     Case: 12-10777       Document: 00512399076         Page: 1     Date Filed: 10/07/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          October 7, 2013

                                       No. 12-10777                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,
v.

SAMUEL FELIX,

                                                  Defendant-Appellant.



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            U.S.D.C. No. 2:09-CR-28-1


Before STEWART, Chief Judge, and KING and PRADO, Circuit Judges.
PER CURIAM:*
       Appellant Samuel Felix appeals the district court’s denial of his motions
to suppress evidence, arguing that the district court did not conduct a de novo
review of the magistrate’s report and recommendations. For the reasons stated
herein, we AFFIRM.
                                           I.
       After a routine traffic stop led to a search of the car he was driving, Felix
was charged with possession of 500 grams or more of a mixture containing

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                  No. 12-10777

methamphetamine with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(A)(viii). Alleging multiple constitutional challenges, Felix moved
during pretrial proceedings to suppress evidence of the drugs resulting from the
search and to suppress statements he made afterward. The district court
referred the motions to a magistrate judge, who subsequently held a suppression
hearing and recommended denying the motions. The district court gave Felix
one full business day and two partial business days to file objections to the
magistrate’s report.
      Felix filed a two-page objection to the report and recommendation, noting
that he had not had an opportunity to order or review a transcript of the
evidentiary hearing, that his initial encounter with the police officers was the
result of racial profiling, and that the officers’ request to search his vehicle was
made in violation of his constitutional rights. He requested that the district
court conduct a de novo review. The next day, the district court overruled Felix’s
objections to the report, adopted the report and recommendation, and denied his
motions to suppress. The district court stated that it had “made an independent
examination of the record” in the case. Felix later entered a conditional guilty
plea to the indictment. His plea agreement contained a provision preserving his
right to appeal the denial of his motions to suppress. This appeal ensued.
                                      II.
      On appeal, Felix argues that the district court did not conduct a de novo
review of the evidence before adopting the magistrate judge’s recommendations
on Felix’s motions to suppress. Specifically, he maintains that de novo review
was impossible because there was no transcript from the magistrate judge’s
hearing available and the audio recording was not part of the official record.
      The Government counters that Felix’s argument regarding the lack of de
novo review was waived because it was not expressly preserved in his
conditional guilty plea. It also argues that Felix’s objections to the magistrate

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                                  No. 12-10777

judge’s report did not meet the requisite specificity to trigger de novo review.
See Fed. R. Civ. P. 72(b)(2); see also Mosley v. Quarterman, 306 Fed. App’x 40,
43 n.2 (5th Cir. 2008); Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir.
Unit B 1982) (en banc), overruled on other grounds by Douglass v. United Servs.
Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996) (en banc). The Government further
argues that, in any event, we must presume the district court’s review was de
novo in the absence of any evidence to the contrary.
      Assuming arguendo that Felix’s conditional guilty plea preserved his
argument that the district court did not conduct a de novo review and that his
objections were sufficient, we nevertheless conclude that Felix’s argument fails.
      In the absence of evidence that the district court did not conduct a de novo
review, we assume that it did. See Warren v. Miles, 230 F.3d 688, 694 (5th Cir.
2000) (“The district court specified in its final judgment that it had reviewed the
entire record. Absent evidence to the contrary, this court is compelled to believe
that the district court performed this duty.” (internal citations omitted));
Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir. 1993) (“[T]he Court will assume
that the district court did its statutorily commanded duty in the absence of
evidence to the contrary.” (internal quotations omitted)); Longmire v. Guste, 921
F.2d 620, 623 (5th Cir. 1991) (“The district court’s order stated that ‘[f]or the
reasons set forth in the Magistrate’s Report to which an objection was filed; IT
IS ORDERED that . . . the defendant’s motion for summary judgment be
granted.’ We cannot say that this language indicates a failure to make a de novo
review of the magistrate’s report, the record, and plaintiff’s objections. . . . We
assume that the district court did its statutorily commanded duty in the absence
of evidence to the contrary.”); see also Louisiana v. U.S. Dep’t of Health &
Human Servs., 207 F. App’x 379, 381 n.3 (5th Cir. 2006) (per curiam)
(unpublished) (“[T]here is no requirement that the district court explicitly state



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                                  No. 12-10777

that it is reviewing contested portions of a magistrate judge’s report and
recommendation de novo.”).
       Moreover, as we have previously held, in an evidentiary suppression case
a district judge must “consider[] the actual testimony, and not merely . . .
review[] the magistrate’s report and recommendations.”          United States v.
Elsoffer, 644 F.2d 357, 359 (5th Cir.1981); see also Hernandez v. Estelle, 711 F.2d
619, 620 (5th Cir. 1983) (indicating that a district judge must either review the
transcript or listen to an audio recording); Calderon v. Waco Lighthouse for the
Blind, 630 F.2d 352, 356 (5th Cir. 1980) (holding that a district judge cannot
complete a de novo review “without at least reading a transcript or listening to
a tape recording of the testimony of the witness.”). There is no indication that
the district court did not do this here. Although the transcript was not prepared
until after the district court issued its order, the record shows that the
evidentiary hearing before the magistrate judge was “recorded by digital sound
recording” and that the district court docket sheet indicated that a “Digital File”
of the evidentiary hearing conducted by the magistrate judge was available to
the district court.
      Here, in its order overruling Felix’s objections, adopting the magistrate
judge’s report and recommendations, and denying Felix’s motions to suppress,
the district court stated that it had “made an independent examination of the
record in this case.” Thus, in the absence of evidence to the contrary, we will
assume that the district court fulfilled its “statutorily commanded duty” to
conduct a de novo review of the record prior to adopting the magistrates judge’s
report and recommendations on Felix’s motions to suppress. See Koetting, 995
F.2d at 40.
      In light of our holding affirming the district court’s denial of Felix’s
motions to suppress, we need not reach Felix’s argument that upon remand this
case should be assigned to a different district court judge.

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                                No. 12-10777

                                    III.
     For the foregoing reasons, we AFFIRM the district court’s denial of Felix’s
motions to suppress.




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