USA v. Rocky Creed Kelly

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12222
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROCKY CREED KELLY,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:20-cr-00030-SCJ-JCF-1
____________________
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2 Opinion of the Court 23-12222
Before J ORDAN , R OSENBAUM, and G RANT , Circuit Judges.
PER CURIAM:
Rocky Creed Kelly appeals his convictions for receipt, distri-
bution, and possession of child pornography, arguing that the dis-
trict court erred in denying his motion to suppress because the
search warrant was not supported by probable cause and the good-
faith exception did not apply. The government responds by mov-
ing for summary affirmance, arguing that Mr. Kelly did not object
to the magistrate judge’s report and recommendation (“R&R”) rec-
ommending denial of his motion to suppress and adopted by the
district court, so he waived any argument about the denial of his
motion to suppress.
Summary disposition is appropriate either where time is of
the essence, such as “situations where important public policy is-
sues are involved or those where rights delayed are rights denied,”
or where “the position of one of the parties is clearly right as a
matter of law so that there can be no substantial question as to the
outcome of the case, or where, as is more frequently the case, the
appeal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). A motion for summary affirmance postpones
the due date for the filing of any remaining brief until we rule on
the motion. See 11th Cir. R. 31-1(c).
A party failing to object to a magistrate judge’s findings or
recommendations contained in a R&R waives the right to chal-
lenge on appeal the district court’s order based on unobjected-to
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23-12222 Opinion of the Court 3
factual and legal conclusions if the party was informed of the time
period for objecting and the consequences on appeal for failing to
object. See 11th Cir. R. 3-1. In the absence of a proper objection,
however, we may review on appeal for plain error, if necessary, in
the interests of justice. See id.
We grant the government’s motion for summary affirmance
because its position is clearly correct as a matter of law. See Groen-
dyke Transp., Inc., 406 F.2d at 1162. Mr. Kelly waived his right to
challenge the magistrate judge’s factual and legal conclusions be-
cause he failed to object to the R&R. See 11th Cir. R. 3-1. In an
order filed alongside the R&R, the magistrate judge informed Mr.
Kelly that he had 14 days to object to the R&R and that failure to
do so would waive his right to challenge the conclusions on appeal.
Although he requested an extension of time to file objections,
which was granted, Mr. Kelly never objected to the R&R, and thus
waived his right to appeal the conclusions in the R&R. See id.
Thus, the government is clearly correct as a matter of law that Mr.
Kelly waived his right to appeal the conclusions in the R&R. See
Groendyke Transp., Inc., 406 F.2d at 1162.
Accordingly, because the government’s position is clearly
correct as a matter of law, we GRANT the motion for summary
affirmance.
AFFIRMED.
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