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                                                                                  [PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                    No. 15-15430
                              ________________________

                      D.C. Docket No. 3:15-cr-00115-JFD-CSC-1



UNITED STATES OF AMERICA,

                                                                       Plaintiff-Appellee,
                                            versus

ROGER LARDRELL MCCULLOUGH,

                                                                   Defendant-Appellant.

                              ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                             _______________________

                                      (March 15, 2017)

Before WILLIAM PRYOR, JORDAN, and RIPPLE, * Circuit Judges.

WILLIAM PRYOR, Circuit Judge:




*
 Honorable Kenneth F. Ripple, United States Circuit Judge for the Seventh Circuit, sitting by
designation.
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      This appeal requires us to determine whether the bar against reassigning a

case to a new judge “[a]fter a verdict or finding of guilty” unless the “judge who

presided at trial” is absent or disabled, Fed. R. Crim. P. 25(b)(1) (emphasis added),

applies where a defendant pleaded guilty. After a police officer stopped Roger

McCullough for driving with a partially obscured license plate, the officer arrested

McCullough for possession of marijuana. McCullough pleaded guilty to several

drug and firearm charges, and the district court reassigned the case to a new judge

for sentencing. McCullough argues that the reassignment was unlawful because the

judge initially assigned to the case was neither absent nor disabled. See Fed. R.

Crim. P. 25(b)(1). But the text of Rule 25 makes clear that the rule does not apply

where a defendant pleaded guilty. We also reject McCullough’s arguments that the

traffic stop was unlawful, that the district court should have reassigned the case

back to the initial judge, and that the district court committed procedural and

substantive error when it sentenced McCullough. We affirm.

                                I. BACKGROUND

      Roger McCullough drove along the highway one evening in his late father’s

truck when a police officer stationed on the side of the road used a machine to read

the license plate on the truck. The machine interprets alphanumeric symbols on

license plates and constructs an image of the plate. It then cross-references those

symbols against a database to search for, among other things, stolen vehicles and



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Amber alerts. The truck was outfitted with an Alabama license plate that read

“God Bless America.” A bracket in the shape of an eagle with outstretched wings

obscured parts of the license plate, including the invocation and the state of issue.




      Alabama law provides that “[e]very motor vehicle operator . . . shall at all

times keep attached and plainly visible on the rear end of such motor vehicle a

license tag or license plate.” Ala. Code § 32-6-51 (emphasis added). The officer

turned on his lights to stop McCullough because the officer believed McCullough

had violated this provision by driving with the eagle bracket. McCullough refused

to stop for several miles. When McCullough finally did stop, the officer detained

McCullough for safety reasons. The officer also wrote McCullough tickets for

failing to have a plainly visible license plate and for failing to yield to an

emergency vehicle.

      McCullough’s situation worsened when the officer smelled marijuana

wafting from the truck. The officer searched the truck and discovered $8,335 and a

substance the officer believed was marijuana. The officer arrested McCullough,


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searched him, and seized from his person more than $4,000 and a key to a hotel

room. Police obtained a warrant to search the hotel room. The room contained

several plastic bags, more than $1,000, three gallon-size bags filled with what the

police believed was marijuana, weighing scales, a marijuana grinder, multiple

phones, and a handgun.

      When McCullough was arrested, he was already on supervised release from

a previous conviction. His criminal history included three convictions for

possession of controlled substances—twice for cocaine, once for marijuana—one

conviction for possession with the intent to distribute marijuana, and several

assaults. For violating his supervised release, McCullough was sentenced after his

arrest to four months of time served. McCullough was given a new term of

supervised release, which included twenty months of residence at Fellowship

House in Birmingham, obtaining employment, and participating in a substance

abuse program.

      Soon after, a grand jury returned an indictment against McCullough for

possession with intent to distribute marijuana, 21 U.S.C. § 841(a)(l), possession of

a firearm in furtherance of a drug-trafficking crime, 18 U.S.C. § 924(c)(l)(A)(i),

and being a felon in possession of a firearm, 18 U.S.C. § 922(g)(l). McCullough

moved to suppress the evidence on the ground that the officer lacked probable

cause or reasonable suspicion to stop him for partly obscuring the license plate



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because Alabama law required only that alphanumeric symbols be visible, not the

full license plate. The district court denied the motion because it determined that a

reasonable officer could have believed that McCullough violated Alabama law and

that the arrest and search were justified. McCullough then pleaded guilty to each

count before a magistrate judge.

