                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  May 18, 2012
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                     No. 11-2104
 SERGIO JAVIER RODRIGUEZ,                    (D.C. No. 1:10-CR-01007-JCH-1)
                                                         (D.N.M.)
          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before GORSUCH and BALDOCK, Circuit Judges, and BRORBY, Senior
Circuit Judge. **


      A jury convicted Defendant Sergio Javier Rodriguez of possession with intent

to distribute 100 kilograms and more of marijuana in violation of 21 U.S.C.

§ 841(a)(1) and (b)(1)(B). Rodriguez filed this appeal, challenging the legality of

the search which produced the marijuana. The Government, in its brief, asserted

Defendant waived the suppression issue in the district court because of his trial

counsel’s failure to file a motion to suppress the evidence pursuant to our decision

      *
         This order and judgment is not binding precedent except under the doctrines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.
      **
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
in United States v. Burke, 633 F.3d 984 (10th Cir. 2011). In reply, Defendant agreed

trial counsel’s failure constituted waiver of the suppression issue.

      Defendant further acknowledges in his reply that although Federal Rule of

Criminal Procedure (Rule) 12(e) provides for a narrow exception to the waiver rule

where a party shows good cause for the failure, the exception is rare. And in this

case, Defendant recognizes any claim of ineffective assistance is not ripe for review

and must await a ruling in post-conviction proceedings.          Defendant expressly

concedes that the suppression issue raised on appeal was not raised to the district

court and that whether ineffective assistance of counsel constitutes good cause in this

case is a matter to be addressed in post-conviction collateral proceedings under 28

U.S.C. § 2255. 1 Nevertheless, Defendant requests his conviction be reversed.

      The parties are correct that Rule 12(b)(3)(C) requires a motion to suppress

evidence to be made before trial. Rule 12(e) states a party who does not file a timely

suppression motion “waives any Rule 12(b)(3) defense, objection, or request . . . .”

“When a motion to suppress evidence is raised for the first time on appeal, we must

decline review.” Burke, 633 F.3d at 987 (quoting United States v. Brooks, 438 F.3d

1231, 1240 (10th Cir. 2006)). Rule 12(e)’s “single narrow exception to the waiver

rule” allows relief for good cause. Id. at 988 (internal quotation marks omitted).

“We rarely, however, grant relief under the good-cause exception.” Id. Defendant


      1
        We commend Defendant’s appellate counsel for his forthrightness in making
these concessions.

                                          2
has not attempted to demonstrate good cause for the failure to raise the issue to the

district court other than to allege his trial counsel was ineffective. But as Defendant

admits, we consider “ineffective assistance of counsel claims on direct appeal in

limited circumstances,” and “only where the issue was raised before and ruled upon

by the district court and a sufficient factual record exists.” United States v. Flood,

635 F.3d 1255, 1260 (10th Cir. 2011). Defendant correctly notes the absence of

those factors in this case. Accordingly, Defendant’s conviction and sentence are

AFFIRMED.



                                        Entered for the Court,



                                        Bobby R. Baldock
                                        United States Circuit Judge




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