                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                   December 11, 2015
                                TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                      Clerk of Court

 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,

 v.                                                     No. 15-2056
                                              (D.C. No. 5:14-CR-00512-KG-1)
 CARLOS FRANCO,                                         (D. of N.M.)

              Defendant - Appellant.


                           ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, HOLMES, and MATHESON, Circuit
Judges.


      Carlos Franco pleaded guilty to federal firearm charges under a plea

agreement that allowed him to appeal the district court’s denial of his motion to

suppress evidence. Because Franco waived the sole argument he presents on

appeal, we affirm the district court’s denial of the suppression motion.

      In the early morning hours of June 5, 2013, a Chaves County deputy sheriff

initiated a traffic stop of Franco while Franco parked his girlfriend’s vehicle. The



      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
stop occurred on a residential street in Roswell, New Mexico, in front of a home

belonging to Franco’s friend. The officer searched the vehicle and discovered a

firearm, which resulted in Franco’s conviction.

      Franco filed a motion to suppress evidence of the firearm in the district

court, arguing: (1) the police lacked reasonable suspicion to initiate the traffic

stop, (2) the search was not a valid search incident to arrest, (3) the gun was not

in plain view, and (4) the impoundment of the car was illegal. At the suppression

hearing, the arresting officer testified that while on patrol he saw a vehicle

stopped in the middle of the street with its lights off. He then saw the glow of the

reverse lights and watched the car back into a dirt area in front of the home. The

officer believed the act of stopping in the middle of the road violated section 66-

7-349 of the New Mexico Statutes, and this violation justified his stop. The

district court denied the suppression motion.

      On appeal, Franco presents only one argument: the officer lacked

reasonable suspicion to initiate the stop because his interpretation of section 66-7-

349 was an unreasonable mistake of law.

      The statute, titled “Stopping, standing or parking outside of business or

residence districts,” provides in part:

             A. Upon any highway outside of a business or residence
             district, no person shall stop, park or leave standing a
             vehicle, whether attended or unattended, upon the paved or
             main-traveled part of the highway when it is practicable to
             stop, park or leave the vehicle off such part of the

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             highway, but in every event an unobstructed width of the
             highway opposite a standing vehicle shall be left for the
             free passage of other vehicles and a clear view of such
             stopped vehicles shall be available from a distance of two
             hundred feet in each direction upon the highway.

N.M. Stat. Ann. § 66-7-349 (West) (emphasis added). Franco argues that because

he was inside a residence district at the time of the stop, the statute clearly did not

apply, and the officer’s interpretation of the statute—that it did apply—was an

unreasonable mistake of law. The Supreme Court recently ruled that while

reasonable mistakes of law can justify traffic stops, unreasonable mistakes of law

cannot. See Heien v. North Carolina, 135 S. Ct. 530, 540 (2014).

      But Franco failed to make this argument in the district court. While his

brief in support of the suppression motion discussed lack of reasonable suspicion,

it did so only in conclusory terms. It did not mention the residential parking

statute or whether the officer’s interpretation of the statute was reasonable.

Franco’s failure to make the argument below waives it on appeal. See Schrock v.

Wyeth, Inc., 727 F.3d 1273, 1284 (10th Cir. 2013) (“Arguments that were not

raised below are waived for purposes of appeal. This rule applies when a litigant

changes to a new theory on appeal that falls under the same general category as

an argument presented at trial or presents a theory that was discussed in a vague

and ambiguous way.”) (citation and internal quotation marks omitted). In

addition, Franco’s counsel did not raise the statutory issue at any time during the




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district court’s lengthy suppression hearing. The government had no opportunity

to respond to the argument, and the district court had no occasion to rule on it.

      Nor can Franco’s appeal be saved by plain error review. Even if the error

was plain, our decision in United States v. Burke, 633 F.3d 984 (10th Cir. 2011),

forecloses relief in this case. In matters of pretrial suppression, Federal Rule of

Criminal Procedure 12(c)(3) instructs us to disregard any arguments not presented

below. 1 We stated in Burke that this rule “applies not only to the failure to make

a pretrial motion, but also to the failure to include a particular argument in the

motion.” 633 F.3d at 987. Although Rule 12 contains an exception for “good

cause,” we have described this exception as “narrow” and we “rarely . . . grant

relief” under it. Id. at 988; see also United States v. Augustine, 742 F.3d 1258,

1266 (10th Cir. 2014), cert. denied, 134 S. Ct. 2155 (2014). We have specifically

held that an attorney’s failure to raise an argument in a suppression hearing

cannot qualify as “good cause.” See Augustine, 742 F.3d at 1266 (“[W]e do not

read Burke as expanding the good-cause exception such that it swallows the

waiver rule articulated in [Rule 12], as it would if good cause warranting relief



      1
         In Burke, we found such arguments “waived.” 633 F.3d at 987–88.
Since our decision in Burke, section (e) of Rule 12, which discussed “waiver,”
was removed and replaced by section (c)(3), which does not use the word
“waiver.” The Advisory Committee’s notes, however, state that this change was
meant to clarify that intent—normally a requirement for “waiver” in the context
of a criminal case—is not required under section (c)(3). The change was not
substantive.

                                         -4-
from waiver existed every time a defendant’s attorney inadvertently failed to raise

a suppression argument.”).

      Franco cannot show good cause to excuse his waiver. Although the

Supreme Court decided Heien after Franco’s suppression hearing, the pre-Heien

law in this circuit presented Franco with ample opportunity to raise the statutory

issue in the district court. See, e.g., United States v. Nicholson, 721 F.3d 1236,

1238 (10th Cir. 2013) (“Although an officer’s mistake of fact can still justify a

probable cause or reasonable suspicion determination for a traffic stop, an

officer’s mistake of law cannot.”).

      Thus, in accord with Burke, we cannot review Franco’s claims for plain

error. See Burke, 633 F.3d at 991 (“Accordingly, we hold Rule 12’s waiver

provision, not Rule 52(b)’s plain error provision, governs motions to suppress

evidence, including specific arguments to suppress evidence, raised for the first

time on appeal. Such motions and arguments are waived absent a showing of

good cause for why they were not raised below. We therefore refuse to consider

Burke’s affidavit argument, even under a plain error analysis.”).

      We AFFIRM the district court’s denial of Franco’s suppression motion.

                                                     ENTERED FOR THE COURT

                                                     Timothy M. Tymkovich
                                                     Chief Judge




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