      Before sentencing, the probation officer calculated a guideline range of 262–

327 months that accounted for, among other factors, McCullough’s status as a

career offender with a career history category of VI and a consecutive mandatory

minimum of five years for being a felon in possession of a firearm. McCullough

objected and filed a motion for a downward variance that requested a sentence

between 117 and 131 months. McCullough argued that his case was similar to

Pepper v. United States, where the Supreme Court permitted a district court to

consider post-sentencing rehabilitation after an appellate court had vacated and

remanded the defendant’s initial sentence. 562 U.S. 476, 490 (2011). McCullough

argued that the district court should take into account that, among other things, he

had moved into the Fellowship House and had obtained employment since his

most recent release from incarceration. He also maintained that marijuana is less

serious relative to other controlled substances, so the guideline range was

disproportionate to his crime.




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         The district court reassigned the case to a new judge for sentencing.

McCullough argued that that the reassignment violated Federal Rule of Criminal

Procedure 25, which provides that a district court may reassign a matter to a new

judge if “[a]fter a verdict or finding of guilty, . . . the judge who presided at trial

cannot perform those duties because of absence, death, sickness, or other

disability.” Rule 25(b)(1). He also moved the district court to reassign the case

back to the initial judge, whom he contended was more familiar with the facts.

         At the sentencing hearing, McCullough notified the district court that the

motion for reassignment remained pending. The district court stated that it had not

seen the motion. After reading the motion, the district court ruled that Rule 25 did

not apply to defendants who, like McCullough, pleaded guilty. The district court

also expressed surprise that a magistrate judge, not a district judge, had accepted

the plea. The district court stated that it had read and considered all the letters

McCullough submitted. Although the district court had not read Pepper, both

parties stated the holding and made arguments as to its application. The district

court reviewed each letter McCullough submitted and determined that the letters

provided some evidence of lifestyle change but did not warrant a downward

variance in the light of McCullough’s significant criminal history. Instead, the

district court sentenced McCullough to 294 months, the midpoint of his guideline

range.



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                          II. STANDARDS OF REVIEW

      A few different standards govern our review of this appeal. We review

interpretations of rules of federal procedure de novo, United States v. Lopez, 562

F.3d 1309, 1311 (11th Cir. 2009), but we review the decision of a judge to

“perform sentencing duties in a case he did not try” for abuse of discretion, see

United States v. McGuinness, 769 F.2d 695, 696 (11th Cir. 1985). When reviewing

the denial of a motion to suppress, which presents a mixed question of fact and

law, we review factual findings for clear error and legal determinations de novo.

United States v. Gibson, 708 F.3d 1256, 1274 (11th Cir. 2013). We also view the

evidence in the light most favorable to the government, as the prevailing party. See

United States v. Capers, 708 F.3d 1286, 1295–96 (11th Cir. 2013). We review

sentencing decisions for abuse of discretion. United States v. Irey, 612 F.3d 1160,

1188 (11th Cir. 2010) (en banc).

                                  III. DISCUSSION

      We divide our discussion in five parts. We first explain that the district court

correctly ruled that Rule 25 does not apply to defendants who plead guilty. Second,

we explain that the district court did not abuse its discretion when it refused to

return the case to the initial judge. Third, we explain that the district court correctly

denied the motion to suppress the evidence because the traffic stop was lawful.

Fourth, we explain that McCullough’s sentence is reasonable. Fifth, we explain



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that McCullough waived the argument that one of his underlying convictions was

insufficient to justify his status as a career offender.

                             A. Sentencing Reassignment

       Federal Rule of Criminal Procedure 25 governs reassignment of cases where

a “trial” has occurred. The relevant provision applies where “[a]fter a verdict or

finding of guilty . . . the judge who presided at trial cannot perform [the court’s]

duties.” Rule 25(b)(1) (emphasis added). The rule limits reassignment in those

circumstances to instances of judicial “absence, death, sickness, or other

disability.” Id.

       McCullough argues that the rule applies to defendants like him who pleaded

guilty because the district court conducts a “mini-bench trial” when accepting a

guilty plea, but we disagree. Rule 25 does not apply because McCullough never

went to trial. McCullough’s guilty plea obviated the need for a trial, so the district

court had the authority to reassign his case. See 28 U.S.C. § 137 (enabling district

courts to rearrange their business); United States v. Stone, 411 F.2d 597, 599 (5th

Cir. 1969) (District courts “have the inherent power to transfer cases from one to

another for the expeditious administration of justice.”).

