                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS
                                                                                FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                         DECEMBER 1, 2006
                                     No. 05-16406                        THOMAS K. KAHN
                               ________________________                      CLERK


                        D. C. Docket No. 04-00459-CR-1-CAP-1

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                            versus

LEMOND THOMAS,
a.k.a. Anthony Wright,

                                                              Defendant-Appellant.


                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                           _________________________

                                      (December 1, 2006)

Before BIRCH and BLACK, Circuit Judges, and PRESNELL,* District Judge.

PER CURIAM:

       *
         Honorable Gregory A. Presnell, United States District Judge for the Middle District of
Florida, sitting by designation.
       Lemond Thomas appeals his conviction and sentence for possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g) and 18 U.S.C.

§ 924(e). Thomas argues the district court erred by: (1) overruling his Batson

challenge; (2) denying his motion to suppress; (3) denying his motions for

judgment of acquittal; and (4) sentencing him as an Armed Career Criminal.

       After oral argument and a thorough review of the record, we affirm issues

one, three, and four without discussion.1

       As to the second issue, oral argument and a review of the record convinces

us that the district court committed clear error in re-adopting the credibility

findings in the Magistrate Judge’s Report and Recommendation (the Report) and

denying Thomas’s motion to suppress. The Report reconciled the conflicting

testimony of the officers, but was prepared without consideration of Ms. Mathis’s

testimony. At trial, the district court stated it was unable to reconcile all of the

conflicting testimony. While the court need not reconcile all of the evidence, it

needs to do more than re-adopt a report made without the benefit of testimony that

substantially undermines the basis of Officer Wagaman’s reasonable suspicion.

We therefore reverse the district court’s denial of Thomas’s motion to suppress,

vacate his convictions, and remand for a new trial, directing the district court to


       1
         Counsel for Thomas conceded issues three and four were raised in order to preserve the
issues for future review.

                                               2
grant the motion to suppress.

      REVERSED, VACATED AND REMANDED.




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