[DO NOT PUBLISH]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,
D efendant

- 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:

Case: 19-11003 Date Filed: 01/06/2020 Page: 1 of 82 D enard Stokeling challenges his conviction , following his plea of guilty , a nd 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 err ed b y fail ing to count his prior conviction in Florida for robbery , Fla. Stat. § 812.13, as a violent felony and to sentence him as an

arm ed career criminal

. United States v. Stokeling , 684 F. App’x 870 (11 th Cir. 2017). T he Supreme Court affirmed a nd remanded for resentencing

. Stokeling v. United States , 139 S. Ct. 544 (2019)

. Stokeling then filed this a ppeal

. B ut b efore 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 k now ledge of his status as a felon , United Sta tes 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 kn o w 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.

Case: 19-11003 Date Filed: 01/06/2020 Page: 2 of 83 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

exce eding 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, kidnappi ng, 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 acknowledg ed that h e had not been induced or coerced to plead guilty; th at 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 “u nderst[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 reject ed the recommendations in Stokeling ’s presentence investigation report to classif y him as an armed career criminal and to impose a
sentence between 180 and 188 months of imprisonment

. I d. § 924(e)

. The district court examined the facts underlying S tokeling ’s conviction in 1997 for robbery with a deadly weapon, Fla. Stat. § 812.13, and de cid ed it did “not qualify under the

Case: 19-11003 Date Filed: 01/06/2020 Page: 3 of 84 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 . T he government appealed

. W e vacated Stokeling’s sentence and remanded for the district court to resentence him as an armed career criminal

. Stokeling , 684 F. App ’ x at 87 2. We stated that a long line of our precedents h e ld that a conviction in Florida for robbery categorically qualifie d 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 quot ation marks omitted)

. And we stat ed that those precedents foreclosed Stokeling’s argument that , before 1999 , a robbery could have been committed without violent force b y a sudden
snat ching , 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 (11 th Cir. 2016 ) )

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

. The Supreme Court highlight ed 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 55 3

– 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

Case: 19-11003 Date Filed: 01/06/2020 Page: 4 of 85 victim ’ s resistance ” a nd create the potential for, but not necessarily cause, pain or injury. I d

. at 554

. And i t concluded that “[r]obbery under Florida law .

. . qualifie[d] as a ‘violent felony’” b ecause the defendant had to use or threaten to use physical force to over power his victim , which “correspond [ ed ] to that level of force” required in the elements clause o f 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 on ly “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 dis trict court overruled Stokeling’s objection s and sentenced him to 180 months of imprisonment. T he district court asked Stokeling for “any other objection,” and he responde d, “There is currently a case before the Supreme Court called Rehaif versus United St ates

. . . out of the Eleventh Circuit ” and its

“ precedent is to the contrary.” II. STANDARD S OF REVIEW We review for plain error Stokeling ’s new argument s concern ing the sufficiency of his indictment , s ee 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

Case: 19-11003 Date Filed: 01/06/2020 Page: 5 of 86 that was plain and that affected his substantial rights. See Reed , 941 F.3 d 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 cr im e . 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

. Stok eling 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 di strict 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 , b ut the omission of a mens rea element from an indictment d oes not divest the district court of subject matter jurisdiction to adjudicate a criminal case

.

Case: 19-11003 Date Filed: 01/06/2020 Page: 6 of 87 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 th at 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, t he 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 posse ssed 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 he aring. 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, 8 3 (2004) )

. Stokeling does not a rgue that he would not have pleaded guilty had he be en told he had to know he was a felon barred from possessing firearms and ammunition. His silence is un s urprising 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

Case: 19-11003 Date Filed: 01/06/2020 Page: 7 of 88 enhancement for being an armed career criminal

. See United States v. Gonzalez

– Mercado , 808 F.2d 796, 800 n.8 (11th Cir. 1987) (“ t here is a strong presumption that the statements made during t he colloquy are true”). Because the record establishes that Stokeling knew of his status as a felon, he c an not 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 th at 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 , 1 035 (11th Cir. 20 05 )

. Our earlier de cision, which the Supreme Court affirmed, Stokeling , 139 S. Ct. 544 , that Stokeling’s prior conviction for robbery co nstitute s a predicate offense under the Armed Career Criminal Act is the law of the case. And t h at de terminat ion bars Stokeling’s argument that robbery by pu tting in fear does not involve violent force

. N one of the exceptions to the law of the case doctrine apply. Stokeling identifies no new evidence or an intervening change in the la w. See Stoufflet v. United States , 757 F.3d 1236 , 1240 (11 th Cir. 2014) . Nor does a manifest injustice result from applying the law of the case doctrine to Stokeling

. See i d. IV. CONCLUSION
We AFFIRM Stokeling’s conviction and sentence. Case: 19-11003 Date Filed: 01/06/2020 Page: 8 of 8