       Guilty pleas are governed not by Rule 25, but by Rule 11, and that rule

makes clear that a defendant who pleads guilty does so in lieu of a trial. To plead

guilty, a defendant must knowingly “waive[] . . . trial rights” guaranteed by the



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Constitution such as the “right to a jury trial.” Rule 11(b)(1)(C), (F). Rule 11

“[s]pecif[ies] that there will be no future trial of any kind” and ensures that “[o]nly

a comparatively small number [of cases] go to trial.” Fed. R. Crim. P. 11 advisory

committee’s note to 1966, 1974 amendments; see also Green v. LaMarque, 532

F.3d 1028, 1032 (9th Cir. 2008) (remarking that a conviction arose “pursuant to a

plea, not a trial”); United States v. Roberts, 515 F.2d 642, 648 (2d Cir. 1975)

(remarking that “the defendant contemplated not a trial but instead a plea of

guilty”); see also United States v. Tootle, 65 F.3d 381, 384 (4th Cir. 1995)

(Niemeyer, J., concurring) (remarking that a “hearing to approve a plea agreement

is not a trial”).

       Rule 11 also falls within the section of the criminal rules entitled

“Arraignment and Preparation for Trial,” not the section entitled “Trial,” which

contains Rule 25. Although a title cannot overcome the text, it may shed light on

the meaning of the text. Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 221 (2012); see also Almendarez-Torres v. United

States, 523 U.S. 224, 234 (1998). The decision to separate Rules 25 and 11 into

rules that govern “trial” and “preparation for trial,” respectively, suggests that Rule

25 does not apply to defendants who pleaded guilty.

       To be sure, some courts have applied the rule to defendants who pleaded

guilty, e.g., United States v. Urben-Potratz, 470 F.3d 740, 744 (8th Cir. 2006), and



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one treatise has stated that “a successor judge is authorized under the Rule to

sentence a defendant who previously pleaded guilty before the original judge.” 25

Moore’s Federal Practice, § 625.06 (Matthew Bender 3d ed.). But these decisions,

as well as those the treatise relies on, apply the rule in a summary fashion that fails

to persuade us. See, e.g., Urben-Potratz, 470 F.3d at 744; United States v.

Edwards, 800 F.2d 878, 884 (9th Cir. 1986) (rejecting the defendant’s argument

that “he had ‘an implied plea bargain right’ to have the judge who accepted his

plea also impose [a] sentence”); United States v. Tantalo, 680 F.2d 903, 904 n.1

(2d Cir. 1982). These authorities cannot overcome the plain text and divisions of

Rules 11 and 25.

                                B. Motion to Reassign
      A judge who did not preside over the guilty plea or trial must become

familiar with the record before sentencing. See, e.g., United States v. Dowd, 451

F.3d 1244, 1256 (11th Cir. 2006). McCullough argues that the district court

expressed so much unfamiliarity with the record that it abused its discretion when

it declined to reassign the case back to the initial judge for sentencing. We

disagree.

      The district court did not abuse its discretion. The record reflects that the

district court was initially unaware of the motion to reassign, of the ability of a

magistrate judge to accept a guilty plea in felony cases, and of the holding in



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Pepper. But none of the alleged errors amount to a failure to become familiar with

the record. Neither the plea having occurred before a magistrate judge nor the

existence of a motion to reassign bears relevance to the sentence length. Even if

they did, the district court became aware of the issues before sentencing. The

parties also explained the holding of Pepper to the district court before the district

court sentenced McCullough.

                                   C. Traffic Stop
      McCullough argues that the district court should have suppressed all

evidence from the traffic stop. He argues that the stop was unlawful because

Alabama law requires only that the alphanumeric symbols on a license plate, not

the full plate, must be “plainly visible.” We disagree.

      “The Fourth Amendment protects individuals from unreasonable search and

seizure,” United States v. Holt, 777 F.3d 1234, 1256 (11th Cir. 2015), including

traffic stops, United States v. Spoerke, 568 F.3d 1236, 1248 (11th Cir. 2009).

“[b]ecause the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’”

Brigham City v. Stuart, 547 U.S. 398, 403 (2006), an officer conducts a valid

traffic stop even if he makes an “objectively reasonable” mistake of law—such as

incorrectly believing the law requires all brake lights to be operational instead of

just one. Heien v. North Carolina, 135 S. Ct. 530, 539 (2014).




