State-Law-at-Conviction Defines “Controlled Substance” for Guideline Predicates; Felon-in-Possession Ban Remains Constitutional Post-Bruen and Post-Rahimi (11th Cir.)

Introduction

In United States v. Tavio McNeary, Jr. (11th Cir. Mar. 31, 2026) (per curiam) (unpublished, non-argument calendar), the Eleventh Circuit summarily affirmed a felon-in-possession conviction and the sentencing court’s treatment of a prior Georgia marijuana conviction as a “controlled substance offense” under the Sentencing Guidelines.

Parties: The United States (Plaintiff–Appellee) versus Tavio Javon McNeary, Jr. (Defendant–Appellant).

Key issues:

  • Guidelines issue: Whether McNeary’s prior Georgia marijuana conviction qualifies as a “controlled substance offense” under U.S.S.G. § 4B1.2(b)(1) (as incorporated through § 2K2.1).
  • Second Amendment issue: Whether 18 U.S.C. §§ 922(g)(1) and 924(a)(8) are unconstitutional facially and as applied.
  • Procedural posture: The government sought summary affirmance on the ground that binding circuit precedent foreclosed both claims.

Summary of the Opinion

The court granted the government’s motion for summary affirmance under Groendyke Transp., Inc. v. Davis, holding that:

  1. McNeary’s Guidelines argument is foreclosed by United States v. Dubois and United States v. Kennedy, which treat a prior state drug conviction as involving a “controlled substance” if the substance is regulated by the state of conviction, and assess the relevant drug definition at the time of the state conviction.
  2. McNeary’s Second Amendment challenges are foreclosed by United States v. Rozier as reaffirmed after New York State Rifle & Pistol Ass'n v. Bruen in Dubois I, and after United States v. Rahimi in Dubois II.

Analysis

Precedents Cited

1) Summary affirmance and inherited precedent

  • Groendyke Transp., Inc. v. Davis, 406 F.2d 1158 (5th Cir. 1969): Sets the standard for summary disposition where one party is “clearly right as a matter of law.” The panel used it as the procedural vehicle to avoid full merits briefing/argument because precedent controlled the outcome.
  • Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc): Makes pre-1981 Fifth Circuit decisions binding in the Eleventh Circuit, thereby importing Groendyke as controlling authority.

2) “Controlled substance offense” under the Guidelines

  • United States v. Bishop, 940 F.3d 1242 (11th Cir. 2019): Supplies the de novo standard for whether a prior conviction qualifies as a controlled substance offense.
  • C.W. v. Department of Human Services, 836 S.E.2d 836 (Ga. Ct. App. 2019): The defendant invoked this Georgia decision for the proposition that marijuana is not a “controlled substance” under Georgia’s definitional cross-reference to schedules. The Eleventh Circuit treated it as insufficient to overcome circuit sentencing precedent, emphasizing that marijuana is nonetheless regulated by Georgia law and thus qualifies under circuit interpretations of the Guidelines term.
  • United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024) (“Dubois I”), cert. granted, vacated, 145 S. Ct. 1041 (2025), reinstated by 139 F.4th 887 (11th Cir. 2025) (“Dubois II”), cert. denied., 2026 WL 135685 (U.S. Jan. 20, 2026):
    • Dubois I resolves two interpretive questions for state predicates: (a) whose law defines “controlled substance” (state law for state convictions), and (b) when to measure it (at the time of the state conviction, not federal sentencing).
    • In McNeary, the panel emphasizes that Dubois I’s “whose law” discussion was a holding (not dicta) because it was necessary to the later “what time” analysis.
  • United States v. Kennedy, 146 F.4th 1054 (11th Cir. 2025): Reinforces that any mismatch between Georgia’s and the CSA’s marijuana definitions does not matter for Guidelines purposes where the prior conviction is a state conviction; the state’s regulation controls. The McNeary panel treats Kennedy as independently dispositive.
  • McNeill v. United States, 563 U.S. 816 (2011): Used in Dubois I to justify a backward-looking approach—measuring predicates as of the time of prior conviction. McNeary relies on Dubois I’s adoption of this logic in the Guidelines context.

