            Case: 16-15928   Date Filed: 07/13/2018   Page: 1 of 4


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15928
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cr-20329-JLK-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

DINSEN RICHARD ST-TURBAIN,

                                                        Defendant-Appellant.

                       ________________________

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

                              (July 13, 2018)

Before WILSON, JILL PRYOR, and JULIE CARNES, Circuit Judges.

PER CURIAM:
              Case: 16-15928     Date Filed: 07/13/2018    Page: 2 of 4


      Dinsen Richard St-Turbain appeals his conviction for knowingly possessing

a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). St-Turbain

argues that the district court erred in adopting a magistrate judge’s report and

recommendation (R&R), which recommended that the district court deny St-

Turbain’s motion to suppress evidence obtained from a traffic stop. He argues that

the district court’s error came from failing to perform an independent, de novo

review of the transcript of the suppression hearing before the magistrate judge. St-

Turbain also argues that the district court abused its discretion in admitting his

prior conviction for possessing a firearm as a convicted felon under Federal Rule

of Evidence 404(b). After careful review, we remand on a limited basis.

      A district court judge may “designate a magistrate judge to conduct

hearings” on a motion to suppress and to submit to that district judge “proposed

findings of fact and recommendations for the disposition” of the motion. 28

U.S.C. § 636(b)(1)(B). Upon receiving such R&R, parties may file written

objections. Id. § 636(b)(1)(C). If a party has objected to any portion of the R&R,

the district judge “shall make a de novo determination of those portions of the

report . . . to which objection is made.” Id. Such de novo review “is essential to

the constitutionality of section 636,” because the section “allows a magistrate

[judge] to take over several functions that are otherwise reserved to Article III

judges.” Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (per


                                          2
                 Case: 16-15928       Date Filed: 07/13/2018       Page: 3 of 4


curiam); see also United States v. Elsoffer, 644 F.2d 357, 358–59 (5th Cir. 1981)

(per curiam).1

       We have held that when conducting such de novo review, a district judge

must ensure that the record “reflect[s] with certainty that a trial judge actually read

the transcript of the hearing before a magistrate [judge] on a motion to suppress,

before adopting the magistrate[ judge’s] recommendation.” Elsoffer, 664 F.2d at

358; see also Jeffrey S., 896 F.2d at 513 (“If the magistrate [judge] makes findings

based on the testimony of witnesses, the district court is obliged to review the

transcript or listen to a tape-recording of the proceedings.”); Wilson v. Cooke, 814

F.2d 614 (11th Cir. 1987) (per curiam).                      Further, “[t]he constitutional

safeguards . . . are such that an appellate court must be satisfied that a district judge

has exercised his non-delegable authority by considering the actual testimony, and

not merely by reviewing the magistrate[ judge’s] report and recommendations.”

Elsoffer, 644 F.2d at 359.

       Here, the district court stated only that it had reviewed the pleadings, the

R&R, and the parties’ responses. The transcript of the suppression hearing was not

filed until several weeks after the district court adopted the R&R. Further, the

district court stated on the record that it was according total deference to the


1
  See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc) (holding that
all decisions of the “old Fifth” Circuit handed down prior to the close of business September 30,
1981, are binding precedent in this circuit).
                                                3
              Case: 16-15928     Date Filed: 07/13/2018   Page: 4 of 4


magistrate judge’s credibility findings. Under these circumstances, the record

cannot reflect with certainty that the district court read the transcript of the

suppression hearing, as it was required to do. Accordingly, we retain jurisdiction

of this appeal and remand to the district court for the limited purpose of allowing it

to review the transcript of St-Turbain’s suppression hearing and state whether it

would still deny his motion to suppress. We decline to reach, at this time, whether

the district court erred in admitting St-Turbain’s prior conviction pursuant to Rule

404(b).

      LIMITED REMAND.




                                          4
