State Law at the Time of the Prior Conviction Controls: Eleventh Circuit Reaffirms Dubois Rule for Guidelines “Controlled Substance Offense” Predicates

State Law at the Time of the Prior Conviction Controls: Eleventh Circuit Reaffirms Dubois Rule for Guidelines “Controlled Substance Offense” Predicates

Introduction

In United States v. Jacklin Cheramy, No. 22-13841 (11th Cir. Nov. 7, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed a 108‑month sentence imposed for possession of a firearm by a convicted felon and aggravated identity theft. The central dispute concerned the calculation of the defendant’s base offense level under U.S.S.G. § 2K2.1. The district court set the base offense level at 24 under § 2K2.1(a)(2) based on two Florida drug convictions from 2006. Cheramy argued those convictions could not serve as “controlled substance offenses” because Florida’s definitions at the time covered substances broader than those controlled under the federal Controlled Substances Act (CSA) by the time of his federal sentencing (notably, hemp and ioflupane I123).

The Eleventh Circuit rejected that argument as foreclosed by its published decision in United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024) (Dubois I), which was reinstated on remand in United States v. Dubois, 139 F.4th 887 (11th Cir. 2025) (Dubois III). The court reiterated that, for purposes of the Guidelines’ definition of “controlled substance offense,” the relevant question is whether the drug was controlled under state law at the time of the prior state conviction—not whether it matched federal schedules at the time of federal sentencing or later.

Summary of the Opinion

Applying de novo review, the panel held that Cheramy’s 2006 Florida convictions for cocaine and marijuana qualify as “controlled substance offenses” under U.S.S.G. § 4B1.2(b), as incorporated by § 2K2.1, and thus support a base offense level of 24 under § 2K2.1(a)(2). The court explained:

  • Under the Eleventh Circuit’s prior-panel-precedent rule, the panel is bound by Dubois I—reinstated as Dubois III—unless abrogated by the Supreme Court or the en banc court.
  • Dubois holds that “a ‘controlled substance’ under § 4B1.2’s definition of ‘controlled substance offense’ is, for prior state offenses, a drug regulated by state law at the time of the conviction, even if it is not federally regulated, and even if it is no longer regulated by the state at the time of federal sentencing.”
  • Consequently, Cheramy’s timing argument—that only the drug schedules in effect at the time of his federal sentencing matter—is foreclosed.

The court therefore affirmed the sentence.

Analysis

Precedents Cited and Their Influence

  • United States v. Dubois (Dubois I), 94 F.4th 1284 (11th Cir. 2024): The cornerstone precedent. Dubois established that “controlled substance” in § 4B1.2(b) refers to a drug controlled by state law at the time of the prior state conviction. It rejected tethering the Guidelines’ definition to the federal CSA or to later changes in state law.
  • United States v. Dubois (Dubois II), 145 S. Ct. 1041 (2025): The Supreme Court granted certiorari, vacated, and remanded Dubois I for reconsideration in light of United States v. Rahimi, 602 U.S. 680 (2024). This GVR did not direct reconsideration of the drug-definition issue; rather, it concerned Second Amendment challenges to 18 U.S.C. § 922(g).
  • United States v. Dubois (Dubois III), 139 F.4th 887 (11th Cir. 2025): On remand from the GVR, the Eleventh Circuit rejected the Second Amendment challenge to § 922(g) consistent with Rahimi and reinstated Dubois I in full, including the time-of-conviction rule for controlled substances. This reinstatement restored Dubois I as binding precedent.
  • United States v. Smith, 775 F.3d 1262 (11th Cir. 2014): The court held Florida § 893.13 convictions are both “serious drug offenses” under the ACCA and “controlled substance offenses” under § 4B1.2(b). Importantly, Smith rejected importing a generic federal definition or federal analog requirement into § 4B1.2(b); the Guideline’s text looks to “offense under federal or state law,” not a federal schedule.
  • United States v. Pridgeon, 853 F.3d 1192 (11th Cir. 2017): Reaffirmed Smith’s reading, declining to require alignment with federal CSA schedules to qualify a Florida § 893.13 conviction as a “controlled substance offense.” Also cited for the de novo standard governing Guidelines issues (n.2).
  • United States v. Laines, 69 F.4th 1221 (11th Cir. 2023): Confirmed the categorical approach is generally used to assess whether a prior state conviction qualifies under the Guidelines; the inquiry is into statutory elements, not case-specific facts.
  • United States v. Frazier, 89 F.3d 1501 (11th Cir. 1996) and United States v. Seabrooks, 839 F.3d 1326 (11th Cir. 2016): Illustrate analyzing the version of the state statute in effect at the time of the defendant’s prior conviction, dovetailing with Dubois’s temporal focus.
  • United States v. Bishop, 940 F.3d 1242 (11th Cir. 2019): Cited for the de novo standard of review when deciding whether a prior conviction qualifies as a controlled substance offense.
  • Prior-panel-precedent cases: United States v. Archer, 531 F.3d 1347 (11th Cir. 2008); United States v. Gillis, 938 F.3d 1181 (11th Cir. 2019); Tippitt v. Reliance Standard Life Ins. Co., 457 F.3d 1227 (11th Cir. 2006); and United States v. Jackson, 55 F.4th 846 (11th Cir. 2022), aff’d in Brown v. United States, 602 U.S. 101 (2024). These establish that a later panel must follow a prior panel’s published holding unless abrogated by the Supreme Court or en banc; arguments not addressed earlier cannot be used to sidestep binding precedent; and issues that “merely lurk” in the record are not established holdings.
  • United States v. Rahimi, 602 U.S. 680 (2024): Although Rahimi addresses Second Amendment challenges to § 922(g), its resolution led the Supreme Court to GVR Dubois I. On remand, the Eleventh Circuit reinstated Dubois, thereby solidifying the time-of-conviction rule applied in Cheramy.

