                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                         December 3, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 14-5145
                                                 (D.C. No. 4:13-CR-00229-CVE-1)
SAMUEL GARCIA-ESCALERA, a/k/a                               (N.D. Okla.)
Pancho, a/k/a Panfilo Waumuchil Soyte,

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
                  _________________________________

      Samuel Garcia-Escalera appeals multiple convictions arising from law

enforcement’s 2013 search of his residence. Specifically, Garcia-Escalera challenges

the district court’s denial of his motion to suppress the evidence police discovered

during that search. Because Garcia-Escalera failed to raise the particular argument

below that he now asserts on appeal, we conclude Garcia-Escalera waived his current

challenge and we affirm.




      *
         This order and judgment is not binding precedent, except under the doctrines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. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
                                    BACKGROUND

      While searching a Tulsa home, police found Todd Diaz hiding in a shower.

They also found more than 500 grams of methamphetamine. Eager to cooperate with

police, Diaz rolled on his supplier and led police to the residence where he said he

obtained drugs and delivered payments. Based on an affidavit containing the

information Diaz provided, police obtained a warrant to search that home, too. There

they found Garcia-Escalera, a firearm and ammunition, multiple cell phones, papers

containing “drug notations,” and more than $4,000 in cash. App. at 33.

      Facing criminal charges, Garcia-Escalera filed a motion to suppress this

evidence. Specifically, he alleged Officer W.R. Mackenzie made false statements in,

and omitted material information from, the affidavit he submitted in support of his

application for a warrant to search Garcia-Escalera’s home. If the district court

disregarded the false statements in the affidavit and took into account the omitted

ones, Garcia-Escalera insisted, Mackenzie’s affidavit was insufficient to establish

probable cause. See Franks v. Delaware, 438 U.S. 154, 155-56 (1978); United States

v. Kennedy, 131 F.3d 1371, 1376 (10th Cir. 1997).

      The district court rejected Garcia-Escalera’s Franks argument, concluding

Mackenzie’s affidavit contained neither false statements nor material omissions.

Then it sua sponte ruled the affidavit was sufficient on its face to provide the

magistrate judge with probable cause to issue the search warrant. Accordingly, the

district court denied Garcia-Escalera’s motion to suppress.



                                            2
      A jury subsequently found Garcia-Escalera guilty of conspiracy to distribute

methamphetamine or possess methamphetamine with intent to distribute, maintaining

a drug-involved premise, possessing a firearm while being illegally or unlawfully

present in the United States, and possessing a firearm in furtherance of a drug-

trafficking crime. He also pled guilty to one count of attempting to corruptly

persuade a witness. The district court imposed a 300-month prison sentence, and

Garcia-Escalera appealed.

                                     DISCUSSION

      On appeal, Garcia-Escalera doesn’t challenge the district court’s rejection of

his Franks argument. Instead, he asserts the district court erred in sua sponte finding

Mackenzie’s affidavit sufficient on its face to provide probable cause for the warrant.

But Garcia-Escalera didn’t raise this argument in his motion to suppress. And under

the version of Fed. R. Crim. P. 12(e) in effect at the time of Garcia-Escalera’s trial

and sentencing,1 a defendant who fails to include a specific argument in a pretrial


      1
         The 2002 version of Fed. R. Crim. P. 12(e) stated, “A party waives any Rule
12(b)(3) defense, objection, or request [which includes motions to suppress evidence]
not raised by the deadline the court sets under Rule 12(c) or by any extension the
court provides.” United States v. Burke, 633 F.3d 984, 987 (10th Cir. 2011)
(alteration in original) (quoting Fed. R. Crim. P. 12(e) (2002) (repealed 2014)). The
day before Garcia-Escalera filed his notice of appeal, however, a new version of Rule
12 took effect. Rather than stating a party “waives” a Rule 12(b)(3) defense by
failing to raise it before the district court’s deadline, the current version of Rule 12
simply characterizes such a defense as “untimely.” Fed. R. Crim. P. 12(c)(3). We
acknowledge the 2014 amendment might call into question Burke’s waiver analysis.
But we need not resolve whether Burke remains good law because Garcia-Escalera
doesn’t challenge the government’s assertion that the 2002 version of Rule 12 applies
in this case. See United States v. Almaraz, 306 F.3d 1031, 1041 (10th Cir. 2002)
(“[A]rguments not briefed on appeal are waived.”).
                                            3
motion to suppress “waives”2 that argument for purposes of appeal absent a showing

of good cause to excuse the omission. Burke, 633 F.3d at 988, 991.

