Filed: Jan. 06, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 19-11003 Date Filed: 01/06/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11003 Non-Argument Calendar _ D.C. Docket No. 1:15-cr-20815-JLK-1 UNITED STATES OF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: Case: 19-11003 Date Filed:
Summary: Case: 19-11003 Date Filed: 01/06/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-11003 Non-Argument Calendar _ D.C. Docket No. 1:15-cr-20815-JLK-1 UNITED STATES OF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: Case: 19-11003 Date Filed: 0..
More
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[DO NOT PUBLISH]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:
Case: 19-11003 Date Filed: 01/06/2020 Page: 2 of 8
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.
2
Case: 19-11003 Date Filed: 01/06/2020 Page: 3 of 8
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
3
Case: 19-11003 Date Filed: 01/06/2020 Page: 4 of 8
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
4
Case: 19-11003 Date Filed: 01/06/2020 Page: 5 of 8
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
5
Case: 19-11003 Date Filed: 01/06/2020 Page: 6 of 8
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.
6
Case: 19-11003 Date Filed: 01/06/2020 Page: 7 of 8
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
7
Case: 19-11003 Date Filed: 01/06/2020 Page: 8 of 8
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.
8