[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________
                                                                   FILED
                             No. 10-10366      U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                      APRIL 6, 2011
                  D.C. Docket No. 1:09-cr-20641-DLG-2 JOHN LEY
                                                        CLERK

UNITED STATES OF AMERICA,

                                            lllllllllllllllllllllPlaintiff - Appellee,

versus

EDWARD WARREN,

                                         lllllllllllllllllllllDefendant - Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 6, 2011)

Before BARKETT, HULL and KRAVITCH, Circuit Judges.

PER CURIAM:
      Defendant Edward Warren appeals his two drug convictions and sentences

for violations of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. On appeal,

Warren raises these issues:

      (1) whether the district court erred in denying his motion to suppress
      post-arrest statements as involuntary, in violation of Miranda v.
      Arizona, 

(1966);

      (2) whether the district court erred in finding that there was probable
      cause for his arrest and in not suppressing his post-arrest statements
      as the fruit of an illegal arrest;

      (3) whether there were multiple trial errors that cumulatively
      prejudiced Warren to the extent that he is entitled to a new trial; and

      (4) whether his 103 months’ sentence was both substantively and
      procedurally unreasonable.

      After review and with the benefit of oral argument, we conclude that issues

1, 3, and 4 lack merit. As to issue 2, the record shows that Warren’s motion to

suppress was filed the day before trial and claimed only that his post-arrest

statements were involuntary because he was not properly afforded his Miranda

warnings; it did not raise the probable cause for arrest argument. However, the

district court sua sponte addressed the probable cause issue, ruling that Warren

was given proper Miranda warnings, his post-arrest statements were voluntary,

there was probable cause for his arrest, and therefore, his post-arrest statements




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were admissible. On appeal, Warren claims that the district court erred in finding

probable cause for his arrest.

      In the past, we have exercised discretion to review an issue the district court

has actually ruled upon, finding that such a ruling preserves the issue for our

review. United States v. Lall, 

, 1290 (11th Cir. 2010). But, given

how the case proceeded, the government at the evidentiary hearing did not have

notice that probable cause for the arrest was an issue as to the post-arrest

statements. While we exercise our discretion to address the issue, the government

should have an opportunity to present evidence on the probable cause for arrest

issue. Thus, we affirm the district court’s rulings as to the Miranda issue, the

denial of the new trial, and the sentencing issues, but vacate the district court’s

ruling as to the probable cause for arrest issue and remand solely for an

evidentiary hearing as to the motion to suppress with reference to the probable

cause for arrest issue.

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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