               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 04a0191n.06
                          Filed: December 21, 2004

                                         No. 04-5256

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )   On Appeal from the United States
                                                       )   District Court for the Eastern
GLENN MATHIS,                                          )   District of Tennessee
                                                       )
       Defendant-Appellant.                            )



Before:       BOGGS, Chief Judge; CLAY, Circuit Judge; and WALTER, District Judge.*

              BOGGS, Chief Judge. Defendant Glenn Mathis appeals from his conviction for

conspiracy to distribute methamphetamine, possession of methamphetamine with the intent to

distribute, and possession of marijuana. Because Mathis waived his right to appeal the district

court’s denial of his motion to suppress evidence and there is ample evidence to support his

conviction, we affirm.



                                               I

       In July 2001, Brad Depew, a narcotics detective in the Hawkins County Sheriff’s

Department, received an anonymous tip that a package containing drugs would be arriving by



       *
        The Honorable Donald E. Walter, United States District Judge for the Western District of
Louisiana, sitting by designation.
No. 04-5256
US v. Mathis

Federal Express at 275 Creek Road in Church Hill, Tennessee. Detective Depew requested that

Federal Express employees notify him should they receive a package addressed to that location. On

July 16, 2001, a package addressed to “Glenn” at 275 Creek Road was intercepted by Federal

Express employees, who contacted Detective Depew. During a package lineup at a Federal Express

facility, a drug-sniffing dog identified the package in question. Detective Depew then obtained a

search warrant to open the package, which contained over 200 grams of methamphetamine.

       After the package was resealed, a law enforcement agent disguised as a Federal Express

employee delivered the package to 275 Creek Road. Mathis answered the door. He told the

undercover agent that though he was named Glenn, he was not expecting a package. Even so,

Mathis eventually signed for the package, at which point he was immediately arrested. After the

arrest, Mathis consented to a search of his residence.          Mathis admitted that he was a

methamphetamine user and told the officers that they would find some of the drug in his desk. The

officers discovered approximately five grams of the drug where Mathis told them it would be. The

search also uncovered a digital scale; several small plastic baggies; a jar of “Vitablend,” which is

often used to dilute or “cut” narcotics; and a partial recipe to produce methamphetamine. The

officers also uncovered two bags containing marijuana.

       Mathis was indicted on one count of conspiracy to distribute methamphetamine, in violation

of 21 U.S.C. § 846; one count of possession of methamphetamine with the intent to distribute, in

violation of 21 U.S.C. § 841(a)(1); and one count of possession of marijuana, in violation of 21

U.S.C. § 844. Mathis then filed a motion to suppress the evidence seized on July 16, 2001. On June

25, 2003, a magistrate judge issued a report and recommendation to deny the motion to suppress,

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US v. Mathis

to which Mathis never filed any objections. On July 15, 2003, the district judge adopted the report

and recommendation.

       That same month, Mathis was convicted by a jury on all counts. At the close of the

government’s evidence, and then again at the close of defendant’s evidence, Mathis moved for a

judgment of acquittal based on the government’s alleged failure to provide sufficient evidence that

he was guilty of conspiracy to distribute and possession with intent to distribute methamphetamine.

The district court denied both motions.

       Mathis timely appealed. Before this court, he argues that the district court erred in denying

both his motion to suppress evidence and his motion for judgment of acquittal.



                                                 II

       Mathis argues that the district court erred in denying his motion to suppress evidence because

the search warrant issued for the Federal Express package was not based on an affidavit sufficiently

detailed to justify finding probable cause. A party, however, waives his right to appeal when he fails

to object to a magistrate judge’s report and recommendation, so long as the magistrate judge’s report

provides notice of the consequences of failure to object. See United States v. Campbell, 261 F.3d

628, 631-32 (6th Cir. 2001) (citing United States v. Walters, 638 F.2d 947, 949 (6th Cir. 1981)

(establishing the rule)); see also Thomas v. Arn, 474 U.S. 140, 155 (1985) (affirming

constitutionality of Sixth Circuit rule). In this case, the magistrate judge found that probable cause

existed for issuing the search warrant.       He therefore filed a report and recommendation

recommending that Mathis’s motion be denied. That report and recommendation included a

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US v. Mathis

footnote stating, “Any objection to this [r]eport and [r]ecommendation must be filed within ten (10)

days of its service or futher appeal will be waived. Thomas v. Arn, 474 U.S. 140 (1985); United

States v. Walters, 638 F.2d 947-950 (6th Cir. 1981); 28 U.S.C. Section 636(b)(1)(B) and (C).” J.A.

