United States v. Tavio McNeary, Jr.

── United States v. Tavio McNeary, Jr. ── Case No.: 25-11054 Court: Court of Appeals for the Eleventh Circuit Date: March 31, 2026 Category: NEW USCA11 Case: 25-11054 Document: 23-1 Date Filed: 03/31/2026 Page: 1 of 19 NOT FOR PUBLICATION In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-11054 Non-Argument Calendar ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus TAVIO JAVON MCNEARY, JR., Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 7:24-cr-00008-WLS-ALS-1 ____________________ Before JILL PRYOR, BRANCH, and MARCUS, Circuit Judges. PER CURIAM: Tavio McNeary, Jr. appeals his conviction for possessing a firearm as a convicted felon, on the ground that his prior Georgia USCA11 Case: 25-11054 Document: 23-1 Date Filed: 03/31/2026 Page: 2 of 19 2 Opinion of the Court 25-11054 marijuana conviction does not qualify as a controlled substance of- fense under U.S.S.G. § 4B1.2(b)(1) and that 18 U.S.C. §§ 922(g)(1) and 924(a)(8) violate the Second Amendment facially and as applied to him. The government moves for summary affirmance, arguing that our precedent forecloses McNeary’s claims. After careful re- view, we grant the government’s motion and summarily affirm. I. Summary disposition is appropriate either where time is of the essence, like in “situations where important public policy issues are involved or those where rights delayed are rights denied,” or where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the out- come of the case, or where . . . the appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). 1 “We review de novo whether a prior conviction qualifies as a ‘controlled substance offense’ under the Guidelines.” United States v. Bishop, 940 F.3d 1242, 1253 (11th Cir. 2019). The Sentenc- ing Guidelines provide that a defendant’s base offense level is 24 “if the defendant committed any part of the instant offense subse- quent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2). The Guidelines define “controlled substance offense,” 1 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981. USCA11 Case: 25-11054 Document: 23-1 Date Filed: 03/31/2026 Page: 3 of 19 25-11054 Opinion of the Court 3 in relevant part, as “an offense under federal or state law, punisha- ble by imprisonment for a term exceeding one year, that . . . pro- hibits the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled sub- stance . . . with intent to manufacture, import, export, distribute, or dispense.” Id. § 4B1.2(b)(1); see also id. § 2K2.1, cmt. n.1. Under federal law, controlled substances are drugs or other substances listed on the federal drug sche