UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

v. 

SAMUEL GARCIA-ESCALERA, a/k/a 

Pancho, a/k/a Panfilo Waumuchil Soyte, 

 Defendant - Appellant. 

No. 14-5145 

(D.C. No. 4:13-CR-00229-CVE-1) 

(N.D. Okla.) 

_________________________________ 

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 This order and judgment is not binding precedent, except under the doctrines 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. 

FILED 

United States Court of Appeals

Tenth Circuit 

December 3, 2015

Elisabeth A. Shumaker 

Clerk of Court

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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. 

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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 drugtrafficking 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.”). 

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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 goodcause exception, we need not consider whether it applies to the facts of this case. See 

Almaraz, 306 F.3d at 1041. 

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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 selfinterested 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 GarciaEscalera’s failure to raise the argument in the first place. 

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

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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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