[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-11333

Non-Argument Calendar

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UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

versus

NIKO WIMBLEY, 

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cr-00218-VMC-AEP-1

____________________

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2 Opinion of the Court 23-11333

Before BRASHER, ABUDU, and MARCUS, Circuit Judges.

PER CURIAM:

Niko Wimbley appeals his sentence of 60 months’ imprisonment for possessing a firearm as a felon, in violation of 18 

U.S.C. §§ 922(g)(1), 924(a)(2). Wimbley argues that his sentence 

was procedurally unreasonable because the district court erroneously found that his 2016 Florida marijuana conviction was a “controlled substance offense” under U.S.S.G. §§ 2K2.1(a)(4)(A), 

4B1.2(b), and thus erred in calculating Wimbley’s base offense 

level. After thorough review, we affirm.

We review de novo a district court’s interpretation of the Sentencing Guidelines. United States v. Dubois, 94 F.4th 1284, 1291 

(11th Cir. 2024). This includes a district court’s interpretation of 

the term “controlled substance offense” under the Sentencing 

Guidelines. United States v. Bishop, 940 F.3d 1242, 1253 (11th Cir. 

2019). Under the prior precedent rule, we are bound to adhere to 

a prior panel’s holding “unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this 

[C]ourt sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th Cir. 

2015) (quotations omitted).

Under U.S.S.G. § 2K2.1(a)(4)(A), a defendant convicted of 

unlawful possession of firearms or ammunition receives a base offense level of 20 if he or she “committed any part of the instant 

offense subsequent to sustaining one felony conviction of . . . a controlled substance offense.” The commentary to U.S.S.G. § 2K2.1 

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states that “controlled substance offense” has the meaning set forth 

in U.S.S.G. § 4B1.2(b) and Application Note 1 of the Commentary 

to § 4B1.2. U.S.S.G. § 2K2.1, comment. (n.1). Section 4B1.2(b), in 

turn, defines “controlled substance offense” as follows:

[A]n offense under federal or state law, punishable by 

imprisonment for a term exceeding one year, that 

prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a 

counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or 

dispense.

U.S.S.G. § 4B1.2(b) (2021).

In determining whether a state conviction counts as a “controlled substance offense” under U.S.S.G. §§ 2K2.1(a)(4)(A), 

4B1.2(b), we apply the categorical approach. Dubois, 94 F.4th at 

1295. Under the categorical approach, we compare the definition 

of “controlled substance offense” under the Sentencing Guidelines 

with the state statute of conviction. Id. “Unless the least culpable 

conduct prohibited under the state law qualifies as a predicate controlled substance offense, the defendant’s state conviction cannot 

be the basis of an enhancement under the guidelines, regardless of 

the actual conduct underlying the conviction.” Id. (cleaned up). 

In Dubois, we held that a “‘controlled substance’” under the 

Guidelines’ 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 

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4 Opinion of the Court 23-11333

longer regulated by the state at the time of federal sentencing.” Id.

at 1300. In September 2016, Florida law listed “cannabis” as a controlled substance. Fla. Stat. § 893.03(1)(c)(7) (2016). Florida law 

defined “cannabis” as “all parts of any plant of the genus Cannabis, 

whether growing or not; the seeds thereof; the resin extracted from 

any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin.” 

Id. § 893.02(3) (2016). Florida law did not contain any exemptions 

for non-medical uses of hemp. See id.; id. § 381.986 (2016).

Here, Wimbley’s challenges to the calculation of his sentence are foreclosed by our prior precedent. Under Dubois, Florida 

law at the time of Wimbley’s 2016 Florida conviction governs 

whether the conviction was a “controlled substance offense” 

within the meaning of U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(b). As 

Wimbley concedes, at the time of his September 2016 Florida conviction, Florida law regulated all parts of the cannabis plant, including hemp, mature stalks, and sterilized seeds. Fla. Stat. § 893.02(3) 

(2016). Thus, Wimbley’s 2016 conviction was a “controlled substance offense,” and the district court did not err in calculating his 

base offense level.

Wimbley argues that we should disregard Florida’s definition of “cannabis” because it was overly broad, and that we should 

apply the rule of lenity to the term “controlled substance offense”

because it is ambiguous. See Said v. U.S. Attorney General, 28 F.4th 

1328, 1333 (11th Cir. 2022) (holding that the Board of Immigration 

Appeals erred in finding that a noncitizen had violated a state law 

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“relating to a controlled substance” under the Immigration and Nationality Act because the Florida statute of conviction criminalized 

all parts of the marijuana plant, whereas federal law did not). However, in Dubois, we defined the term “controlled substance” under 

the Guidelines at issue here -- U.S.S.G. §§ 2K2.1(a)(4)(A), 4B1.2(b) -

- squarely holding that it “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.” 94 F.4th at 1300. Thus, these arguments are similarly foreclosed by Dubois.

Accordingly, the district court did not procedurally err in determining that Wimbley’s 2016 Florida conviction was a “controlled substance offense” within the meaning of U.S.S.G. §§ 

2K2.1(a)(4)(A), 4B1.2(b), and thus did not err in calculating 

Wimbley’s base offense level. We affirm his 60-month sentence of 

imprisonment.

AFFIRMED. 

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