                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0449n.06

                                            No. 19-5964

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                    FILED
                                                                                    Jul 31, 2020
                                                                               DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                         )
                                                  )
        Plaintiff-Appellee,                       )          ON APPEAL FROM THE
                                                  )          UNITED STATES DISTRICT
v.                                                )          COURT FOR THE EASTERN
                                                  )          DISTRICT OF TENNESSEE
PATRICK RYAN SMITH,                               )
                                                  )
        Defendant-Appellant.                      )                   OPINION
                                                  )



Before: MOORE, CLAY, and McKEAGUE, Circuit Judges.

       KAREN NELSON MOORE. Patrick Smith was indicted for being a felon in possession

of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) after police searched his car and

discovered multiple guns and sets of ammunition. A nearby business owner noticed Smith’s car

parked in the driveway of a vacant-looking house and asked the police to investigate. Initially

suspecting Smith of trespass, the officers asked who he was and to whom the house belonged.

About eleven minutes into the stop, the officers discovered that Smith had guns and ammunition

in his car, and after the officers saw the guns, Smith told the officers that he was a felon.

       Smith moved to suppress the evidence coming out of that encounter under the Fourth and

Fifth Amendments, but the magistrate judge recommended that the district court deny Smith’s

request. R. 28 (R. & R. at 36) (Page ID #138). The district court adopted the magistrate judge’s

Report and Recommendation (“R&R”) and denied Smith’s motion to suppress. R. 29 (Mem. &
No. 19-5964, United States v. Smith


Order) (Page ID #139). The case proceeded to trial, and a jury convicted Smith of multiple counts

of being a felon in possession of a firearm and ammunition. R. 43 (Jury Verdict) (Page ID #204).

Smith timely appealed and solely challenges the district court’s denial of his motion to suppress

on Fourth Amendment grounds under Terry v. Ohio, 392 U.S. 1 (1968). We hold that Smith

forfeited his right to appeal the denial of his motion to suppress because his counsel did not object

to the R&R.

       “In this circuit, the failure to object to a magistrate judge’s Report and Recommendation

results in a [forfeiture] of appeal on that issue as long as the magistrate judge informs the parties

of the potential [forfeiture].” United States v. Wandahsega, 924 F.3d 868, 878 (6th Cir. 2019); see

also Berkshire v. Beauvais, 928 F.3d 520, 530–31 (6th Cir. 2019) (clarifying that the failure to file

objections to an R&R results in forfeiture, not waiver). The magistrate judge informed Smith of

the potential forfeiture here—noting that any objections must be filed within fourteen days and

that the failure to file timely objections forfeits the right to an appeal—but Smith failed to submit

objections. See R. 28 (R. & R. at 36 n.7) (Page ID #138). As Smith concedes, no exception to

forfeiture previously enumerated in our cases applies. And Smith’s argument that we should

excuse the forfeiture because his counsel was ineffective in failing to object to the R&R is better

suited to a collateral proceeding. We accordingly deem Smith’s argument forfeited and AFFIRM

the district court’s decision denying Smith’s motion to suppress.




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