                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3763
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Misael Benitez, also known as           *
Benitez Arguello Paulo,                 *      [UNPUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: May 17, 2007
                                Filed: August 6, 2007
                                 ___________

Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.
                          ___________

PER CURIAM.

       Misael Benitez was convicted of possessing and conspiring to possess with
intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
The district court sentenced him to 135 months’ imprisonment. Benitez appeals from
his conviction and his sentence. We remand the case for further proceedings.

                                         I.

     On May 26, 2006, a hearing on Benitez’s motion to suppress evidence was
conducted before a magistrate judge, subsequent to which the magistrate judge issued
a report and recommendation in which she made factual findings and recommended
that Benitez’s motion be denied. Benitez filed an objection to the magistrate judge’s
report, contesting, inter alia, findings of fact contained therein. The district court
adopted the magistrate judge’s report and denied the motion to suppress, stating,
“Upon review, the Court agrees with [the magistrate judge’s] conclusions.”

                                          II.

       Benitez argues that the district court failed to conduct a de novo review of the
disputed portions of the report as required by 28 U.S.C. § 636(b)(1). The government
argues that we will presume that the district court had conducted the necessary de
novo review unless there is some affirmative evidence in the record to the contrary.1
We agree with Benitez that there is evidence in the record that a de novo review did
not take place.

      “[D]istrict courts may designate magistrate judges to conduct, inter alia,
evidentiary hearings on suppression motions and to submit to a district judge proposed
findings of fact and recommendations for the disposition of the matter.” United States
v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003); 28 U.S.C. § 636(b)(1). If a party

      1
        The government also suggests that Benitez has waived this argument because
he did not bring it to the attention of the district court. The government’s contention
is unavailing. We have elected to address the failure to conduct a de novo review in
other cases, even when the issue has been waived and was not raised by the parties.
United States v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (“Although Lothridge
does not raise the issue on appeal, because of our institutional concerns, his waiver,
whether inadvertent or intentional, does not affect our ability to notice the District
Court’s failure to conduct a de novo review.”); Nabors v. United States, 929 F.2d 354,
355 (8th Cir. 1990) (per curiam) (stating that although the issue of de novo review had
not been raised by the parties, the court would address it sua sponte). In light of its
institutional importance, failure to raise this issue before the district court will not
preclude us from considering the matter on appeal.


                                          -2-
objects to the magistrate judge’s report and recommendation with respect to a
dispositive matter, the district court judge must conduct a de novo review of the
disputed portion of the magistrate judge’s report and recommendation. Id. (citation
omitted). Failure to do so requires that the case be remanded to the district court so
the court may conduct a de novo review. See id. at 601 (remanding the case so that
the district court could undertake the necessary review); Jones v. Pillow, 47 F.3d 251,
253 (8th Cir. 1995) (same). When the magistrate judge’s report is based upon an
evidentiary hearing, this review requires the district court to, at a minimum, listen to
the tape of the hearing or read the hearing transcript. Jones, 47 F.3d at 252 (quotation
omitted).

        We will presume that the district court has undertaken a de novo review unless
there is affirmative evidence in the record indicating that the review was not
conducted. Id. at 253. In Jones, after a review of the relevant cases on this subject,
we held that the presumption of de novo review would be negated if: 1) the hearing
transcript was not available to the district court; 2) the district court gave no indication
that it had listened to the tape of the hearing; and 3) the district court did not state that
it had reviewed the file and records, but had only indicated review of the findings and
rulings and the defendant’s objections. Id.

        This case fall squarely within Jones. The transcript was not available at the
time of the district court’s review,2 the district court did not state that it had listened
to the tapes, and the district court did not state that it had reviewed the records or files.
Under Jones, we cannot presume that the district court conducted the necessary review
in light of these indications to the contrary.




       2
       According to the docket, the hearing transcript was not available until months
after the district court had adopted the magistrate judge’s report and
recommendations.

                                            -3-
       The case is remanded so the district court may conduct the necessary review.
We will retain jurisdiction over this appeal. Because the record does not allow us to
conclude that the district court undertook a de novo review, we will not address the
other issues raised by Benitez on appeal. See Hudson v. Gammon, 46 F.3d 785, 786
(8th Cir. 1995) (declining to reach the merits because of failure to conduct de novo
review).
                        ______________________________




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