           Case: 19-11003   Date Filed: 01/06/2020   Page: 1 of 8


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 19-11003
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:15-cr-20815-JLK-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

DENARD STOKELING,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Southern District of Florida
                     ________________________

                            (January 6, 2020)

Before WILLIAM PRYOR, GRANT and TJOFLAT, Circuit Judges.

PER CURIAM:
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      Denard Stokeling challenges his conviction, following his plea of guilty, and

his sentence of 180 months of imprisonment for being a felon in possession of a

firearm and ammunition. 18 U.S.C. §§ 922(g)(1), 924(e)(1). In an earlier appeal by

the government, we vacated Stokeling’s sentence of 73 months of imprisonment

because the district court erred by failing to count his prior conviction in Florida

for robbery, Fla. Stat. § 812.13, as a violent felony and to sentence him as an

armed career criminal. United States v. Stokeling, 684 F. App’x 870 (11th Cir.

2017). The Supreme Court affirmed and remanded for resentencing. Stokeling v.

United States, 139 S. Ct. 544 (2019). Stokeling then filed this appeal. But before

Stokeling filed his initial brief, the Supreme Court decided Rehaif v. United States,

139 S. Ct. 2191 (2019), which abrogated our precedent holding that the

government did not have to prove a defendant’s knowledge of his status as a felon,

United States v. Reed, 941 F.3d 1018, 1021 (11th Cir. 2019). Stokeling now argues

that we should vacate his conviction because his indictment failed to allege and

because he was not advised during his change of plea hearing that he had to know

he was a felon barred from possessing firearms and ammunition. Stokeling also

argues that his prior conviction for robbery is not a violent felony under the Armed

Career Criminal Act. We affirm.




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                                I. BACKGROUND

      Stokeling pleaded guilty to “knowingly possess[ing] a firearm and

ammunition in and affecting interstate and foreign commerce . . . [after] having

been previously convicted of a crime punishable by imprisonment for a term

exceeding one year . . . .” 18 U.S.C. §§ 922(g)(1), 924(e)(1). In his factual proffer,

Stokeling admitted “he had been previously convicted of home invasion,

kidnapping, and robbery and . . . sentenced to twelve years in prison” for those

“felony offense[s]” before possessing the firearm and ammunition. During his

change of plea hearing, Stokeling acknowledged that he had not been induced or

coerced to plead guilty; that he understood the charges against him; and that the

factual proffer described his offense accurately. Stokeling also acknowledged he

was “voluntarily entering [his] plea with knowledge of the potential penalty” under

the Armed Career Criminal Act and “underst[ood] that should the Court find that

he is subject to the enhancement, that he would then be subject to the 15-year

mandatory minimum with the possible maximum sentence of life.”

      The district court rejected the recommendations in Stokeling’s presentence

investigation report to classify him as an armed career criminal and to impose a

sentence between 180 and 188 months of imprisonment. Id. § 924(e). The district

court examined the facts underlying Stokeling’s conviction in 1997 for robbery

with a deadly weapon, Fla. Stat. § 812.13, and decided it did “not qualify under the


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existing law” as a violent felony under the Act. The district court recalculated

Stokeling’s advisory sentencing range without the statutory enhancement and

sentenced him to 73 months of imprisonment. The government appealed.

      We vacated Stokeling’s sentence and remanded for the district court to

resentence him as an armed career criminal. Stokeling, 684 F. App’x at 872. We

stated that a long line of our precedents held that a conviction in Florida for

robbery categorically qualified as a violent felony under the elements clause of the

Act, even if based on “the least culpable of the[] acts criminalized by Florida

Statutes § 812.13(1).” Id. at 871 (citations and internal quotation marks omitted).

And we stated that those precedents foreclosed Stokeling’s argument that, before

1999, a robbery could have been committed without violent force by a sudden

snatching, see Fla. Stat. § 812.131, because the robbery statute never included theft

by mere snatching and always required the use or threatened use of physical force

to overcome resistance by the victim. Stokeling, 684 F. App’x at 871 (discussing

United States v. Fritts, 841 F.3d 937, 942–44 & n.7 (11th Cir. 2016)).

      The Supreme Court affirmed our judgment. Stokeling, 139 S. Ct. 544. The

Supreme Court highlighted that the term “physical force” in the elements clause of

the Act means “force capable of causing physical pain or injury to another person.”

Id. at 553–54 (discussing Johnson v. United States, 559 U.S. 133 (2010)). The

Court next explained that the force used need only be “sufficient to overcome a


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victim’s resistance” and create the potential for, but not necessarily cause, pain or

injury. Id. at 554. And it concluded that “[r]obbery under Florida law . . .

qualifie[d] as a ‘violent felony’” because the defendant had to use or threaten to

use physical force to overpower his victim, which “correspond[ed] to that level of

force” required in the elements clause of the Act. Id. at 554–55.

