FILED
NOT FOR PUBLICATION JAN 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10504
Plaintiff - Appellee, D.C. No. 4:09-cr-01673-FRZ-JJM-
1
v.
ALEJANDRO MIGUEL HERNANDEZ- MEMORANDUM *
FLORES, AKA Miguel Flores-Hernandez,
AKA Alejandro Hernandez,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Submitted December 27, 2011 **
San Francisco, California
Before: FARRIS, BEEZER, and LEAVY, Circuit Judges.
Alejandro Hernandez-Flores appeals his conviction of illegal reentry after
deportation in violation of 8 U.S.C. § 1326. Hernandez-Flores argues that the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court erred by admitting statements he made to a border patrol agent that
were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Because
Hernandez-Flores did not move to suppress the statements in the district court as
required by Rule 12(b)(3) of the Federal Rules of Criminal Procedure, we hold that
Hernandez-Flores waived this argument and therefore affirm the judgment.
We have jurisdiction over this case under 28 U.S.C. § 1291. The facts of the
case are known to the parties. We do not repeat them here.
Rule 12 of the Federal Rules of Criminal Procedure requires a motion to
suppress evidence to be raised before trial. F ED. R. C RIM. P. 12(b)(3)(C). A
party’s failure to do so is treated as a waiver of the issue. Id. at 12(e). The waiver
is absolute: this court cannot even review the issue for plain error. United States v.
Murillo, 288 F.3d 1126, 1135 (9th Cir. 2002). A court may grant relief from the
waiver if the party can show good cause as to why the motion was not timely
made. F ED. R. C RIM. P. 12(e).
Here, Hernandez-Flores did not move in the district court to suppress the
statements he made to the border patrol agent and has not provided any explanation
for his failure to do so. His brief argues the merits of the issue only. We hold that
Hernandez-Flores has waived this issue. Hernandez-Flores’s conviction is
therefore AFFIRMED.