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      Even if McCullough is correct that Alabama law permits a driver to obscure

certain portions of the license plate as long as the alphanumeric symbols are left

“plainly visible,” the stop was not unlawful because the officer’s contrary

conclusion was “objectively reasonable.” See id. (emphasis omitted). Alabama law

requires that “[e]very motor vehicle operator . . . shall at all times keep attached

and plainly visible . . . a license tag or license plate.” Ala. Code § 32-6-51. This

text leaves open the possibility that more than the alphanumeric symbols must be

plainly visible. That interpretation finds support in a revenue regulation governing

the design of license plates that specifies that “‘Alabama’ must clearly be visible

and must appear at the top of the license plate.” Ala. Admin. Code r. 810-5-1-

.217(4) (2012).

      McCullough contends that the pertinent provision is not section 32-6-51, but

section 40-12-242, a revenue statute that provides that “[n]o private passenger

automobile and no motorcycle shall be used . . . unless the proper license tag . . . is

securely attached . . . with the number thereof in an upright position and plainly

visible.” Ala. Code § 40-12-242 (emphases added). But reading both statutes

together—as McCullough contends we should—supports the conclusion that the

officer’s interpretation was reasonable. The absence of any limit in section 32-6-51

suggests the section applies to more than alphanumeric symbols. Scalia & Garner,

supra, at 107; Russello v. United States, 464 U.S. 16, 23 (1983).



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      McCullough also argues that the officer could not make a reasonable

mistake of law because an appellate court has construed section 40-12-242 to

require only that alphanumeric symbols be plainly visible, but this argument fails.

For one thing, the decision that McCullough cites, Whistenant v. State, never

construes the provisions of section 40-12-242; it only quotes the statute. 278 So. 2d

183, 193–94 (Ala. Crim. App. 1973). For another, even if the Alabama court had

construed the statute and arrived at a result different from the officer, the presence

or absence of an appellate decision is not dispositive of whether an officer’s

interpretation is objectively reasonable. Heien, 135 S. Ct. at 540.

                              D. Reasonable Sentence
      McCullough argues that his sentence is both procedurally and substantively

unreasonable. He argues that the district court committed procedural error because

it did not read Pepper, did not consider McCullough’s recent conduct as

McCullough states is required by Pepper, and did not consider each exhibit that

McCullough provided. He argues that his within-guideline sentence is

substantively unreasonable because charges relating to marijuana, he contends, are

relatively less serious than charges relating to other drugs. We reject these

arguments.

      The district court committed no procedural error. “A sentence may be

procedurally unreasonable if the district court improperly calculates the Guidelines



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range, treats the Guidelines as mandatory rather than advisory, fails to consider the

appropriate statutory factors [18 U.S.C. § 3553(a)], selects a sentence based on

clearly erroneous facts, or fails to adequately explain the chosen sentence.” United

States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir. 2008). Although the district

court initially expressed unfamiliarity with the decision in Pepper, the parties

explained the holding to the district court before it sentenced McCullough. And

Pepper did not even apply to McCullough’s sentencing because the district court

was sentencing McCullough for the first instance, not resentencing him after an

appellate court vacated the initial sentence. The record also belies McCullough’s

argument that the district court failed to consider his recent conduct or each exhibit

he submitted. The district court stated that it had read each letter that McCullough

submitted, including those concerning his rehabilitation, but determined that a

downward variance was unwarranted.

      The district court also imposed a substantively reasonable sentence. A

district court imposes a substantively unreasonable sentence if it fails to consider

relevant factors that were due significant weight, gives improper or irrelevant

factors substantial weight, or commits a clear error in judgment by balancing

proper factors unreasonably. Irey, 612 F.3d at 1189. We will vacate a sentence on

substantive grounds only when we are “left with the definite and firm conviction

that the district court committed a clear error of judgment in weighing the [section]



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3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” Id. at 1190 (citation omitted).

McCullough offers no reason to suggest that his sentence within the guideline

range warrants reversal, especially in the light of his substantial criminal history.

                              E. Career Offender Status
      In a letter providing supplemental authority, McCullough cited a decision of

the Supreme Court issued after the briefing schedule to argue that one of his

underlying convictions was insufficient to justify his status as a career offender.

“Our longstanding case law rule is that an appellant who does not raise an issue in

his opening brief may not do so” later. See United States v. Durham, 795 F.3d

1329, 1330 (11th Cir. 2015) (en banc). An exception to this rule exists where “an

intervening decision of the Supreme Court” provides a litigant “with a new claim

or theory.” Id. at 1331. But the decision McCullough cited, Mathis v. United

States, 136 S. Ct. 2243 (2016), did not enable McCullough to bring “a new claim

or theory,” so McCullough waived this argument.

                                IV. CONCLUSION

      We AFFIRM McCullough’s judgment of conviction and sentence.




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