3) Prior panel precedent, holdings vs dicta

  • United States v. Gillis, 938 F.3d 1181 (11th Cir. 2019): Sets the prior-panel-precedent rule and defines the scope of a holding (result plus necessary reasoning). The court uses Gillis to reject McNeary’s attempt to relabel Dubois I’s “whose law” analysis as dicta.
  • United States v. Jackson, 55 F.4th 846 (11th Cir. 2022): Clarifies that matters that “lurk in the record” are not precedential and “assumptions are not holdings.” The panel cites it to frame the holding/dicta inquiry but ultimately concludes Dubois I and Kennedy squarely decided the questions presented.
  • Bravo v. United States, 532 F.3d 1154 (11th Cir. 2008): Establishes that alternative holdings are binding, limiting efforts to evade precedent by characterizing parts of a prior decision as nonbinding.

4) Standards of review, jurisdiction, and post-plea constitutional challenges

  • United States v. Wright, 607 F.3d 708 (11th Cir. 2010) and United States v. Turner, 474 F.3d 1265 (11th Cir. 2007): Provide the framework for plain-error review when an issue was not raised below. The panel ultimately bypasses the dispute over de novo vs plain error because McNeary loses even under de novo.
  • United States v. Moore, 22 F.4th 1258 (11th Cir. 2022): Limits plain error to issues directly resolved by Supreme Court or Eleventh Circuit precedent when the text is not dispositive.
  • United States v. Cotton, 535 U.S. 625 (2002); United States v. Iguaran, 821 F.3d 1335 (11th Cir. 2016); McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001); United States v. Brown, 752 F.3d 1344 (11th Cir. 2014); United States v. Moore, 954 F.3d 1322 (11th Cir. 2020): These cases collectively distinguish jurisdictional defects from merits defects and explain when an indictment suffices to invoke federal criminal jurisdiction under 18 U.S.C. § 3231. While not outcome-determinative here, they frame the court’s approach to constitutional/statutory challenges in criminal appeals.
  • Class v. United States, 583 U.S. 174 (2018): Confirms that a guilty plea does not bar a defendant from challenging the constitutionality of the statute of conviction on direct appeal. The panel uses this to confirm McNeary’s ability to raise his Second Amendment argument notwithstanding his plea.
  • United States v. Williams, 341 U.S. 58 (1951): States that even if a statute is unconstitutional, that does not “oust” jurisdiction; the panel cites it in its jurisdiction discussion.

5) Second Amendment framework and felon dispossession

  • District of Columbia v. Heller, 554 U.S. 570 (2008): Recognizes an individual right but describes “longstanding prohibitions” on felon firearm possession as “presumptively lawful.” The Eleventh Circuit’s felon-in-possession precedent is anchored in this language.
  • McDonald v. City of Chicago, 561 U.S. 742 (2010): Incorporates the Second Amendment against the states and reiterates Heller’s assurances about felon prohibitions.
  • United States v. Rozier, 598 F.3d 768 (11th Cir. 2010) (per curiam): The circuit’s foundational holding rejecting Second Amendment challenges to § 922(g)(1), reasoning that felons are disqualified from the protected class. McNeary treats Rozier as binding on both facial and as-applied attacks.
  • New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022): Replaces means-end scrutiny with a text-and-history test. McNeary, following Dubois I, reads Bruen as not abrogating Rozier because Bruen repeatedly describes the right as belonging to “law-abiding, responsible citizens.”
  • United States v. Rahimi, 602 U.S. 680 (2024): Upholds § 922(g)(8) and reiterates Heller’s “presumptively lawful” language regarding felons. The court uses Rahimi (via Dubois II) as reinforcing rather than undermining Rozier.
  • Dubois II, 139 F.4th 887 (11th Cir. 2025): After a Supreme Court GVR in light of Rahimi, the Eleventh Circuit reinstates its earlier reasoning and reaffirms that § 922(g)(1) remains constitutional under circuit law. This is the direct post-Rahimi precedent that forecloses McNeary’s Second Amendment claims.