Legal Reasoning

The court’s reasoning proceeds in two interlocking steps: (1) identify the controlling legal framework for “controlled substance offense” under the Guidelines, and (2) apply the Eleventh Circuit’s prior-panel-precedent rule to resolve the timing and breadth arguments.

  1. Guidelines framework and the categorical approach
    • U.S.S.G. § 2K2.1(a)(2) sets a base offense level of 24 if the defendant has two qualifying prior convictions for either a “crime of violence” or a “controlled substance offense.”
    • Section 2K2.1 incorporates the definition of “controlled substance offense” found in § 4B1.2(b), which covers any offense under federal or state law, punishable by more than one year, that prohibits manufacturing, distributing, dispensing, or possessing with intent to distribute a controlled substance.
    • The court “generally engage[s] in the categorical approach,” focusing on the statutory elements of the prior offense rather than the facts. The relevant statute is the version in effect when the defendant sustained the prior conviction, as reflected in Frazier and Seabrooks.
  2. State-law breadth and timing after Dubois
    • State breadth vs. federal CSA: In Smith and Pridgeon, the Eleventh Circuit rejected the notion that § 4B1.2(b)’s “controlled substance offense” requires alignment with the federal CSA. The Guideline text refers to “offense under federal or state law,” and does not incorporate a federal schedule by cross-reference. The “overbreadth” argument therefore misfires, because the Guidelines do not demand a federal analogue.
    • Which temporal snapshot? Dubois answers the “when” question definitively: look to state law at the time of the prior conviction. Even if the drug was never on the federal schedule or is later decontrolled by state or federal law, a state conviction for distributing or possessing with intent a drug that was controlled under state law at the time qualifies under § 4B1.2(b).
    • Binding effect notwithstanding GVR: Although the Supreme Court GVR’d Dubois I in light of Rahimi, the Eleventh Circuit on remand rejected the Second Amendment challenge to § 922(g) and expressly reinstated Dubois I’s analysis (Dubois III). Under Archer and its progeny, Dubois is binding prior-panel precedent. The panel in Cheramy thus could not revisit the time-of-conviction rule.

Applying these principles to the statutes discussed in the opinion:

  • Florida marijuana/cannabis: At the time of Cheramy’s 2006 convictions, Florida defined “cannabis” broadly (Fla. Stat. § 893.02(3)), and § 893.13(1)(a) criminalized selling, manufacturing, delivering, or possessing with intent to do so. Florida later excluded “hemp” in 2019 (id. §§ 893.02(3), 581.217(3)(d)), while the federal CSA excluded “hemp” in 2018 (21 U.S.C. § 802(16)(B)(i); 7 U.S.C. § 1639o(1)). Under Dubois, these later state and federal changes do not alter the qualification of the 2006 convictions.
  • Florida cocaine: In 2008, Florida defined cocaine to include “cocaine or ecgonine, including any of their stereoisomers” (Fla. Stat. § 893.03(2)(a)(4)), and it removed ioflupane from that definition in 2017. Federally, ioflupane was removed from the controlled schedules by regulation in 2015 (21 C.F.R. § 1308.12(b)(4)(ii)). Again, Dubois forecloses relying on these later changes; the question is whether the drug was controlled under Florida law at the time of the 2006 convictions.

Because both prior convictions were sustained under Florida law prohibiting distribution/possession with intent of substances controlled by Florida at that time, they are “controlled substance offenses” for § 4B1.2(b) purposes. That conclusion compels a base offense level of 24 under § 2K2.1(a)(2).