      Garcia-Escalera doesn’t suggest he can satisfy Rule 12(e)’s good-cause

exception.3 Instead, he urges us to address his argument because the district court

“specifically consider[ed] whether or not the four corners of the affidavit provided

probable cause . . . .” Aplt. Br. at 10. In other words, Garcia-Escalera asks us to adopt

another exception to Rule 12(e)’s waiver provision—one that applies when an

appellant advances an argument for the first time on appeal that the district court sua

sponte considered below.

      We need not decide whether such an exception exists; even assuming it does,

Garcia-Escalera can’t invoke it here. To preserve an argument for suppression under

Rule 12(e), a defendant must present the same “particular argument” to this court that

the defendant advanced before the district court. United States v. Augustine, 742 F.3d

1258, 1265-66 (10th Cir.), cert. denied, 134 S. Ct. 2155 (2014) (concluding that for

purposes of Rule 12(e), argument that Miranda waiver was involuntary because it

“was coerced by threats and promises of leniency” was distinguishable from

argument that Miranda waiver was involuntary because defendant was under

      2
         We recognize that the term “waiver” typically applies only to an “intentional
relinquishment or abandonment of a known right,” rather than to “an inadvertent
‘failure to make the timely assertion of a right.’” Burke, 633 F.3d at 990 (quoting
United States v. Olano, 507 U.S. 725, 733 (1993)). Nevertheless, we have previously
held that for purposes of Rule 12(e), the term “waiver” applies to some acts we
would typically describe as mere forfeitures. Id. at 990-91.
       3
         Because Garcia-Escalera makes no attempt to invoke Rule 12(e)’s good-
cause exception, we need not consider whether it applies to the facts of this case. See
Almaraz, 306 F.3d at 1041.
                                           4
influence of illicit drugs). Thus, assuming Rule 12(e) contains an exception for

arguments the district court sua sponte considered below, we conclude that

hypothetical exception would apply only if the district court sua sponte considered

the same “particular argument” the appellant subsequently advanced on appeal. Id.

       Here, Garcia-Escalera argues that Mackenzie’s affidavit was deficient because

it was “based . . . solely on the insufficiently corroborated statements of Diaz, a self-

interested criminal informant.” Aplt. Br. at 12. And according to Garcia-Escalera,

“[t]here is no probable cause when police rely solely on the statements of an

unproven informant whose self-serving allegations are insufficiently corroborated by

other evidence.” Id.

       But the district court didn’t specifically accept or reject the legal principle

Garcia-Escalera advances on appeal, let alone apply it to the facts of this case.

Instead, it generally concluded Mackenzie’s affidavit was sufficient to establish

probable cause. And while Garcia-Escalera suggests the district court implicitly

considered and rejected his lack-of-corroboration argument by finding the affidavit

sufficient to establish probable cause, we think it just as likely the district court

overlooked this argument entirely. We can hardly fault it for doing so given Garcia-

Escalera’s failure to raise the argument in the first place.

       So we’re back where we started. Garcia-Escalera waived his insufficient-

corroboration argument under Rule 12(e) by failing to raise that “particular

argument” below. See Augustine, 742 F.3d at 1265-66. And even assuming Rule

12(e)’s waiver provision doesn’t apply to arguments a district court sua sponte

                                             5
considered below, it still applies here because the district court didn’t consider the

particular argument Garcia-Escalera now asserts. We therefore decline to consider

whether Mackenzie’s affidavit was so lacking in corroboration as to preclude a

finding of probable cause. Because that’s the only argument Garcia-Escalera makes,

we affirm the district court’s denial of his motion to suppress.


                                            Entered for the Court


                                            Nancy L. Moritz
                                            Circuit Judge




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