Legal Reasoning

A) The Guidelines holding: state law (and time of conviction) controls for state predicates

The court treats McNeary’s controlled-substance argument as foreclosed by Dubois I and Kennedy. The operative reasoning is:

  • The Guidelines definition in U.S.S.G. § 4B1.2(b)(1) covers offenses “under federal or state law” regulating specified drug trafficking conduct. Under Dubois I, for state convictions, the “controlled substance” inquiry is answered by state law (the “whose law” question).
  • Also under Dubois I, courts assess the relevant drug definition at the time of the prior state conviction, not at the time of federal sentencing (the “what time” question), drawing on McNeill v. United States for a backward-looking interpretive approach.
  • McNeary attempted to avoid Dubois I by arguing its “whose law” discussion was dicta; the panel rejects that, explaining (citing United States v. Gillis) that the “whose law” determination was necessary to Dubois I’s timing analysis and thus part of the holding. In any event, United States v. Kennedy is treated as clearly holding the same “state law for state predicate” rule.
  • The panel also rejects McNeary’s reliance on C.W. v. Department of Human Services and Georgia’s definitional statute by emphasizing the circuit’s functional rule: where Georgia law regulates marijuana (e.g., O.C.G.A. § 16-13-30(j)(1)), that suffices for Guidelines purposes under Dubois/Kennedy.

B) The Second Amendment holding: § 922(g)(1) remains constitutional; § 924(a)(8) falls with it

On the constitutional claims, the panel’s reasoning is straightforward stare decisis:

  • Facial challenge: Foreclosed by United States v. Rozier, reaffirmed after Bruen and after Rahimi in Dubois II. The court reads Dubois II as dispositive that neither Bruen nor Rahimi abrogates Rozier.
  • As-applied challenge: Foreclosed because Rozier treats felon disarmament as permissible “regardless of the particular circumstances” of the defendant; once McNeary admitted the felon element, he fell within the disqualified class under controlling circuit law.
  • § 924(a)(8): The panel treats the penalty provision as constitutionally permissible because it operates only in conjunction with the valid substantive prohibition; thus the same precedent defeating the § 922(g)(1) challenge defeats the § 924(a)(8) challenge.

Impact

1) Sentencing consequences for Georgia marijuana priors

Although unpublished, the decision signals continued, routine application of Dubois I and Kennedy: Georgia marijuana convictions—despite state definitional cross-references that defendants may invoke via C.W. v. Department of Human Services—remain usable as “controlled substance offense” predicates under the Eleventh Circuit’s interpretation of U.S.S.G. § 4B1.2(b)(1) (and thus enhancements such as § 2K2.1(a) and the career-offender framework).

2) Reinforcement of the “holding vs dicta” boundary in precedent avoidance arguments

McNeary underscores a practical appellate point: where a prior panel frames an interpretive choice (here, “whose law”) as necessary to reach a later conclusion (here, “what time”), later panels will treat the earlier discussion as a binding holding under United States v. Gillis, not dicta.

3) Second Amendment litigation in the Eleventh Circuit post-Rahimi

McNeary adds to the post-United States v. Rahimi line in the Eleventh Circuit: until the Supreme Court gives “clearer instruction” (the phrase used in Dubois II), United States v. Rozier continues to foreclose both facial and as-applied challenges to 18 U.S.C. § 922(g)(1).

Complex Concepts Simplified

  • Summary affirmance: A streamlined appellate decision used when existing law makes the outcome clear (from Groendyke Transp., Inc. v. Davis).
  • Categorical approach: A method that looks to the statutory elements of the prior offense (and the least culpable conduct criminalized), not the defendant’s actual conduct, when deciding if a prior conviction counts for a federal enhancement (applied in Dubois I).
  • Prior panel precedent rule: A later three-judge panel must follow an earlier panel’s holding unless the Supreme Court or the Eleventh Circuit sitting en banc overrules it (from United States v. Gillis).
  • Holding vs dicta: A “holding” is the reasoning necessary to the result; “dicta” is extra commentary not needed to decide the case. Holdings bind later panels; dicta does not (discussed via United States v. Gillis, United States v. Jackson, and Bravo v. United States).
  • Facial vs as-applied challenge: A facial challenge argues the law is invalid in all applications; an as-applied challenge argues it is unconstitutional as applied to the specific defendant. Under Rozier (as reaffirmed in Dubois II), both fail for § 922(g)(1) in this circuit.

Conclusion

United States v. Tavio McNeary, Jr. is a precedent-application decision: it summarily affirms because binding Eleventh Circuit law already settles both disputes. On sentencing, it applies Dubois I and Kennedy to reaffirm that for state predicates the Guidelines’ “controlled substance” inquiry turns on state regulation measured at the time of the state conviction—even where defendants point to state-law definitional wrinkles like those discussed in C.W. v. Department of Human Services. On the Second Amendment, it applies Rozier as reaffirmed in Dubois II to reject facial and as-applied challenges to § 922(g)(1) (and, by extension, its penalty provision § 924(a)(8)).