Impact and Implications

  • Stabilizing the time-of-conviction rule in the Eleventh Circuit: By treating Dubois III as binding and applying it without modification, Cheramy confirms that district courts within the Eleventh Circuit must evaluate predicate drug offenses under the state law as it existed when the defendant was convicted, irrespective of subsequent state or federal scheduling changes.
  • Guidelines calculations in firearms and career offender cases: The decision affects not only § 2K2.1 calculations but also any Guidelines provision that uses § 4B1.2(b), including the career offender guideline. Defendants cannot avoid predicate status by pointing to later descheduling of substances like hemp or ioflupane or by arguing for federal CSA alignment.
  • Limited utility of “overbreadth” attacks premised on federal schedules: In the Eleventh Circuit, arguments that a state’s drug schedules were broader than the federal CSA will not defeat predicate status under § 4B1.2(b). Unless and until overruled en banc or by the Supreme Court, Smith, Pridgeon, and Dubois foreclose such challenges.
  • Practice guidance:
    • Prosecutors should anchor their predicate showings to the text of the state statute and schedules at the time of the prior conviction. Certified copies of convictions and historical statutory/schedule excerpts are key.
    • Defense counsel should focus on truly elemental mismatches under the categorical approach (e.g., whether the statute covers conduct beyond § 4B1.2(b), such as mere offers to sell or fraud-based “delivery” definitions, if applicable), rather than on later schedule changes or federal-schedule disparities.
  • Second Amendment backdrop resolved: The opinion acknowledges the procedural detour through Rahimi that led to the reinstatement of Dubois. With Dubois restored, panels can proceed to apply the time-of-conviction rule without pausing for unresolved constitutional challenges to § 922(g).

Complex Concepts Simplified

  • Controlled substance offense (U.S.S.G. § 4B1.2(b)): A prior felony under federal or state law that prohibits distributing a controlled substance or possessing it with intent to distribute, among other conduct.
  • Incorporation into § 2K2.1: Section 2K2.1 uses § 4B1.2(b)’s definition to determine the base offense level for firearm offenses—24 if two qualifying priors, 14 if none, with other levels for intermediate scenarios.
  • Categorical approach: Courts compare statutory elements of the prior offense to the Guideline definition, not the defendant’s actual conduct. If the statute’s elements fit within the Guideline definition, the conviction qualifies.
  • Time-of-conviction rule (Dubois): Whether a drug is a “controlled substance” for § 4B1.2(b) purposes depends on state law at the time of the prior state conviction—not on federal schedules or later state descheduling.
  • Prior-panel-precedent rule: In the Eleventh Circuit, a later panel must follow a published prior panel decision unless it is overruled by the Supreme Court or the Eleventh Circuit sitting en banc. Arguments not made to the earlier panel do not permit departure from the prior holding.
  • GVR (grant, vacate, and remand): The Supreme Court can grant certiorari, vacate a lower court judgment, and remand for reconsideration in light of a new Supreme Court decision. Here, Dubois I was GVR’d in light of Rahimi; on remand, Dubois III reinstated Dubois I.
  • Hemp and ioflupane I123: Hemp (cannabis with ≤0.3% THC) was removed from the federal and Florida definitions of marijuana in 2018 and 2019, respectively. Ioflupane I123, a cocaine-related substance used in diagnostics, was excluded from federal schedules in 2015 and Florida’s in 2017. Under Dubois, these later changes do not alter the predicate status of earlier state convictions.
  • ACCA vs. Guidelines: The Armed Career Criminal Act (ACCA) uses “serious drug offense,” while the Guidelines use “controlled substance offense.” In Smith, the Eleventh Circuit held Florida § 893.13 convictions qualify under both frameworks, and that § 4B1.2(b) does not require matching the federal CSA.

Conclusion

United States v. Cheramy is a straightforward application of binding Eleventh Circuit precedent reinstated in Dubois III. The opinion confirms that, for determining whether prior state drug convictions are “controlled substance offenses” under U.S.S.G. § 4B1.2(b) and § 2K2.1, courts must look to whether the drug was controlled by state law at the time of the prior conviction. Later changes to federal or state schedules—including the exclusion of hemp or ioflupane—do not retroactively narrow the reach of those prior convictions for Guidelines purposes.

By reaffirming Smith, Pridgeon, and Dubois, the Eleventh Circuit forecloses overbreadth arguments premised on federal CSA disparities and cements the time-of-conviction rule as the governing approach. The decision provides clear guidance to district courts and litigants: when calculating base offense levels under § 2K2.1 (and related Guideline provisions using § 4B1.2(b)), the operative inquiry is anchored in the state-law elements and drug schedules as they existed when the defendant sustained the predicate convictions.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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