Tavio McNeary, Jr. appealed his conviction for possessing a firearm as a convicted felon under 18 U.S.C. §§ 922(g)(1) and 924(a)(8). His appeal raised two primary challenges: first, that his prior Georgia conviction for marijuana possession did not qualify as a controlled substance offense under the U.S. Sentencing Guidelines, which would have reduced his base offense level; and second, that the federal felon-in-possession statute violates the Second Amendment both facially and as applied to him. The government moved for summary affirmance, arguing that McNeary's claims were foreclosed by binding Eleventh Circuit precedent. The district court had enhanced McNeary's sentence based on the prior marijuana conviction, treating it as a controlled substance offense under the Guidelines.
The court addressed the sentencing guideline issue first, applying de novo review to determine if the prior conviction qualified as a controlled substance offense. The court relied on its prior panel decisions in United States v. Dubois and United States v. Kennedy, which established that for prior state convictions, the definition of a controlled substance is determined by the law of the sovereign of conviction at the time of that conviction. The court explained that the Guidelines define a controlled substance offense as an offense under federal or state law, and the text makes clear that a substance regulated only by state law qualifies. Therefore, even though marijuana is not listed on Georgia's specific drug schedules, it was regulated by Georgia law at the time of McNeary's conviction, and the state's definition of marijuana incorporated federal standards. The court rejected McNeary's argument that federal law should control, noting that the prior panel precedent rule binds the court to the holdings in Dubois and Kennedy, which explicitly state that state law defines controlled substances for state predicate offenses. Regarding the Second Amendment challenge, the court noted that its precedent in United States v. Rozier, reaffirmed in United States v. Dubois II, holds that prohibitions on felon firearm possession are presumptively lawful under Heller and have not been abrogated by Bruen or Rahimi. The court found that McNeary's facial and as-applied challenges were foreclosed by this binding authority, as Heller explicitly identified felon bans as longstanding prohibitions that do not offend the Second Amendment.
McNeary's conviction and sentence enhancement stand. The decision reinforces the Eleventh Circuit's rule that sentencing enhancements based on prior state drug convictions depend on the state law in effect at the time of the prior conviction, not current federal schedules. It also confirms that the Second Amendment does not provide a defense to felon-in-possession charges in this circuit, even after recent Supreme Court rulings on gun rights. The case was disposed of summarily without oral argument.