offense qualifies as a “serious drug felony” triggering a 15-year minimum under 21 U.S.C. § 841(b)(1)(A). The court did not resolve the merits because:

  • it was unclear from the record what substance was at issue in that CDS I conviction,
  • the district court did not focus on the statutory-minimum dispute at sentencing, and
  • the Government did not oppose consideration on remand in light of documents supplemented in the appellate record.

C. Impact

1) Sentencing: narrowing career-offender exposure for certain state marijuana convictions

The opinion reinforces (and operationalizes) United States v. Minor in a common Fifth Circuit setting: Louisiana drug history used to drive federal Guidelines enhancements. Practically, it signals:

  • PSR and litigation consequences: probation offices and parties must carefully compare the elements/definitions of prior state drug offenses to the CSA-controlled substance schedules as of the relevant time.
  • Increased frequency of resentencings: defendants sentenced as career offenders based on marijuana predicates under state definitions that included hemp may have strong arguments for correction (subject to procedural posture and preservation rules).
  • Range-driven sentencing sensitivity: the remand underscores that when a district court anchors a sentence to an erroneous Guidelines range without an alternative sentence explanation, appellate courts are more likely to vacate.

2) Fourth Amendment: confirming a robust totality-of-circumstances basis for protective frisks

On suppression, the opinion exemplifies how the Fifth Circuit aggregates: (i) drug-trafficking intelligence, (ii) prior violent or force-related history, (iii) situational danger (late night, deserted area), and (iv) observed nervousness, to uphold a frisk. The holding may encourage law enforcement to document each factor to show “specific and articulable facts” under United States v. Michelletti.

3) Statutory minimum litigation: “serious drug felony” will remain fact- and document-dependent

By remanding the “serious drug felony” dispute, the panel highlights that § 841(b)(1)(A) enhancements can turn on the precise nature of the prior conviction and what reliable conviction documents show—especially where the record does not clearly identify the controlled substance involved.

4. Complex Concepts Simplified

  • Terry frisk: A limited pat down of outer clothing for weapons during a stop, allowed when an officer can point to specific facts indicating the person may be armed and dangerous.
  • Reasonable suspicion: A common-sense, evidence-based level of suspicion that is less than probable cause; courts look at the whole situation rather than any single fact.
  • Categorical approach: A method for deciding whether a prior conviction qualifies as a sentencing predicate by comparing the statute of conviction (its elements/coverage) to the federal definition—without relitigating what the defendant actually did in that past case.
  • Career-offender enhancement (U.S.S.G. § 4B1.1): A Guidelines rule that can greatly increase the sentencing range when a defendant has specified qualifying prior convictions.
  • Why “hemp” matters: If a state marijuana law includes hemp while the CSA does not (after federal changes), the state law can be “broader,” meaning convictions under it may not match the federal “controlled substance” concept for Guidelines purposes.
  • Statutory mandatory minimum vs. Guidelines range: The mandatory minimum is set by statute and cannot be undercut absent a legal mechanism; the Guidelines range is advisory but influential. Errors in either can require resentencing.

5. Conclusion

United States v. Kimmons delivers two core takeaways. First, it affirms that a protective frisk is lawful when drug-trafficking intelligence, prior force-related history, and contextual danger factors combine to create reasonable suspicion that a suspect is armed. Second, it vacates a career-offender sentence by applying United States v. Minor to exclude Louisiana marijuana predicates that are categorically broader than the CSA because they encompassed hemp—reinforcing a concrete pathway to resentencing when the Guidelines range was inflated by non-qualifying drug convictions. The remand on the “serious drug felony” question further underscores the document- and substance-specific nature of § 841(b)(1)(A) enhancements.