      On remand to the district court, Stokeling filed supplemental objections to

his presentence report. He argued that a conviction under the Florida robbery

statute did not qualify as a violent felony because it punished only “putting [a

victim] in fear,” Fla. Stat. § 812.13(1). The government responded that Stokeling’s

argument was barred by the law of the case.

      The district court overruled Stokeling’s objections and sentenced him to 180

months of imprisonment. The district court asked Stokeling for “any other

objection,” and he responded, “There is currently a case before the Supreme Court

called Rehaif versus United States . . . out of the Eleventh Circuit” and its

“precedent is to the contrary.”

                          II. STANDARDS OF REVIEW

      We review for plain error Stokeling’s new arguments concerning the

sufficiency of his indictment, see Reed, 941 F.3d at 1020, and the voluntariness of

his guilty plea, see United States v. Moriarty, 429 F.3d 1012, 1018–19 (11th Cir.

2005). To prevail under plain error review, Stokeling must prove an error occurred


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that was plain and that affected his substantial rights. See Reed, 941 F.3d at 1021.

We review de novo whether the law of the case doctrine barred Stokeling from

relitigating the classification of his prior conviction as a violent felony. See United

States v. Green, 764 F.3d 1352, 1355 (11th Cir. 2014).

                                  III. DISCUSSION

      Stokeling makes two arguments. First, he argues that we must vacate his

conviction because his indictment failed to allege that he knew he was a felon, as

required by Rehaif, and because he entered his plea without being apprised of all

the elements of his crime. Second, he argues that he was erroneously resentenced

as an armed career criminal because a robbery by “putting in fear,” Fla. Stat.

§ 812.13(1), cannot qualify as a violent felony.

      Stokeling waived the defect in his indictment. Stokeling’s plea of guilty

waived all nonjurisdictional defects in his proceeding. See United States v. Brown,

752 F.3d 1344, 1347 (11th Cir. 2014). He may obtain relief from his guilty plea

only if he identifies a defect that affected the power of the district court to enter its

judgment. See id. at 1350–51 (discussing United States v. Cotton, 535 U.S. 625,

630–31 (2002)). Rehaif clarified that a defendant’s knowledge of his status as a

felon is an element of the offense of being a felon in possession of a firearm, 139 S.

Ct. at 2200, but the omission of a mens rea element from an indictment does not

divest the district court of subject matter jurisdiction to adjudicate a criminal case.


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See Brown, 752 F.3d at 1350–51, 1353–54. Stokeling’s indictment was defective

because it failed to allege that he knew he was a felon, but Stokeling waived that

nonjurisdictional defect by pleading guilty.

      The government concedes that, because a defendant’s knowledge of his

status as a felon is an element of the crime of being a felon in possession, Rehaif,

139 S. Ct. at 2200, the district court erred under Rehaif when it failed to advise

Stokeling during his plea colloquy that the government had to prove that he knew

he was a felon when he possessed the firearm and ammunition. Federal Rule of

Criminal Procedure 11 requires the district court to “inform the defendant of . . .

and determine that [he] understands . . . the nature of each charge to which [he] is

pleading” during the change of plea hearing. Fed. R. Crim. P. 11(b)(1)(G).

Nevertheless, we agree with the government that Stokeling cannot obtain a vacatur

of his conviction because he “show[s] [no] reasonable probability that, but for the

error, he would not have entered [his] plea.” Moriarty, 429 F.3d at 1020 (quoting

United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004)).

      Stokeling does not argue that he would not have pleaded guilty had he been

told he had to know he was a felon barred from possessing firearms and

ammunition. His silence is unsurprising because he admitted in his factual proffer

and affirmed during his plea colloquy that he had three prior convictions for

serious felonies, he had served 12 years in prison, and he was subject to a sentence


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enhancement for being an armed career criminal. See United States v. Gonzalez–

Mercado, 808 F.2d 796, 800 n.8 (11th Cir. 1987) (“there is a strong presumption

that the statements made during the colloquy are true”). Because the record

establishes that Stokeling knew of his status as a felon, he cannot prove that he was

prejudiced by the error during his plea colloquy.

      Stokeling’s remaining challenge to his sentence is barred by the law of the

case. Under that doctrine, a party is barred from relitigating an issue that a court

necessarily or by implication decided against him in an earlier appeal. United

States v. Jordan, 429 F.3d 1032, 1035 (11th Cir. 2005). Our earlier decision, which

the Supreme Court affirmed, Stokeling, 139 S. Ct. 544, that Stokeling’s prior

conviction for robbery constitutes a predicate offense under the Armed Career

Criminal Act is the law of the case. And that determination bars Stokeling’s

argument that robbery by putting in fear does not involve violent force.

      None of the exceptions to the law of the case doctrine apply. Stokeling

identifies no new evidence or an intervening change in the law. See Stoufflet v.

United States, 757 F.3d 1236, 1240 (11th Cir. 2014). Nor does a manifest injustice

result from applying the law of the case doctrine to Stokeling. See id.

                                IV. CONCLUSION

      We AFFIRM Stokeling’s conviction and sentence.




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