38. Mathis never filed any objections to that report and recommendation, which the district court

subsequently adopted in denying Mathis’s motion to suppress evidence.

       Any objection to that denial is therefore waived before this court. Though this court does

not enforce the waiver rule if doing so would result in an error so egregious that it would be a

miscarriage of justice, see United States v. 1184 Drycreek Rd., 174 F.3d 720, 725-26 (6th Cir. 1999),

defendant does not argue that this exception applies to this case nor does our review of the record

and applicable law in any way suggest that it does. Therefore, we affirm the district court’s denial

of Mathis’s motion to suppress because Mathis waived his right to appeal.



                                                III

        Mathis also argues that there was insufficient evidence to allow a reasonable juror to find

him guilty of possession with intent to distribute and conspiracy to distribute methamphetamine.

This court reviews a defendant's insufficiency of evidence claim by considering “whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443

U.S. 307, 319 (1979). We are required to “refrain from independently judging the credibility of

witnesses or weight of the evidence.” United States v. Price, 258 F.3d 539, 544 (6th Cir. 2001). On

these facts, we cannot deny that some rational trier of fact could have found Mathis guilty beyond

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No. 04-5256
US v. Mathis

a reasonable doubt of possession with intent to distribute and conspiracy to distribute

methamphetamine.

       The elements of the crime of possession with intent to distribute are (1) the defendant

knowingly, (2) possessed a controlled substance, (3) with intent to distribute. United States v.

Jackson, 55 F.3d 1219, 1225 (6th Cir. 1995). The government presented more than enough evidence

to meet its evidentiary burden. Mathis directed the police to over five grams of methamphetamine

in his house. He accepted delivery of over 200 grams of the substance, which had an estimated

value of $12,000. Though Mathis originally refused to accept the package, the package was

addressed to a “Glenn,” defendant’s first name, at his home address. A juror would be entirely

reasonable in inferring that Mathis knowingly possessed methamphetamine.

       There was also ample evidence that Mathis intended to distribute the drug. The jury heard

testimony that possession of over 200 grams of methamphetamine is inconsistent with personal use.

Moreover, the evidence found in his house more than suffices to establish that Mathis intended to

distribute the drug. The presence of drug scales, small plastic baggies, a partial recipe for producing

the drug, and a substance for diluting the drug all suggest Mathis intended to distribute

methamphetamine. Mathis’s explanation that he possessed these items only for his personal use is

irrelevant to our inquiry. Some rational trier of fact could certainly have found defendant guilty of

possession with intent to distribute methamphetamine on these facts. See Jackson v. Virginia, 443

U.S. at 319.

       The essential elements of a drug conspiracy are (1) an agreement to violate the drug laws,

and (2) each conspirator’s knowledge of, intent to join, and participation in the conspiracy. United

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US v. Mathis

States v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001). “A conspiracy may be inferred from

circumstantial evidence that can reasonably be interpreted as participation in the common plan.”

Price, 258 F.3d at 544 (quoting United States v. Blakeney, 942 F.2d 1001, 1010 (6th Cir. 1991)).

Mathis accepted a Federal Express package addressed to him that contained over 200 grams of

methamphetamine.      That package was sent from San Jose, California, where Mathis lived

approximately nine months earlier. Once Federal Express updated its tracking system to show that

the package had been delivered, Mathis received several phone calls from San Jose. Given that

Mathis possessed items used to distribute drugs, both the package’s origin and the phone calls he

received suggest that Mathis was participating in a common plan with people in San Jose to

distribute the methamphetamine in the package. Again, Mathis’s explanation that the people calling

him were interested in cars he was selling in San Jose is irrelevant. So is his claim that he does not

know Arturo Sanchez, the sender of the Federal Express package. The jurors were free not to

believe him. Moreover, even if Mathis does not know Sanchez, “once the conspiracy itself has been

proven to exist, it is not necessary to show that a defendant knew every member of the conspiracy.”

United States v. Maliszewski, 161 F.3d 992, 1006 (6th Cir. 1998). Based on these facts, the jury had

sufficient evidence upon which a rational juror could conclude beyond a reasonable doubt that

Mathis participated in a conspiracy to distribute methamphetamine.

       Therefore, the district court acted correctly in denying Mathis’s motions for judgment of

acquittal, because there was sufficient evidence to convict Mathis of possession with intent to

distribute and conspiracy to distribute methamphetamine. For these reasons, we AFFIRM the

judgment of the district court.

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